Decided on June 23,1967

SBT Respondents


- (1.) I am inclined to the view (in respectful agreement with the view taken in Yandra Brahmam, in Re. (1957) 1 An. W. R.167) and in equally respectful disagreement with that taken in Zahoorunnissa Begum v. Mohammed Ali (1962) 1 M. LJ. 331 that in order to attracts. 70 of the Kerala Court Fees and Suits Valuation Act, the mistake or inadvertence must relate directly to the payment of court fee. If, on the document as it is filed in court, whether it be a plaint, memorandum of appeal, petition or application, the fee paid is correct and not excessive, no refund can be allowed because the party's proper remedy lay in some other, and, from the point of court fee cheaper, proceeding, any more than it can be allowed if no proceeding lay at all. But, here the memorandum of appeal originally presented was returned by the office without being registered and numbered on the ground that no second appeal lay by reason of S.102 of the Code. That being so, I do not think it can be said that the memorandum of appeal was filed in court within the meaning of S.4(1) of the Act so as to attract that provision and become chargeable with fee. When it was represented it was represented as a Civil Revision Petition but with the same court fee as before which was higher than the fee required by the Act for a Civil Revision Petition. It was only as a Civil Revision Petition that the document was entertained, in other words, filed in court, and that being so I think it can be said that the higher fee was paid by mistake or inadvertence within the meaning of S.70 of the Act. This application for the refund of the fee paid in excess is therefore allowed.;

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