DWARKA SINGH Vs. NAGDEO SINGH
LAWS(PAT)-1960-4-11
HIGH COURT OF PATNA
Decided on April 27,1960

DWARKA SINGH Appellant
VERSUS
NAGDEO SINGH Respondents


Referred Judgements :-

CHAUDRA HARI SINGH V. PIPAN PROSAD SINGH [REFERRED TO]
BHUNESHWARI PRASAD SINGH V. KISHEN DAYAL BHAGAT [REFERRED TO]
TEJ NARAYAN SINGH V. SECY. OF STATE [REFERRED TO]
NARAYANA REDDIAR [REFERRED TO]
THAMAYYA NAIDU V. VENKATARAMANAMMA [REFERRED TO]
MAYASANKAR VYASH VALLAVJI VS. GOURI SANKAR MATILAL [REFERRED TO]
GUDIMETLA CHINA VARAHALU VS. GUDIMETLA REDDAYYA [REFERRED TO]
MAHANTH RAM DAS CHELA VS. GANGA DAS [REFERRED TO]
RAMAUTAR TIWARI VS. JAGDISH SINGH [REFERRED TO]
KASI MANGALATH ILLATH VISHNU NAMBUDIRI VS. RAO SAHIB PATTATH RAMUNNI MARAR [REFERRED TO]


