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Opinion Summary — Desai, J.

Factual and Procedural Background

The appellant filed a second appeal in the High Court and paid ad valorem court fee amounting to Rs. 142/8/-, which was the proper fee for a memorandum of appeal. It was subsequently found that no second appeal lay; however, the appellant requested that the filing be treated as an application in revision under Section 115, C.P.C., and that request was granted. Because less court fee was payable on a revision application than had been paid for a second appeal, the appellant applied, purportedly under Section 151, C.P.C., in "Civil Revision no. 1140 of 1953", seeking refund of the excess court fee by way of a certificate. The learned single Judge (Sri Narain Sahai) dismissed that application, refusing to issue a certificate for refund. The appellant filed a special appeal under Chapter VIII, Rule 5 of the Rules of Court, challenging the refusal to grant the certificate. This opinion is the High Court's disposition of that special appeal.

Legal Issues Presented

  1. Whether the order refusing to issue a certificate for refund of court-fee amounted to a "judgment" for the purpose of appeal under the Rules.
  2. Whether that order was an order made in the exercise of revisional jurisdiction (and thus whether a special appeal under Chapter VIII, Rule 5 lay).
  3. Whether a court has inherent power (e.g., under Section 151, C.P.C., or otherwise) to grant a certificate directing refund of court-fee where refund is not specifically provided for by the Court Fees Act (notably Sections 13, 14, 15) and in light of Section 30A of the Court Fees Act.
  4. If a certificate were competent, whether the facts of this case justified granting a certificate and refund of the excess court-fee paid by the appellant.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
R. Wall v. J.E. Howard, I.L.R. 17 Alld. 438 Where a court is invested with jurisdiction to do or refuse to do a certain act, an order passed in the exercise of its discretion to refuse an indulgence is not a "judgment" within the meaning of the relevant provision. Used to support the conclusion that the learned Judge's refusal to grant a certificate (an exercise of discretion) did not amount to a judgment and was interlocutory in character.
T.B. Tuljaram, Row v. M.K.R.V. Alagoppa Chettiar, 1912 35 Mad. 1 Test for whether an adjudication is a "judgment" is the effect of the adjudication on the suit or proceeding — if it puts an end to the proceeding (or its non-compliance would), it is a judgment. Applied (via Sadiq Ali) to determine that the order refusing the certificate did not put an end to the revision proceedings and therefore was not a judgment.
Sadiq Ali v. Anwar Ali, 1922 A.L.J. 801 Accepted the Tuljaram test: focus on the effect of the adjudication rather than its form. Relied on for the proposition that the order under appeal did not amount to a judgment because it did not terminate the revision proceeding.
Sital Din v. Annant Ram, A.I.R. 1933 All. 262 A final decision effectually disposing of an appeal amounts to a judgment in the appeal. Distinguished from the present case: here the impugned order did not finally dispose of (or terminate) the revision proceeding.
Asrumati Debi v. Kumar Rupendra Deb, A.I.R. 1953 S.C. 198 An order of transfer was held not to be a "judgment" where it did not amount to a final pronouncement terminating the proceeding. Quoted (B.K. Mukherjea, J.) to emphasize that a "judgment" must be a final pronouncement putting an end to the proceeding; applied to conclude the present order was not a judgment.
Nanak Chand v. State of Uttar Pradesh, A.I.R. 1955 All. 165 An order dismissing a writ petition on the ground of availability of an alternative remedy was a judgment because it decided the petitioners' right and terminated proceedings on the writ. Used as a contrasting example where an order was a judgment because it terminated the proceeding; contrasted with the instant interlocutory order.
Tarachand v. State, A.I.R. 1955 Cal. 258 (Tarachand Ghanshyamdas v. State of West Bengal) A certificate issued by a court is meant to be mandatory (to require the Collector to pay) and not merely recommendatory; a court should refuse to grant a certificate unless it is mandatory under statute. Applied to support the view that courts should not grant certificates where statutory authority is lacking; reinforces that a certificate must be grounded in a statutory provision that obliges the Collector to pay.
Munna Lal v. Ram Chandra, A.I.R. 1930 All. 471 Held that a court, in exercise of its inherent jurisdiction, could grant a certificate directing refund of court fee paid in excess by inadvertence (historical authority). Recognized as contrary authority; the Court explained that when Munna Lal was decided Sec. 30A did not exist, and the earlier law cannot be applied unchanged after enactment of Sec. 30A.
Om Prakash Gupta (Plaintiff) v. The United Provinces (Defendant), A.I.R. 1951 All. 205 Questioned whether the court has inherent power to refund court fees; observed payment of court fee is a condition precedent to court taking cognizance and no question of refund arises in many circumstances. Quoted to support skepticism about inherent power to refund court fees and to support the view that refund is generally not available absent statutory provision.
Abodh Bala Ghose v. Radharani Dasi, 55 C.W.N. 417 Held that a court can direct refund of court fees in cases not covered by Sections 13–15 where excess was paid in compliance with a court order founded on a wrong view of law or through inadvertence; but noted limitations on invoking the principle. Noted by the Court as an authority recognizing limited inherent power, but the Court observed that Section 30A and statutory scheme affect applicability and stressed limitations (e.g., cannot be invoked by party who paid fees to obtain relief claimed).

