TRADEWELL (PAKISTAN) CORPORATION Versus STANDARD BANK LTD.

FAKHRUDDIN G. EBRAHIM, J. ‑By this application under section 13 of the Court Fees Act read with section 151, C. P. C. the appellant, whose appeal was withdrawn as the parties had resolved their differences outside the Court before the appeal was put up for Kutcha Peshi, seeks a certificate for the refund of the court‑fees paid by the appellant on the memorandum of appeal.

2. The learned counsel at the outset conceded that he cannot seek the refund under section 13 of the Court Fees Act and based his entire argument on the inherent powers of this Court to make the order sought, in the interest of justice.

3. In addition to Mr. Ismail Padhiar, the learned counsel for the appellant, we had the benefit of hearing Advocate‑General of Sind and Mr. Khalid M. Ishaque, the latter as amicus curiae. The learned counsel cited a large number of decisions from pre and post‑Partition India where Courts have been pleased to grant refund of court‑fees in absence of the circumstances provided for in sections 13, 14 and 15 of the Court Fees Act, in the exercise of their inherent jurisdiction.

4. The first case to which our attention was invited was Swami Dayal and others v. Muhammad Sher Khan (A I R 1925 Oudh 39). In this case two appeals were filed one against preliminary decree and another appeal from the final decree and the mortgagee appellant in the latter appeal applied for the refund of the court‑fees paid on his petition of appeal, which was granted on the ground that where an appeal is pending from the preliminary decree it was not necessary for the mortgagee to file another appeal from the final decree as the result of the appeal in the preliminary decree would have governed the final decree as well. The principle on which the Court exercised its inherent jurisdiction was that a litigant should not be burdened with court‑fees for a litigation which was unnecessary.

5. A I R 1925 Oudh 39 was followed in Muhammad Sadiq Ali Khan v. Ali Abbas and others (A I R 1933 Oudh 170), where refund was allowed of court‑fees paid on a memorandum of appeal which had been withdrawn as wholly unnecessary and except for the admission of the appeal by the Court no proceedings had taken place in respect thereof. .

6. In the case reported in C. T. A. M. Chettyar Firm v. Ko Yin Gyi and another (A I R 1929 Rang. 158) refund was sought of the court‑fees paid on a review application. In this case an application was made under sections 151 and 152 of the C. P. C. for amendment of the decree by certain non‑contesting defendants who were made liable for the decretal amount by an accidental mistake for no relief had been sought against them. Out of abundant caution an applica tion for review was also made by these defendants. The former application was allowed and' the latter, therefore, became infructuous, with the result that refund of stamp duty paid on the review application was sought for which purpose reliance was placed on section 15 of the Court Fees Act. The learned Judges observed that section 15 of the Court Fees Act was not appli cable but proceeded to grant the application as necessary in the ends of justice. The Court further observed that the two alternate applications for .the same. relief, namely, one for amendment of the decree and another for review were justified as it was difficult on the complicated proceedings to state which was the proper remedy and that the error was one of Court' in not specifying that it was only the contesting defendants who were liable under the decree. The Court in this case exercised its inherent jurisdiction in the interest of justice and though some reference is made to an error by the Court it cannot be said that the parties had been compelled to pay court‑fee by the Court. The Court proceeded on the basis that the review application was really unnecessary.

7. In Rattan Sen Sechhar v. Smt. Krishan Kaur and another (A I R 1933 Lah. 134), the High Court refused to interfere with an order made by a lower appellate Court remanding the two suits to the trial Court, not under Order XLI, rule 23, C. P. C. but under its inherent powers and allowing the appellant refund of the court‑fees paid on the memo. of appeal. No reasons have been given in this judgment though it is stated in section 13 of the Court Fees Act was not applicable.

8. In J. C. Galstaun v. Janaki Nath Roy and others (A I R 1934 Cal. 615), an order for refund of court‑fees paid on a memo. of appeal was made under its inherent powers under section 151, C. P. C. In this case an application for return of the Memorandum of Appeal (which had not been registered on the ground that it was filed out of time), with a certificate authorising the petitioner to receive back from the Collector the amount of the court‑fees paid on the Memorandum was granted though the case did not come within the purview of section 13 of the Court Fees Act as this section was considered not ex haustive and the Court was of the opinion that delay in filing the memo. of appeal was not due to negligence on the part of the petitioner himself but on account of gross negligence on the part of his legal adviser.