JUDGEMENT

S.C.Misra, J. - (1.)This reference to a full Bench by two of us constituting a Division Bench arises out of an application tor refund of court fee paid on an application for review of an order passed by this Court being Civil Review No. 4 of 1957. The petitioners claimed a certificate from this Court for refund of the amount of Rs. 500/- as Civil Review No. 4 of 1957 was allowed by this Court. The application was filed under Section 15 of the Court Fees Act and Section 151 of the Code of Civil Procedure. The order of dismissal of First Appeal No. 240 of 1955 giving rise to Civil Review No. 4 of 1957 was passed on the ground of non-payment of deficit court-fee on the memorandum of appeal to this Court within the time allowed by the Court. The petitioners stated in the petition that although the son of the petitioner, Dwarka Singh, had arrived at Patna on the 9th April, 1956, with the full amount of court-fee, he was informed by his advocate that the amount of court-fee being Rs. 974/- and odd, the requisite court-fee stamp had to be obtained from the Treasury; and the working of the Treasury being in the morning hours the stamp required could not be available on that date. It is unnecessary to detail the other facts and it is enough to mention that the explanation offered on behalf of the petitioners in the review application for failure to comply with the: peremptory order of the bench regarding payment of court-fee was accepted, and, as mentioned above, Civil Review No. 4 of 1957 was allowed and First Appeal No. 240 of 1955 was accordingly restored to file.
(2.)The application of the petitioners for granting the certificate of refund was taken up for consideration by a Division Bench and notice was issued to the Government Pleader to appear in the case. On a consideration of the contentions advanced by the learned counsel for the petitioners as also on behalf of the State by the learned Government Pleader, the Division Bench concluded that the certificate of refund prayed for could not be granted. In view, however, of the order passed by another Division Bench, in Civil Review No. 64 of 1948, which was an ex parte order and which was specifically mentioned to be as such by the learned Judges holding a different view, it was considered necessary to have this point decided by a larger Bench, and accordingly the present Bench has been constituted to decide the question raised on behalf of the petitioners.
(3.)It may be stated at the outset that after having heard the learned counsel for the parties I have come to the conclusion that the opinion expressed by the Division Bench must be accepted as correct. Learned counsel for the petitioners has, however cited a few decisions which were not cited by him on the previous occasion and it is accordingly necessary to consider the point with reference to those cases. Section 15 of the Court-fees Act on which reliance was placed in the first instance on behalf of the petitioners, provides as follows :
"15. Where an application for a review of judgment is admitted, and where, on the re-hearing, the court reverses or modifies its former decision on the ground of mistake in law or fact, the applicant shall be entitled to a certificate from the Court authorising him to receive back from the Collector so much of the fee paid on the application as exceeds the fee payable on any other application to such Court under the Second Schedule to this Act No. 1, Clause (b) Of Clause (d), But nothing in the former part of this section shall entitle the applicant to such certificate where the reversal or modification is due, wholly or in part, to fresh evidence which might have been produced at the original hearing."
Prima facie, this section, as it stands, bars out the present case from the purview of the above section. Learned counsel has not urged, and in fact he could not urge, that the petitioners' review application was allowed on the ground of mistake in law or fact On the part of the Court. Of the three grounds mentioned for review under Order 47, Rule 1, Code of Civil Procedure, the first two viz. discovery of new matter and error apparent on the face of the record, cannot be applicable to the facts of the present case. The matter, if at all, can only be covered by the third Clause under Order 47, Rule 1, Code of Civil Procedure, which relates to the existence of sufficiency of cause Section 15 of the Court-fees Act, however, evidently, does not take into account "sufficient cause" as one of the grounds on which certificate of refund can be granted. It is true, no doubt, that Order 47, Rule 1, finds place in the Code of Civil Procedure enacted in 1908 whereas the Court-fees Act was enacted in 1870 when the Code of Civil Procedure of 1859 dealt with the question of review under Section 376 which provided for a review on the ground of
"discovery of new matter or evidence which was not within the applicant's knowledge, or could not be adduced by him at the time when such decree was passed, or for any other good or sufficient reason."
The matter was clarified further under Section 623 of the Code of Civil Procedure of 1877 which provided that an application for review could be entertained on the ground of
"discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge, or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason".
It is thus clear that the wording of Order 47, Rule 1, in the Code of Civil Procedure of 1908, is the same as that of Section 623 of the Code of 1877 or Section 623 of the Code of 1882. If, therefore, Section 15 of the Court-fees Act was incorporated therein, keeping in view the provisions of Section 376 of the Code of Civil Procedure of 1859, the provision with regard to the mistake of law or fact would come under the second part of the section providing for review on the ground of existence of sufficient cause inasmuch as it would not come under the first part of the Clause dealing with the discovery of new matter or evidence. But since 1877 onwards "mistake or error apparent on the face of record", may be a mistake of fact or law of a character which might justify a review, although, as it is well-settled^ normally, it is not a ground for review. But there can be no doubt that if at all there is any parity between the provisions of Section 15 of the Court-fees Act and the provision for review contained in the Code of Civil-Procedure, it must come under the Clause dealing with mistake or error apparent on the face of re-cord. It must be so in the very nature of an application for review because it can be granted only in terms of Order 47, Rule 1, Code of Civil procedure, andt therefore, the provision of that Code bearing on review must be taken into consideration in interpreting Section 15 of the Court-fees Act inasmuch as it provides for grant o a certificate of refund with reference to some limited grounds alone on which review application is allowed. The second paragraph of Section 15 lays down fur-ther that where the reversal or modification is based on fresh evidence which might have been produced at the original hearing, certificate of refund cannot be granted. The obvious intention of the Legisla-lature seems to be to confine the grant of a certifi-cate of refund only to the limited grounds provided for in paragraph one of Section 15. The underlying policy of the Legislature in enacting Section 15 is that if the review is necessitated on account of mistake in law or fact occurring in the judgment, the responsibility in the long run must be that of the Court and if the review is allowed, therefore, on this ground, it must be taken that the party is not to blame and, in that view of the matter, it would be wholly unjust for the State to claim any court-fee on such a review application. It is originally payable because there is no cer-tainty that the allegations in the application are correct, but once the allegations are accepted and the review application is allowed on the ground of mistake in law and fact, there can be no legal justification for the retention by the Government of the amount paid as court-fee by the applicant seeking a review of the judgment passed by the Court. It also postulates, therefore, that the mistake of law or fact must be anterior to the date when the judgment or order sought to be reviewed is passed, because if that be not so, the question of a mistake in the judgment does not arise. In the present context however, where the reference is to the circumstances occurring after the passing of the order by the Bench which was not complied with and led to the dismissal of the appeal, they are clearly outside the purview of mistake of law or fact as contemplated within the meaning of Section 15 of the Court-fees Act.


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