Citation Codes

Equivalent Citations

citation codes

Case Number

C.R.P No. 1242 of 1967.

Advocates

Messrs. V. Srinivasan and S.V Subramanian for Petrs.
Mr. K. Venkataswami for The Addl. Govt. Pleader for State.

Judges

Ganesan, J.

Acts

Madras Court-fees and Suits Valuation Act (XIV of 1955), however, Section 70
Section 66 of the Andhra Court-fees and Suits Valuation Act (VII of 1956)
Section 70 of the Madras Court-fees and Suits Valuation Act, 1955,
3940 of 1963, Section 70 of the Madras Court-fees Act
Madras Court-fees and Suits Valuation Act, 1955,
Section 70 of the Madras Court-fees Act, 1955,
Section 66 of the Andhra Court-fees Act
provisions of the Madras Court-fees Act;
Section 70 of the Court-fees Act, 1955,
COURT FEES ACT
Section 70 of the Court-fees Act.
SECTION 47 CIVIL PROCEDURE CODE
provisions of Section 12 (4)
Madras Court-fees Act.
LAND ACQUISITION ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision petition challenges the order dated 26th October, 1966, passed by the Fourth Assistant Judge, City Civil Court, Madras in I.A. No. 5107 of 1966. The petitioner had instituted O.S. No. 4105 of 1965 claiming Rs. 3,500 as dividend and paid a Court-fee of Rs. 263. The defendant contended that O.S. No. 4105 of 1965 was not maintainable because the petitioner had earlier filed a comprehensive suit, O.S. No. 301 of 1964, which already included the same claim for Rs. 3,500. The petitioner endorsed the plaint to state that O.S. No. 4105 of 1965 was filed by mistake or inadvertence, sought permission to withdraw that suit without prejudice to O.S. No. 301 of 1964, and applied under Section 70 of the Madras Court-fees and Suits Valuation Act, 1955 for refund of the Court-fee paid. The Fourth Assistant Judge dismissed the refund application on the ground that the payment of Court-fee was not made by mistake or inadvertence and that the mistake related only to the filing of the suit. The petitioner filed this civil revision petition against that dismissal. The revision petition was ultimately dismissed, but without costs.

Legal Issues Presented

Whether the Court-fee paid by the petitioner in O.S. No. 4105 of 1965 was refundable under Section 70 of the Madras Court-fees and Suits Valuation Act, 1955 on the ground of mistake or inadvertence.
Whether a mistake in the choice of remedy (i.e., instituting an unnecessary suit when a prior comprehensive suit existed) constitutes a "mistake in payment" covered by Section 70.
Whether, after enactment of the 1955 Act, courts retain inherent power to order refunds of Court-fees beyond the situations expressly covered by statute (including the scope of such inherent powers and any recognized exceptions).
How prior decisions (including Zahoorunnissa Begum v. Mohamed Ali and other precedents) should be applied or confined in interpreting Section 70 and the power to order refunds.

Arguments of the Parties

Petitioner's Arguments

The petitioner sought refund of the Court-fee under Section 70 of the Madras Court-fees and Suits Valuation Act, 1955, on the ground that the suit O.S. No. 4105 of 1965 was filed by mistake or inadvertence.
Learned counsel for the petitioner relied on the decision in Zahoorunnissa Begum v. Mohamed Ali (1961) 2 M.L.J. 331, which was understood to hold that Section 70 could cover a mistake arising from adoption of an erroneous procedure (i.e., filing a suit when another procedural vehicle was proper).