Court's Reasoning and Analysis

The Court's reasoning proceeds in two main stages: (A) whether the impugned order was a "judgment" and appealable under the Rules; and (B) merits — whether a court may grant a certificate for refund of court-fee in the circumstances of this case.

(A) Character of the Order — Judgment or Interlocutory?

  • The Court accepted established tests from precedent (R. Wall; Tuljaram; Sadiq Ali) that the decisive criterion for calling an adjudication a "judgment" is its effect on the proceeding: if it puts an end to the suit/proceeding (or its non-compliance would), it is a judgment.
  • The order refusing to issue a certificate was an exercise of judicial discretion refusing an indulgence the appellant could not claim as of right; it did not decide any substantive question of the parties' rights in the revision matter and did not terminate or dispose of the revision proceeding.
  • Therefore, the order was interlocutory, complete in itself but not a "judgment" within the meaning relevant to Rule 5; Beg, J. concurred that the order was not a judgment and thus not appealable on that ground.
  • Additionally, the Court observed that the impugned order was made in the exercise of revisional jurisdiction (it arose in the course of the revision application), and even if it were deemed a judgment, no special appeal would lie because the order was not one made outside revisional jurisdiction.

(B) Merits — Power to Grant Certificate for Refund of Court-Fee

  • The Court examined the statutory scheme in the Court Fees Act: Sections 13, 14 and 15 provide for refund of court fee in certain specified circumstances, and these provisions effect refunds by authorizing a court to grant a certificate enabling the holder to obtain money from the Collector.
  • Section 30A was highlighted: it provides that where refund is permitted on the strength of a certificate granted by a court, the Collector may, on application and after satisfying himself as to the genuineness of the certificate, give the equivalent amount in money. The Court read Sec. 30A as confining the Collector's duty or jurisdiction to cases where refund is permitted by statute on the strength of a court certificate.
  • Section 151, C.P.C., (inherent power) does not mention court-fee or refunds; the Court reasoned that a certificate granted under Sec. 151 would not be a statutory basis obliging the Collector to pay money, because the Collector's jurisdiction to pay exists only where refund is statutorily permitted on a court certificate.
  • The Court concluded that a certificate granted under inherent or Sec. 151 powers, in the absence of a statutory provision permitting refund based on such a certificate, would be futile: the Collector would not be bound to honor it and the court should not grant a certificate that the Collector has no duty to obey.
  • The opinion acknowledged contrary authorities (e.g., Munna Lal) which had recognized inherent power to grant such certificates, but distinguished them on the ground that Section 30A did not exist when those cases were decided; the statutory change alters the legal position.
  • The Court also analysed the purpose and limits of inherent powers: they are to secure ends of justice or prevent abuse of process and must be exercised only where facts justify them. Here, there was no ground of injustice or abuse: the appellant voluntarily filed the second appeal and paid the appropriate fee; the appeal was argued and an objection to maintainability entertained; the fee had served its purpose in enabling the court to entertain and dispose of the appellant's filing to the extent required.
  • Even on discretionary grounds, the Court found no arbitrary or improper exercise of discretion by the learned Judge in refusing the certificate; no case was made out that would require the Court to interfere with that exercise.

Holding and Implications

Holding: The appeal is dismissed with costs.

Direct consequences for the parties: the appellant's application for a certificate directing refund of the excess court-fee was refused by the learned Judge and that refusal has been upheld; the appellant is not entitled to a refund or certificate in respect of the excess fee paid in the circumstances described.

