(1.) THIS is a reference by a learned single Judge on an application for refund of court-fees filed by the appellant in a second appeal whose appeal was dismissed summarily.
(2.) THE facts leading up to reference lie in a very narrow compass. After the appellant's appeal was dismissed in limine by an order of the learned single Judge dated the 10th December, 1965 ( the date 15th March, 1966, which has been mentioned in the order as the date of the dismissal of the appeal appears to be wrong for the 10th December, 1965), the appellant applied under s. 61 of the Rajasthan Court Fees and Suits Valuation Act, 1961 ( Act No. 23 of 1961, herein after called the Act) that the court-fee paid by him on the memorandum of appeal filed by him in this Court be refunded, [the appeal having been dismissed under O. 41 r. 11 C. P. C. THE learned single Judge seems to have himself recognised, and, in our opinion, rightly, that no hard and fast rules can be laid down for refund of court-fees in cases of this type. He, however, felt persuaded to make the present reference as he was of the opinion that it would be desirable if generally speaking, a uniform practice were to be adopted in this regard. This is how the present reference has come before us.
Sec. 61 of the Rajasthan Court Fees and Suits Valuation Act, 1961, reads as follows - "61. Refund in cases of rejection of plaint etc - (1) Where a plaint is rejected under O. 7, Rule 11 or a memorandum of appeal is rejected under Order 41, Rules 3 or 11 of the Code of Civil Procedure, 1908, (Act No. 5 of l908), the Court may, in its discretion, direct the refund to the plaintiff or the appellant of the fee either in whole or in part, paid on the plaint or memorandum of appeal which has been rejected. (2) Where a memorandum of appeal is rejected on the ground that it was not presented within the time allowed by the law of limitation, one-half of the fee shall be refunded. Now before we proceed to answer the reference, we should like to point out, with all respect, that the language of sec. 61 in so far as the disposal of an appeal under O. 41 r. 11 C. P. C. is concerned, is by no means as happy as we should have liked it to be. A reference to that rule would clearly go to show that what is provided to be done thereunder is not the rejection of the memorandum of appeal as such but dismissal of the appeal itself.
Be that as it may, the substance of the matter unmistakably appears to us to be, in so far as we are concerned in the present reference, that the legislature has vested a discretion in the court even where an appeal is dismissed under O. 41 r. 11 C. P. C. to direct a refund of the court-fee paid by the appellant either in whole or in part as the case may be. For the sake of clarity, we might formulate the question which has been raised in this reference somewhat like this: "where an appeal is dismissed under O. 41 r. 11 C. P. C. , what would be the principles upon which the court should act to regulate its discretion in the matter of the refund of courtfees paid on the memorandum of appeal filed before it when such a question arises before it. "
At the very outset, we should like to state that like every statutory discretion the one under sec. 61 of the Act, must be exercised judicially and not in an arbitrary or capricious manner. We should further like to point out in this connection that it is neither possible nor desirable to lay down any rigid formulae to govern the exercise of a discretion like this which must in the very nature of things depend upon the facts and circumstances of each appeal and some of these considerations appear to us to be whether it is a case of first or second appeal, whether the points sought to be raised in it are of law or of fact and if they are of law, whether the law is well-settled or if they are of fact, whether the fact is established to the hilt by overwhelming evidence on the record or again whether it is a case of concurrent findings of fact upheld by the two courts below or whether any points of law and fact raised in the case are at all arguable or are incapable of being further agitated and still further, if we may say so, the persistence and the pertinacity with which such points may be placed before the court and judicial time expended at the time of the admission of the appeal. All these matters, in our opinion, are bound to vary from case to case and these can only be left to the discretion of the presiding Judge for being taken into consideration in connection with the question as to refund of the court-fee.
With a view to affording some kind of guide-lines in connection with this matter, however, we will illustrate by some specific examples what we have in mind.
Now suppose, the appeal for admission is a first appeal wherein the appellate court is a court of fact as well as of law but the appeal is dismissed summarily as it is of opinion that the judgment under appeal calls for no interference and in such a case a prayer is then made by the appellant for refund of the court-fee paid by him on the memorandum of appeal. We are inclined to think that in the case of first appeals, the discretion for the refund of the full amount of court-fee paid deserves to be exercised far more liberally than in the case of second appeals, the reason being that as we look at the matter of appeals, a party should have at least one reasonable right of appeal.
Now take the case of a second appeal. Suppose the appeal stands concluded by a pure finding of fact and that too of a concurrent nature of the two courts below and has, therefore, to be dismissed for the simple reason that the court is not competent to entertain it, We are inclined to think in the case of such appeals that the refund of full court-fee should hardly be called for though this appears to us to have been the course adopted in some of the cases brought to our notice. The correct course in cases of this type should be, generally speaking, that no more than half the court-fee should be allowed to be refunded. We may invite attention in this connection to sub-sec. (2) of sec. 61 of the Act which in so many words enacts that where a memorandum of appeal is rejected on the ground of limitation, only one-half of the fee shall be refunded. The same rule should more or less be held to be applicable in such cases.
To take yet another category of second appeals where the findings of the two courts below may be divergent but accepting those of the first appellate court, the second appeal is dismissed summarily. In this type of cases also it seems to us that half of the court-fee may well be refunded.
We next turn to another set of considerations which appear to us to equally govern first or second appeals in this behalf. In the case of the admission of a first or a second appeal, a situation may some times arise where an appeal stands adversely affected at the admission stage by a decision of this Court or of the Supreme Court which may have been given after the institution of the appeal or given earlier but reported later; or, again, where such an appeal is adversely affected by certain statutory changes brought into operation with retrospective effect, in all such cases, it seems to us that the refund of the full amount of court-fee may properly be allowed. On the other hand, if a first or second appeal involves a question of law and that question stands settled by decisions of our own Court or by decisions of the Supreme Court and the appeal is dismissed in limine, or the point of law that is raised is so elementary or clear that no other view can reasonably be taken than that of the court or courts below, we do not think that refund of more than half the court-fee should be allowed in such cases.
We are also mindful in this connection of a class of cases where some of the grounds taken in the memorandum of appeal which may or may not be pressed before the court are based on mis-statement of fact or misreading of evidence and smack of an attempt to mislead the court, and in this category of cases we are definitely disposed to think that no refund of court-fee should at all be allowed.
Before we conclude we may add that this list is not intended by us to be exhaustive of all the kinds of cases that may occur of the combinations or variations of circumstances that may be exemplified by them in actual practice, and all that we should like to emphasise in the end once again is that these will have to be considered by the presiding Judge himself in a judicious manner and then a proper decision come to as to whether the whole or a part of the court-fee payable on the memorandum of appeal be allowed to be refunded or not at all.
The reference is answered accordingly and the case will now go back to the learned single Judge for the decision of the application for refund in the civil second appeal out of which this reference arises. .