Respondent's / Defendant's Arguments

The defendant contended that the suit was not maintainable because the claim was already included in an earlier comprehensive suit (O.S. No. 301 of 1964); implicitly, the payment of Court-fee was not the result of a mistake in thinking the fee was not due, but the mistake lay in instituting an unnecessary suit.
The position taken before the trial Court was that the Court-fee paid was properly payable under the provisions of the Court-fees Act, and therefore no refund on the basis of mistake in payment was warranted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chidambaram Chettiar, In re ((1934) 67 M.L.J. 321 : I.L.R. 57 Mad. 1028)	Defined limits of courts' power to order refund under inherent jurisdiction: refund ordered only in three cases under the old Act—(1) where the Court-fees Act applied, (2) excess payment by mistake of party, and (3) payment compelled by mistake of Court.	The Court relied on this authority to show the narrow scope of inherent powers and to explain why post-1955 Section 70 replaces broad exercise of inherent jurisdiction; it supports limiting refunds to cases falling within statutory provisions or the narrow inherent-power exceptions.
Thimmayya Naidu v. Venkataramanamma (I.L.R. (1932) 55 Mad. 641 : 62 M.L.J. 541)	Upheld bona fide mistake as ground for refund; Court ordered certificate recommending refund under inherent powers where excess fee was paid erroneously.	Used as an example of a case where a bona fide mistake in payment (excess fee) warranted relief; supports the distinction between mistake in payment and mistake in choice of remedy.
Galstaun v. Raja Janakinath Roy ((1934) 38 Cal.W.N. 185)	Calcutta High Court decision where refund was ordered when appeal was filed late due to mistaken legal advice (disapproved by Madras Division Bench in Chidambaram Chettiar).	The Madras Court noted disapproval of this Calcutta decision, indicating reluctance to allow refunds for procedural mistakes like mistaken legal advice, in contrast to mistakes in payment.
Ramakrishnayya v. Seshamma ((1935) 68 M.L.J. 369)	Refused refund where the relief originally claimed was later rendered unnecessary by the plaintiff's own conduct (surrender); emphasized that refund depends on whether fee was really payable under the Court-fees Act.	The Court quoted and critiqued the reasoning, emphasizing that the proper question is whether the fee was payable under the Act at the time, not the plaintiff's later change of opinion about the relief.
Kappini Gounder, In re ((1937) 2 M.L.J. 788)	Refused to exercise inherent powers to refund where Court-fee had been properly paid; held courts should not annul statutory provisions by returning properly paid fees.	Invoked to support the proposition that inherent powers cannot be used to grant refunds when fees were properly payable under statute.
Tej Bahadur v. Pearelal (A.I.R. 1967 All. 734)	Allahabad High Court declined to grant certificate for refund where a second appeal found not entertainable was permitted.	Referred to as an instance where refund/relief was refused when procedural missteps did not amount to mistake in payment.
Yandra Brahmam, In re ((1957) 1 An.W.R. 167)	Interpreted Section 66 of the Andhra Court-fees and Suits Valuation Act (practically identical to Madras Section 70): held that mistake in choice of remedy is not a mistake in payment under the statute.	The Court cited and adopted this reasoning to hold that Section 70 relates to mistakes in payment (payment not due or excess payment), not to mistakes in selection of remedy or procedure.
Ambubai Kalidas Pie. Ltd. v. Shah Hirachand Shamji (Division Bench, unreported, C.M.P. Nos. 3106 and 3940 of 1963)	Direct consideration of Section 70: rejected refund claims where appeals were filed mistakenly though the fees paid were the amounts payable under the Act; treated such mistakes as mistakes in conceiving that proceedings lay where none did.	Relied upon to reinforce that bona fide mistake in filing proceedings does not equate to a mistake in payment under Section 70; the Division Bench rejected refund pleas on similar grounds.
Zahoorunnissa Begum v. Mohamed Ali ((1961) 2 M.L.J. 331)	Held (at first instance) that Section 70 could cover mistakes arising from adoption of an erroneous procedure (suit filed instead of a petition under Section 47 CPC), where conversion to the appropriate process entailed a lesser fee.	The present Court declined to follow this decision broadly, holding that the mistake in choice of procedure is different from a mistake in payment under Section 70 and that Zahoorunnissa Begum must be confined to its facts.
Rathinavel v. Natchiappa ((1959) 2 M.L.J. (N.R.C.) 24)	Referenced concerning appellate reduction of Court-fee and interplay with statutory provisions (Section 12(4) of Act XIV of 1955).	Noted in the course of discussing Section 12(4) and its relation to refunds where appellate courts reduce fees fixed by trial courts; cited to explain statutory mechanisms for refund of excess fees.