Broader implications as articulated in the opinion:

  • The Court concluded that, in this State, a court does not have inherent power to grant a certificate for refund of court-fee where the refund is not permitted by the statutory provisions (Sections 13–15) and where Section 30A confines the Collector's obligation to pay money only when refund is permitted on the strength of a court-granted certificate.
  • The opinion distinguishes earlier authorities that recognized inherent power to order refunds prior to enactment of Section 30A and emphasizes that inherent powers must be exercised sparingly and only where the facts "clamour" for them — to secure ends of justice or prevent abuse of process.

Beg, J. expressly agreed with the conclusion that the impugned order was not a judgment and therefore not appealable; he did not express a view on the other points.

This summary is restricted to and derived exclusively from the content of the provided opinion and does not add or infer facts beyond that text.

    Tej Bahadur v. Pearelal

    Desai, J.:— This is an appeal from an order of our brother Sri Narain Sahai refusing to issue a certificate to the appellant for the refund of court-fee.

    2. The appellant filed a second appeal in this court and paid ad valorem court fee amounting to Rs. 142/8/- on it; that was the proper amount of court fee payable on the memo of appeal. No second appeal lay and the appeal would have been dismissed but for the request of the appellant that it might be treated as an application in revision under Sec. 115, C.P.C, which request was granted. On an application for revision less court fee was payable than had been paid by the appellant consequently he made an application purporting to be “an application under Sec. 151, C.P.C, in Civil Revision no. 1140 of 1953” praying for refund of the excess amount of court fee. The application was dismissed by our learned brother who was not satisfied that any case had been made out for refund. This special appeal has been filed under chapter VIII, Rule 5 of Rules of Court. Under chapter VIII, Rule 5 an appeal lies from a judgment which is not an order made in the exercise of revisional jurisdiction of one Judge. The first question that arises is whether the order of our learned brother amounted to a judgment and the next question would be if it was not an order made in the exercise of revisional jurisdiction. There is no definition of ‘judgment’ in the Rules but the word has been interpreted in several decisions. In R. Wall v. J.E Howard I.L.R 17 Alld. 438. Burkitt, J., at page 442 observed as follows:—

    “Now the order under appeal here certainly is not a decree nor appealable as such. It is an order by which the learned judge in the exercise of his judicial discretion refused to grant to the appellants an indulgence which they could not claim as a matter of right. It did not decide any question at issue in the case nor the rights of any of the parties, nor did it lead up to or originate any order or decree. The order was complete in itself and did not require anything further to be done.” At page 445 he observed:—

    “I take it that the rule to be reduced from the above cases is that where a court is invested with jurisdiction to do or to refuse to do a certain act the order passed in the exercise of its discretion in that matter is not a judgment or order within the meaning of Sec. 19 of the Judicature Act.”

    3. According to these observations the order of our learned brother did not amount to a judgment. In the first place he, in the exercise of his discretion, refused to grant to the appellant a certificate. The appellant was not entitled to it as a matter of right and our learned brother did not decide any question of his right. The question whether he was entitled to a certificate did not arise in the revision application of which he was seized. By the order he did not decide any right of either party involved in the revision application. It was an interlocutory order and nothing more and certainly not a judgement. In Sadiq Ali v. Anwar Ali 1922 A.L.J 801. a Bench of this Court accepted the test laid down in T.B Tuljaram, Row v. M.K.R.V Alagoppa Chettiar 1912 35 Mad. 1. in the following words:—

    “The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause.”

    4. According to this test the order of our learned brother did not amount to a judgment. It did not put an end to the revision proceeding pending before our learned brother; it is still pending. In Sital Din v. Annant Ram A.I.R 1933 All. 262. a final decision effectually disposing of an appeal was held to amount to a judgment in the appeal, but the order under consideration before us is a different order. An appeal may lie under clause 10 of the Letters Patent from a High Court's order of remand, but it does not follow that an appeal would lie from its order refusing to issue a certificate for refund of court fee. An order of transfer of a suit under clause 13 of the letters Patent was held to be not a judgment within the meaning of clause 15 in Asrumati Debi v. Kumar Rupendra Deb A.I.R 1953, S.C 198. B.K Mukherjea, J. stated at page 200: “The judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned. It certainly involves the determination of some right or liability. If its effect is to terminate the suit or proceeding, the decision would be a ‘judgment’ but not otherwise.” The order under consideration also does not affect the merits of the controversy between the parties in the revision because it has not terminated or disposed of it on any ground. Lastly I refer to Nanak Chand v. State of Uttar Pradesh A.I.R 1955 All. 165. in which an order dismissing a writ petition on the ground of availability of an alternative remedy was held to be a judgment; but that was because it decided the right of the petitioners to restrain the other party from dispossessing them and terminated the proceedings on the writ petition leaving no action to be taken by the Court on it.

