- (1.) THIS is an application by Shrilal for refund of court fee under sec. 13 of the Court Fees Act.
(2.) THE facts leading to this application may be briefly narrated. Shrilal was a defen-dand in a suit filed against him by Gajanand and another. THE suit was decreed by the trial court. Shrilal came in appeal to this Court and his main argument was that he had not been allowed sufficient opportunity to cross-examine the witnesses for the plaintiffs, and the court should, therefore, remand the suit for further hearings. THE argument prevailed in this Court, and the decree of the trial court was set aside, and the suit was remanded with certain directions as to how the, trial court should proceed. THEreafter, the present application for refund has been made. THE contention of the applicant is that the remand order comes under O. XLI, r. 23, and he is, therefore, entiled to refund of court fee. In the alternative it is prayed than even if the order of remand comes under sec. 151 of the Code of Civil Procedure, this Court has the discretion to order refund of court fee, if it thinks fit in the circumstances of the case to do so. So far as the first contention is concerned, we are of opinion that there is no force in it. Sec. 13 reads as follows: - "if an appeal or, plant, which has been reject by the, lower Court on any of the ground mentioned in the Code of Civil Procedure, is ordered to be received or if a suit is remanded in appeal, on any of the grounds mentioned in sec. 351 (now O. XLI, r. 23) of the same Code for a second decision by the lower Court, the Appellant Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector full amount of feed paid on the memorandum of appeal. " There is proviso to sec. 13 with which, we are not concerned. It is clear that an appellant is entitled to get back the court fee provided the remand is under O. XLI, r, 23. If the remand is not under that provision, sec. 13 cannot help him. O. XLI, r. 23 provides that where the court, from whose decree the appeal as preferred, has disposed of the suit upon a preliminary point, and the decree is reversed in appeal the appellate court may, if it thinks fit, by order, remand the case, and may further direct what issue or issues shall be tried in the case so remanded. It is only when the trial court has disposed of the suit upon a preliminary point that the appellant is entitled to refund of the court fee in appeal. In the present case, however, the trial court did not dispose of the suit on a preliminary point. It decided all the issues and gave a decree to the plaintiff. This Court; on appeal thought it fit in the interest of justice to give one more chance to the defendant and setting aside the decree of the trial court remanded the suit. This remand could only be under sec. 151 of the Code of Civil Procedure. Therefore, the applicant is not entitled to refund of the court fee under sec. i 3 of the Court Fees Act as the remand was not under O. XLI, r. 23. The next contention on behalf of the applicant is that even if sec. 13 does not apply in terms, this Court has the power to order refund of court fee in a suitable case under sec. 151, and, that this is a case of that nature. Various High Courts are not agreed whether there is this power in the High Court under sec. 151 C. P. C. Court fee is a tax which is levied under the various provisions of the Court Fees Act. That Act also makes provision for refund of court fees under sec. 13, 14 and 15. There is also a provision under sec. 18 which gives power to the court to remit the court fee in particular cases provided in that section. Lastly, there is sec. 19 which exempts certain documents from being charged with court fee. It seems to us that where court fee has been properly levied on a memorandum of appeal under the Court Fees Act, there can be no power in the court to refund the court fee, and deprive the State of the revenue, unless there is a provision in the Court Fees Act itself authorising the court to do so. When the Court Fees Act has made provision for refund in certain cases only, it seems to us that the intention was that no refund of this tax would be made in other cases, and it is wrong to use sec. 151 of the Code of Civil Procedure for purposes of refund of court fees which have been properly levied. Learned counsel drew our attention to certain cases in which the High Courts have unanimously held that where excessive court fee has been wrongly charged or paid by mistake, the court is entitled to order the refund of the portion in excess. Reference in this connection may be made to Munna Lal vs. Ram Chandra (l), Abdul Majid Mridha vs. Amina Khatun (2), Vishnuprasad Narayan Das Modi vs. Narayandas Mohanlal Modi (3 ). The High Courts have held that a court has this power under sec. 151 Civil Procedure Code. In those cases, however, it could not be said that the excessive court fee was properly due. Therefore, the High Courts have had to use their inherent power under sec. 151 to refund excess court fees wrongly levied or paid in by mistake, inadvertence or oversight, But it doss not, in our opinion, follow from these cases that sec. 151 can be used for refund of court fee which has been properly levied simply because the court makes a remand under sec. 151. In such cases we think that there can be no refund unless