Court's Reasoning and Analysis

The Court proceeded in a structured analysis grounded on statutory text and precedent. The reasoning unfolded as follows:

Statutory framework: The Court noted that Section 70 of the Madras Court-fees and Suits Valuation Act, 1955, expressly provides for ordering refunds where Court-fee was paid by mistake or inadvertence. The 1955 Act thus specifically covers cases of payment by a party through mistake or inadvertence.
Distinction between mistake in payment and mistake in choice of remedy: Relying on prior decisions (notably Yandra Brahmam and the reasoning in older Madras decisions), the Court emphasized that Section 70 pertains to mistakes relating to payment itself — i.e., where a fee was paid though it was not due or was paid in excess — and does not extend to mistakes that consist of choosing an inappropriate remedy or instituting unnecessary proceedings.
Role and limits of inherent jurisdiction: The Court reviewed earlier authorities (Chidambaram Chettiar, Thimmayya Naidu, Kappini Gounder) and concluded that, after enactment of the 1955 Act, there is little scope for exercising inherent powers to order refunds beyond narrowly defined exceptions (excess payment by mistake of party or mistake of Court). Where a statutory provision addresses the refund, courts cannot expand their inherent jurisdiction to override the statute.
Exception for unjust enrichment and administrative certificates: The Court acknowledged a limited exception where inherent powers (or governmental grace under Section 81) can be used — namely, when proceedings were not registered/numbered and no Court labour was expended (stamps defaced by Court officers but no hearing), enabling issuance of a certificate to support a refund application to the Government. This was presented as a narrow equitable route to avoid obvious injustice, not as a general power to refund fees properly payable.
Application to the facts: The Court found that the Court-fee of Rs. 263 paid in O.S. No. 4105 of 1965 was indeed payable under the Court-fees Act. The mistake identified on the record was the institution of an unnecessary suit (because the same claim existed in O.S. No. 301 of 1964), i.e., a mistake in instituting proceedings rather than a mistake in payment. Consequently, the statutory requirement for a refund under Section 70 — that the payment must have been made by mistake or inadvertence as to the fee payable — was not satisfied.
Treatment of Zahoorunnissa Begum: The petitioner relied on Zahoorunnissa Begum. The Court examined that authority and distinguished it. It observed that in Zahoorunnissa the proceedings were converted by permission of the Court from a suit to an application under Section 47 CPC, and it was not suggested that the Court-fee originally paid was not really due or was in excess under the Court-fees Act. The present Court disagreed with broad application of Zahoorunnissa and confined that decision to its facts, reiterating the distinction between mistake in procedure and mistake in payment.

Holding and Implications

Holding: The civil revision petition is DISMISSED. The dismissal was ordered without costs.

Implications and consequences:

Direct effect: The petitioner's application for refund of the Court-fee in respect of O.S. No. 4105 of 1965 failed because the Court-fee was found to have been payable under the Court-fees Act and the mistake lay in instituting an unnecessary suit rather than in the payment of fee.
Doctrinal clarification: The Court reaffirmed the distinction between (a) mistakes in payment (covered by Section 70) and (b) mistakes in choice of remedy or procedure (not covered by Section 70). The Court confined the decision in Zahoorunnissa Begum to its facts and rejected a broad rule that Section 70 covers mistakes in selection of procedure.
Limits on inherent powers: The opinion emphasizes that, following the 1955 Act, there is very limited scope for courts to invoke inherent powers to order refunds of Court-fees beyond the narrow situations recognized by statute and earlier authoritative decisions; a narrow equitable exception exists for cases of unjust enrichment where no Court labour was expended and the matter was never registered/heard.

This summary is confined strictly to the content and reasoning contained in the provided opinion and does not add facts or inferences beyond that text.

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Factors (P.) Ltd. v. Amalgamated Commercial Traders (P.) Ltd.