    5. The order was passed by our learned brother in the exercise of his revisional jurisdiction. It was admittedly passed on an application presented to him in the course of his exercise of revisional jurisdiction and not on an application made in some other matter. The application could not have been made to our learned brother except in the exercise of his revisional jurisdiction; had it been made as an independent application i.e, not in the revision case pending before him it would have been made to the application Judge. Even if the order of our learned brother amounted to a judgment, no special appeal would lie.

    6. Coming to the merits I find that the appeal is devoid of any force. The court fees act provided for refund of the court fee paid in certain circumstances, vide Secs. 13, 14 and 15. Actually these provisions provide for the granting of a certificate authorizing a party to receive back from the Collector the amount of court fee paid by him. A party pays court fee by purchasing court fee stamps of the appropriate amount and affixing them on the document that he intends to present before a court. In certain circumstances mentioned in Secs. 13, 14 and 15 he is entitled to a refund from the Collector on being granted a certificate to that effect by the court. It would be no use returning to him the surplus court fee stamps, because he cannot sell them back and recover the price and cannot use them for any purpose. Therefore, it is provided in Sec. 30A that “where refund is permitted on the strength of a certificate granted by a court, the Collector may, on the application of the holder of the same and after satisfying himself about the genuineness of the certificate give in lieu thereof the same amount or value in money.” The jurisdiction or the duty of a Collector to pay the money exists only where refund is permitted on the strength of a certificate granted by a court, i.e, where there exists a statutory provision allowing refund on the strength 1 of a certificate, A Collector has no jurisdiction or duty to pay money on a certificate granted by a court in a case in which refund is not permitted on the strength of a certificate. There must be a provision permitting refund and then only a Collector will honour the certificate issued by a court. The only provisions which permit refund on the strength of a certificate are those contained in Secs. 13, 14 and 15. If a court grants a certificate in the supposed exercise of its inherent powers, it is not a case of refund being permitted on the strength of a certificate. Sec. 151 of the Code of Civil Procedure does not permit refund on the strength of a certificate; it does not say anything about court fee or refund of court fee. If a court grants a certificate under Sec. 151, the Collector before whom it is produced is not bound by any law to honour it and to give money to the party producing it. If the Collector is not bound to honour a certificate issued by a court, the court should not grant it at all. If the Collector has no jurisdiction to honour the certificate, the granting of it is futile; if the matter is at the discretion of the Collector. There is no reason why the party should not approach him direct and why the court should recommend his case to the Collector. It has been pointed out in Tarachand v. State A.I.R 1955 Cal. 258. that a certificate issued by a court is meant to be mandatory and not recommendatory; in other words a court must refuse to grant a certificate unless it is mandatory. I am therefore, of the opinion that no certificate could be granted by our learned brother under Sec. 151, I.P.C

    7. There are some authorities to the contrary including authorities of our court. In Munna Lal v. Ram Chandra A.I.R 1930 All. 471. Mukerji and Bennet, JJ., held that a court has power in exercise of its inherent jurisdiction to grant a certificate directing refund of court fee paid in excess by inadvertence. The learned Judges based their decision upon authorities of other courts and thought that the granting of a certificate is necessary for the ends of justice. Sec. 30 A did not exist in the court Fees act when this case was decided and the law that was applicable before its enactment in 1938 cannot be applied now. In Om Prakash Gupta…(Plaintiff); v. The United Provinces…(Defendant). A.I.R 38 1951 All. 205. to which one of us was a party, a court's power to grant a certificate in the exercise of its inherent jurisdiction was seriously questioned. I would only quote from our brother Dayal's judgment; he stated at page 226:

    “I am not inclined to agree with the view that the Court has inherent power to refund court fees. … It is clear, therefore, that the payment of court fee is a condition precedent for the courts taking cognizance of a plaint or taking notice of any other document; and is not dependent on what action is taken in the case. In this view of the matter, no question for the refund of any court fee paid and utilised can arise in any circumstance.”

