KISTOORMAL GULABCHAND Vs. SURAJ KARAN UDAIRAJ
HIGH COURT OF RAJASTHAN
SURAJ KARAN UDAIRAJ
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JAGAT NARAYAN, J. -
(1.)THIS is a revision against an order of the trial court refusing to issue a certificate for the refund of Court fee amounting to Rs. 300/-/-under sec. 63 (2) of the Rajasthan Court Fees and Suits Valuation Act, 1961.
(2.)THE applicant filed a suit on 29-8-63 for the recovery of Rs. 4,858. 50 against the defendant. THE plaint was written on 5 impressed Court Fee stamps of Rs. 50/-/- and 5 of Rs. 10/-/- each, one adhesive Court Fee stamp of Rs. 5/-/-and 2 of Rs. 2/-/- were affixed to the impressed Court Fee stamps. . An objection was taken by the defendant that the plaint was not properly stamped in accordance with Rule 14 of the Rajasthan Court Fee and Suits Valuation Rules, 1961. This objection was not decided by the trial court till after the entire evidence had been recorded and the arguments were heard. It was held that the plaint was not pro-perly stamped. THE plaintiff then purchased three Court Fee stamps of Rs. 100/-/-each and filed them. THEse stamps were also punched as the previous stamps on which the plaint was written had been punched. THE suit was decreed on 29-5-1966. On the date of decision after it had been given, the present application for the refund of an amount of Rs. 300/-/- paid as Court fee in impressed stamps of smaller denominations on which the plaint had been written was made under sec. 63 (2 ). THE trial court held that impressed Court Fee stamps of smaller denomination had not been purchased by mistake or in inadvertence on the ground that no affidavit of the Advocate who presented the plaint on behalf of the plaintiff had been filed, An affidavit of the applicant had been filed and no reasonable man can entertain any doubt that impressed stamps in smaller denomination were purchased by mis-take or inadvertence.
The present revision application has been opposed on behalf of the defendant on the ground that the court has no power to order refund of any fee paid by mistake or inadvertence under sec. 63 (2) but that an application for the refund should be made to the Collector under rule 27 read with Rule 30 of the Rajasthan Stamp Rules. I am of the opinion that under sec, 63 (2), it is for the court to order of refund. Secs. 61, 62 and 63 deal with refunds. They run, as follows: - "61. Refund in cases of plaint, etc.- (1) Where a plaint is rejected under Order 41, Rules 3 or 11 of the Code of Civil Procedure, 1908 (Act No. 5 of 1908), 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. " 62. Refund in cases of remand.- (1) Where a plaint or memorandum of appeal which has been rejected by the lower court is ordered to be received, or where a suit is remanded in appeal for a fresh decision by the lower court making the order or remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal; and, if the remand is on second appeal, also on the memorandum of appeal in the first appellate court and if the remand is on an appeal from the judgment of single Judge of the High Court of Rajasthan under any law for the time in force, also on the memorandum of second appeal and memorandum of appeal and memorandum of appeal in the first appellate court. (2) Where an appeal is remanded in second appeal or in an appeal from the judgment of a single judge of the High Court of Rajasthan under any law for the time being in force, for a fresh decision by the lower appellate court, the High Court, remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of second appeal and of the full amount of fee paid on the memorandum of second, and the memorandum of appeal from the judgment of a single Judge of the High Court of Rajasthan under any law for the time being in force, if the remand is on such latter appeal: Provided that, no refund shall be ordered if the remand was caused by the fault of the party who would otherwise be entitled to a refund : Provided further that, if the order of remand does not cover the whole of the subject matter of the suit, the refund shall not extend to more than so much fee as would have been originally payable on that part of the subject matter in respect whereof the suit has been remanded. " 63. Refund on ground of mistake.- (1) Where an application for a review of judgment is admitted on the ground of some mistake or error apparent on the face of the record, and on re-hearing the court reverses or modifies its former decision on that) ground, it shall direct the refund to the applicant of so much of the fee paid on the application as exceeds the fee payable on any other application to such court under Art. 11 (g) and (h) of Schedule II. (2) Any fee paid by mistake or inadvertence shall be ordered to be refunded to the person paying the same. It is not specifically mentioned in sec. 63 (2) that the order of refund shall be made by the court. But a perusal of all the three sections and the rules contained in Chapter IV of the Rajasthan Court Fees and Suits Valuation Rules goes to show that it is the court which can order refund under sec. 63 (2) and not the Collector or any other Revenue authority. Rule 24 lays down that : "a court fee stamp shall be deemed to be damaged or spoiled - (a) When such stamp or the paper on which it is impressed or fixed has been inadvertently spoiled, obliterated or by any means rendered permanently unfit for use, whether the said paper be written on or not, or (b) When by reason of some material order in the writing or copying of a stamped document it has become of no avail; or (c) When the purpose intended to be effected by a stamped document has been effected by some other document duly stamped, or (d) When by reason of death or other cause the transaction intended to be effected by a stamped document has become impossible of completion, or (e) When a duly stamped document is returned or rejected on account of any error or informality in the drawing up or signing thereto and such document cannot be used again after removing the defect".
On behalf of the defendant it was contended that the Court Fee which the applicant chose to get refunded is covered by clause (c) of Rule 24. In my opinion, it is not so covered as the plaint is written on the stamps of smaller denominations and these stamps cannot be returned to the plaintiff. Rules 26 and 27 contemplate damaged or spoiled stamps in the possession of the person who applies for refund. These rules can have no application to the present case. In the present case, the court alone can grant a certificate for the refund of the court fees as the stamps themselves cannot be returned to the applicant by the court. In this connection, the decision in Harihar Guru vs. Anand Mahanty (1) may be referred to. The question which arose in that case was whether under sec. 15 of the Indian Court Fees Act it was open to the court to grant a certificate in respect of the refund of the court fees. It was observed : "the said court fee papers of rupees nine hundred and fifty have been punched and cancelled, and they cannot be produced with this certificate, inas much as they continued affixed on the said memorandum of appeal which is filed in the record in this court. "
I accordingly allow the revision application and direct the trial court to issue a certificate to enable the applicant to get a refund of Rs. 300/-/- less deductions of the case, I leave the parties to bear their own costs because the defendant is hardly a proper party to this revision application. .
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