V.P.TYAGI, C.J. - (1.) THIS revision application has been filed by the plaintiff petitioner for the refund of the court fees on the plaint which was returned to him under the following circumstances.
(2.) A suit for partition was filed by the plaintiff. But during the pendency of the suit his father made a will of his share in his favour and his father died after executing the saide will The share that was to come to the plaintiff on account of the demise of his father was swelled and, therefore, the court of Additional Civil Judge, Udaipur had no jurisdiction to entertain that suit. The plaintiff was, therefore, compelled to bring out a fresh suit in the court of the District Judge. But at the time of the filing of the second suit court fee stamps filed in the first suit could not be returned to the plaintiff because of the stay order that was passed by this Court in a revision petition filed by the opposite party. After the revision of the opposite party was dismissed, the plaint was returned to the plaintiff by the Additional Civil Judge, Udaipur but the court fees could not be used by the plaintiff in the second suit which was already filed under the circumstances of this case. The plaintiff petitioner applied to the original court under Order 7 Rule 10 read with Section 151 C. P.C. for the refund of the court fees as he could not use the stamp affixed on the first plaint. The learned Judge dismissed the plaintiff's application on the ground that it does not fall within any of the provisions of the Court Fees Act relating to the refund of the court fees. The learned Judge was also of the opinion that the discretion under Section 151 C.P.C. under the facts of this case could not be exercised in favour of the petitioner plaintiff, to is retarget this order that the present revision application has been preferred b/ the plaintiff petitioner.
(3.) MR . Jain representing Jagdish Chandra defendant respondent urged that the discretion having been exercised by the trial court under Section 151 cannot be challenged in revision application to this Court He also argued tint the refund of the court fees in the present circumstances would create a bad precedent and therefore, the revision application must be dismissed. He has been supported be the learned Government Advocate also.;