    8. In Tarachand Ghanshyamdas v. State of West Bengal Chakravartti, C.J with the concurrence of Lahri, J., said at page 261:

    “The Legislature seems to have applied its mind to the question whether the fee levied in the first instance should be retained in all cases and has specifically indicated the occasions on which the fee should be refunded. That being so, it cannot possibly be within the jurisdiction of a court of law to modify or add to the provisions of the taxing statutes and interfere indirectly with the revenues of the State by purporting to make what it considers to be equitable adjustments of the court fee in exercise of its inherent power. To do so would be to interfere with the revenues of the State in the face of the statutes.”

    9. The learned Chief Justice however later observed that refund can be ordered in the exercise of the inherent powers where there has been a payment or overpayment, not required or warranted by the relevant statute, but which is not covered by the specific provisions for refund contained in the court fees act. Sec. 30 A does not exist in the court Fees act as in force in Bengal; therefore the learned Chief Justice did not have to consider the effect of the provision that a Collector will pay money only where refund is permitted on the strength of a certificate granted by a court. In Abodh Bala Ghose v. Radharani Dasi 55 C.W.N, 417. it was held that a court has inherent power to direct refund of court fees in cases not covered by Secs. 13 to 15 of the Court Fees act, when it finds that the excess court fee was paid in compliance with an order of the court which proceeded; on a wrong view of the law or through inadvertence or mistake. But it was observed at page 420:

    “The above principle cannot, however, be invoked by a party who is required to pay court fees for getting the relief, claimed by him. His eventual success or failure to obtain the relief claimed by him is wholly immaterial in determining his right to get a refund of court-fees. Thus when a party filed an appeal which became; unnecessary, because of his success in some other proceeding, e.g, granting of a petition for amendment and then applied for refund of court fees, paid on the Memorandum of Appeal, the high Court of Madras refused to direct a refund.”

    10. In this case also the provisions of Sec. 30A could not and did not, come up for consideration. On consideration of the provisions of the court fees Act and the authorities I come to the conclusion that in this State at least a court has no inherent power to grant a certificate for refund of court-fee.

    11. Inherent powers are exercised by 3 court in order to secure the ends of justice or to prevent an abuse of process of court and for no other purpose. Neither is there any case of securing the ends of justice nor of preventing an abuse of process of court by allowing refund of excess court fee paid by a party and particularly when paid by him voluntarily. The matter of which our learned brother was seized was whether the plaintiff's suit should be decreed or not; in order to do justice in that case our learned brother was not at all concerned with the question of excess court fee paid by the appellant and was not required to grant a certificate for its refund. The merits of the revision application pending before him had absolutely nothing to do with the question of refund. The question of refund was an entirely new question. Nor was there any question of abuse of process of court, because the excess court fee had been paid by the appellant before he filed the revision application. Therefore, there was actually no question of exercising inherent powers. Inherent powers are not to be exercised arbitrarily or in an autocratic manner; the facts in the case must clamour for them.

    12. Even if our learned brother could grant a certificate, I agree with him that no case was made out for granting one. The appellant himself filed the second appeal and paid the proper amount of court fee on it; he was not invited, much more less was he compelled by anyone to do so. The appeal was converted into revision at a later stage when in the course of arguments it was contended that it was not maintainable. A party which files a suit, appeal or application bearing court fee is not entitled to refund of it when the suit, appeal or application is dismissed on the ground of want of jurisdiction. If the second appeal had been dismissed on the ground that it did not lie, the appellant would not have been entitled to any refund. It would be absurd if he became entitled to it merely because this court out of indulgence allowed him to convert the second appeal into a revision application. When the second appeal did not lie, he should not have filed it at all. When he filed it and allowed an objection to be raised against its maintainability and the objection to be argued and it was finally held that it did not lie, the court fee paid on it served its purpose and could not be refunded. If an appeal was withdrawn before any action could be taken on it might be contended that the court fee paid on it was not used at all, but the same reasoning cannot be adopted when the appeal comes up for argument and an objection about its maintainability is heard. There is no question of applying the doctrine of unjust enrichment because the State has spent some time and labour in disposing of the appeal. In any case, the matter was at the discretion of our learned brother and no appeal can be successful unless it was established that the discretion was exercised arbitrarily and against the well established principles. No appeal lies against refusal to exercise inherent powers. I would dismiss this appeal with costs.

    13. Beg, J.:— I agree with my learned brother that the order appealed against is not a judgment in law and is therefore not appealable. It is not therefore necessary for me to express any opinion on other points.

    14. By The Court:— We dismiss the appeal with costs.

    15. Appeal dismissed.

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    Tej Bahadur v. Pearelal
    (Apr 2, 1957)