J.V. Gupta, J. - (1.) THIS is an application for refund of the Court -fee which was affixed on the cross-objections by the Applicants. The ground taken up therein is that the cross-objections were filed by the Applicants being the heirs and legal representatives of the deceased Respondent, but since the appeal, that is, Regular First Appeal No. 1605 of 1979, filed on behalf of the State of Haryana, was dismissed as incompetent, having been filed against dead persons, the cross -objections could not be entertained.
(2.) NOTICE of this application was given to the State of Haryana which contested the same. According to the learned Counsel for the Applicants, they are entitled to the refund of the Court fee paid on the cross-objections because the same was paid by them under a bona fide mistaken impression and that this Court has the inherent powers under Section 151, Code of Civil Procedure, to order the refund of the Court fee paid on such cross -objections. In support of this contention, the learned Counsel placed reliance on Aya Singh -Tirlok Singh v. Munshi Ram -Atma Ram : AIR 1968 Delhi 249. On the other hand, the learned Counsel appearing on behalf of the State, contended that there was no such inherent power vested in the Court for the refund of the Court -fee and in support of his contention, relied on Jawahar Singh -Sobha Singh v. Union of India and Ors. : AIR 1958 P&H 38.
(3.) AFTER hearing the learned Counsel for the parties, I am of the opinion that the Applicants are entitled to the refund of the Court -fee paid on their cross -objections. The decision of the Full Bench of this Court in Jawahar Singh's case (supra), is not applicable to the facts of the present case. Moreover, it has been held therein that the power of the Court to remit the Court-fee is confined only to fees which have been illegally or erroneously assessed or collected, and does not extend to fees which have been paid or collected in accordance with the provisions of the Court -fees Act. In the present case, the Applicants filed the cross -objections, but later on, it was revealed that the appeal itself was not' competent having been filed against dead persons and was dismissed as such. So, it is a clear case where the Court -fee on the cross -objections was paid under a bona fide mistaken impression. In this respect, reference may be made to Aya Singh's case (supra), wherein it has, been held - - Unless the liability to pay Court -fees is clearly supportable on the plain statutory language a suitor is not obliged to pay any Court -fee. It is on this basis perhaps that inherent power of the Court is recognised to direct refund of excess Court -fee paid either under compulsion or under a bona fide but erroneous impression, if the cause of justice so demands. It is true that the Court -fees Act, has made certain provisions for refund and it may be argued that the legislative intent should be held to exclude refund in other cases, but numerous authorities have upheld the inherent power of the Court to direct refund ex debito justitiae. It is not, however every excess payment of Court -fee which must be refunded as a matter of course. Apart from the mandatory provisions, the Court, in order to exercise its inherent power, has to consider the facts and circumstances of each case and come to a judicial determination whether or not the cause of justice requires refund. Where a counsel erroneously thought that a remand order was equivalent to a decree and on this impression paid Court -fee very much in excess of the amount prescribed treating the appeal to be from a decree, the impression was due to a bona fide mistake, and refund of the excess of the Court -fee paid was ordered. However, his case was not to be considered as a precedent for refund in all cases of excess payment merely because of the ignorance of the counsel, for it was the duty of the counsel accepting briefs in High Court to be fully informed of the legal position and each case will have to be considered on its own merits. In the above said case, Jawahar Singh case (supra) has also been considered and distinguished. While considering the said Full Bench case it has been(observed: Obviously, the Bench was not concerned with the excess Court -fee paid under an erroneous impression. It was assumed there that the Division Bench decision of the Punjab High Court in Sohan Singh's case, : A.I.R. 1956 P&H 215 had taken the view that the Court had full power to grant refund of Court -fees even when the fees had been collected in accordance with the provisions of law and the Full Bench apparently negatived such a view. In this view of the matter, the application for the refund of the Court-fee is allowed.;