there is a specific provision under the Court Fees Act. We shall now turn to examine certain cases which have been cited at the bar, In Mohammad Sadiq Ali Khan vs. Ali Abbas (4) it was held that a court has jurisdiction to order a refund of court fees in cases which do not fall within any of the sec. 13, 14 or 15 of the Court Fees Act. There is no discussion in this case. Only a number of authorities were cited and relying on them the learned Judges ordered refund. The facts of the case were that on certain allegations made in court, and because the appeal had been withdrawn, and as the learned Judges were satisfied that it was wholly unnecessary, they ordered a refund of the court fee. With all respect, it seems to us doubtful whether in that case it could be said that there was any abuse of the process of the court, or that it was necessary in the ends of justice to pass an order of refund. In Syed Mohammadi Husain vs. Mt. Chandro 5), an appeal was dismissed for want of prosecution. There was a second appeal, and the High Court held that the order dismissing the appeal for want of prosecution was wrong and remanded the case for rehearing of the appeal. At the end of the judgment, the learned Judges ordered that the court fee paid in the High Court shall be refunded. There is no discussion as to why this order was made, and this cases can hardly be an authority for the view that refund can be ordered in cases where court fee has been properly levied; even though they are not covered by sec. 13, 14 and 15 of the Court Fees Act. In Firm Hari Ram & Sons vs. H. O. Hay (6) the learned Judge held that there was inherent jurisdiction in court to order refund of court fee, and ordered refund, holding that there had not been a real trial so far as the main issues were involved in the case, and the defendants were therefore entitled to a refund. Reliance was placed on the Oudh case (4) cited above, and the learned Judge has given no reason of his own for ordering refund. In Withoba vs. Waman (7), it was pointed out that a court was not justified in ordering refund of court fees except where the decision of the court of first instance had been on a preliminary point only. In Ramballabh Jasraj Marwadi vs. Dharamsi Jetha & Co. (8), it was held that as the remand was under sec. 151, the issuing of a refund certificate to the appellant was wrong, and that order was cancelled. In neither of these two cases, however, there was any reason given for the view taken. On a careful consideration, therefore, of the authorities we feel that where the court fee has been properly levied, there is no case for use of sec. 151 of the Civil Procedure Code for purposes of ordering refund for it can hardly be said that there has been an abuse of the process of the court in levying the court fee provided by law. Nor can it be said that it is in the interest of justice that a party, who has obtained remand under sec. 151 C. P. C, should get back the court fee paid on the memorandum of appeal. The court, by granting a remand under sec. 151 C. P. C. is already using its inherent powers in favour of the appellant and giving him a relief to which he is not ordinarily entitled, There seems to be no justification in such a case to give further redress under sec. 151 to the party and order refund of the court fee which has been properly levied under a taxation Act. It seems to us that a party, who has already got the benefit of his appeal by way of an order of remand in his favour under sec. 151 is not entitled to ask the court that interest of justice further require that he should get back the court fee also. We are, therefore of opinion that in a case where the court fee is properly levied and there is a remand under sec. 151, there can be no refund of the court fee so levied under sec. 151 C. PC. Finally we are of opinion that even if such power was there, it would only be discretionary in the court to grant refund or not depending upon the facts of each case. The party in such a case is not entitled as of right simply because there has been a remand under sec. 151 to claim refund as would be the case if sec. 13 of the Court Fees Act applied in terms. Looking to the circumstances, therefore, in this case, we are of the view that even of we had the power, we should not exercise it in favour of the present applicant. The reason why the case was remanded by this Court was that the trial court had not given sufficient time to the defendant to enable him to arrange for cross-examination of witnesses in Culcutta. But the reasons, which the defendant's counsel put forward in the trial court for his inability to proceed to Culcutta, were all personal, and it was not said there that the time allowed was too short for the defendant, who lived outside, to arrange for proper cross-examination of the witness. If that point had been arised, the court might have allowed adjournment, and then the appeal would have been unnecessary. It was only in this Court that it was urged that the time was too short to allow the defendant, who lived outside, to make arrangements for cross-examination of the witnesses in Caluctta. In this veew of the matter also we are of opinion that no refund should be allowed. The application for refund is hereby dismissed. We order parties to bear their own costs of this application. . ;