9. The next case is Re: Chidambaram Chettiar (A I R 1934 Mad. 566) in which an application was mad for refund of court‑fees paid on the memorandum of appeal which had been filed out of abundant caution only and the later withdrawn. The refund was not allowed. The inherent jurisdiction of the Court was,, invoked and for this purpose reliance was placed on A I R 1929 Rang. 158, A I R 1933 Oudh 170 and A I R 1934 Cal. 615. The Court dismissed the application holding that an order for refund can be made only under three circumstances (1) where Court Fees Act applies, (2) where there is an excess payment by mistake or (3) where on account of the mistake of a Court the party has been compelled to pay the court‑fees either wholly or in part; and beyond these three circumstances the Court had no authority to direct a refund.

10. In Firm Hari Ram & Sons and another v. H. O. Hay (A I R 1939 Lah. 257), court‑fees paid by the appellant in the lower appellate Court on the memo. of appeal was allowed to be refunded on the ground that there had been no real trial of the main issue involved in the case in both the Courts below.

11. In re: Vedaranyaswami Devasthanam (A I R 1942 Mad. 464), it was observed that though there was no specific provision in the Court Fees Act empowering the Court to order refund of an over‑valued plaint or memorandum of appeal such an order can be made by the Court ex debito justitiae.

12. In Province of Madras v. Kalavakuru Audemma and others (A I R 1949 Mad. 895) refund was sought of court‑fees affixed on a sale certificate which was subsequently set aside, after the expiry of the period of limitation provided for making such an application and rejected by the Court on the ground that the Court can order refund of court‑fees only on three circumstances laid down in A I R 1934 Mad. 566.

13. In Karfule Ltd. v. Arical Daniel Varghese (A I R 1953 Bom. 73), an application was made for refund of court‑fees paid on the memorandum of appeal in the cir cumstances identical as in the present appeal but not allowed on the ground that the power of the Court to refund court‑fees arises only under sections 13, 14 and 15 of the Court Fees Act and the Court has no inherent power under section 151, C. P. C. to circumvent the provisions of law.

14. Again in Discount Bank of India v. A. N. Mishra (A I R 1955 Pb. 165) the Court disallowed the refund of court‑fees paid on an appeal to the appellant who had withdrawn his appeal on his own free will. The Court followed the Madras view and held that the power of the High Court to order a refund of the court‑fee is limited to only three cases, namely, where the statute itself authorises its refund or where an over‑payment has been made as a result of a mistake and where over‑payment has been made as the result of a mistaken demand by the Court itself.

15. The same view was taken by the Full Bench of the Allahabad High Court in Munna Lal and another v. Abir Chand (A I R 1958 All. 766). It was emphasised that by ordering refund under the inherent power the Court cannot indirectly exempt a person from the obligation imposed upon him by the statute and thereby nullifying the provisions of section 6 of the Court Fees Act.

16. It will appear from the survey of the law on the subject that the more consistent view which has found favour is that the . levy of court‑fees if sanctioned by a statute cannot be ordered to be refunded unless the law so expressly provides and that the Court has no inherent power to refund the court‑fees paid as prescribed by law. The Courts have invoked their in herent jurisdiction only in such cases where the amount paid as court‑fee was A in fact not payable in law and not otherwise, as for example when the Court came to the conclusion that the court‑fee has been paid by a litigant under his own mistake or when he was compelled to pay on account of mistake of Court, for the Government should not profit by such mistakes. The Court has, however, no jurisdiction to exonerate the litigant from an obligation to pay court‑fees which is imposed by statute. In our country if a litigant fail to pay the prescribed court‑fee he is not entitled to be heard, for such payment is a condition precedent for seeking the aid of the Court. The payment of court‑fees does not depend on the result of the proceedings whether or not such proceedings are heard on merits. Any attempt, therefore, on the part of the Courts to allow refund in circumstances other than specified above would in fact amount to allowing the litigant to circumvent the law and relieve him of his liability to pay the court‑fees. Our duty, however, is to enforce the law and to ensure that it is followed.

17. In the case before us it is not denied that court‑fees of which refund is sought was payable by the appellant. The fact, therefore, that the appeal was withdrawn later or that the Court had no occasion to hear it on merits is of little consequence. The application is, therefore dismissed.

18. Before parting I would, however, like to say that it may perhaps be advisable for the Government to make requisite amendment in law so as to permit refund of court‑fees paid, either in whole or in part, when a proceed ings is withdrawn before it proceeds to trial so that the litigants are encourag ed not to indulge in unnecessary litigation or to bring it to an end as soon as possible.

TUFAIL ALI A. REHMAN, C. J.‑I agree.

K. B. A. Application dismissed.