1. This revision petition is directed against the order dated 26th October, 1966, passed by the Fourth Assistant Judge, City Civil Court, Madras in I.A.No. 5107 of 1966. The application before the Fourth Assistant Judge, City Civil Court, was filed under Section 70 of the Madras Court-fees and Suits Valuation Act, 1955, for refund of the Court-fees under the following circumstances. The petitioner herein filed O.S. No. 4105 of 1965 for recovering a sum of Rs. 3,500 from the defendant as dividend due to him and paid a Court-fee of Rs. 263 in respect of the said claim. On the contention of the defendant that the suit was not maintainable, as the petitioner had already filed a comprehensive suit, O.S. No. 301 of 1964 including the claim for Rs. 3,500 the petitioner made an endorsement on the plaint to the effect that the suit O.S. No. 4105 of 1965 had been filed by mistake or inadvertence, that he may therefore be permitted to withdraw the suit without prejudice to his contentions in the earlier suit, O.S. No. 301 of 1964 and that the Court-fee paid by mistake or inadvertence may be ordered to be refunded.

2. The Fourth Assistant Judge had dismissed the application on the ground that payment of the Court-fee in the suit was not by any mistake or by any inadvertence and that the mistake or inadvertence was with reference only to the filing of the suit in question. Hence the revision.

3. In Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad. 1028, a Division Bench of this Court had, while dealing with a case under the old Court-fees Act (VII of 1870) observed that Courts can order, refund only in three cases--(1) where the Court-fees Act applied, (2) where there is an excess payment by mistake and (3) where on account of a mistake of Court a party has been compelled to pay the Court-fees either wholly or in part; and that outside these cases the Courts have no authority to order a refund. The refund of Court-fee on account of excess payment by mistake on the part of a party or a mistake of the Court was ordered by Courts in exercise of their inherent powers.

4. Under the present Madras Court-fees and Suits Valuation Act (XIV of 1955), however, Section 70 had been specifically enacted for dealing with cases of refund of fee paid by mistake or inadvertence of a party to the suit. Section 70 of the Act provides that the Court-fee paid by mistake or inadvertence shall be ordered to be refunded.

5. I shall now refer to some of the decisions relating to mistake under the old and the new Madras Court-fees Act. In Thimmayya Naidu v. Venkataramanamma I.L.R. (1932) 55 Mad. 641 : 62 M.L.J. 541, this Court upheld the plea of bona fide mistake and purporting to act under its inherent powers ordered the issue of a certificate recommending refund in a case where a party in an appeal to the High Court under the Land Acquisition Act paid in the first instance ad valorem Court-fee on the amount of the award, when a lesser Court-fee was payable, if the relief was treated as one for a mere declaration. This Court upheld the plea that he had paid excess Court-fee erroneously.

6. In Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad. 1028, already cited, this Court refused the request for refund in a case where the appeal was dismissed as withdrawn. The learned Judges disapproved of the decision of the Calcutta High Court in Galstaun v. Raja Janakinath Roy (1934) 38 Cal.W.N. 185, where refund was ordered in a case where the appeal which was barred by limitation was filed late because of mistaken legal advice.

7. In Ramakrishnayya v. Seshamma (1935) 68 M.L.J. 369, this Court, while dealing with a case under the old act vii of 1870, rejected the claim for refund in the following circumstances. The reversioner filed a suit against the widow and other alienees challenging the genuineness of a will left by the deceased, conferring absolute title on the widow and the alienees. The suit was one for declaration, but subsequently he obtained a surrender from the widow, converted the suit into one for possession and asked for refund of Court-fees in respect of the relief relating to the declaration of the will, claiming that this relief has since become unnecessary as a result of the surrender, he had obtained from the widows. The Court observed that, as the plaint originally -stood, the plaintiff rightly considered the relief relating to the will as essential and that the fact that by his having altered the suit and claimed a higher relief, the prayer relating to the will has become since unnecessary, can make no difference whatsoever. With great respect to the learned Judge, the proper question which should have been posed was whether Court-fees paid was really payable or not under the provisions of the Act VII of 1870 on the relief relating to the declaration in respect of the will; and the question did not depend upon the opinion of a plaintiff about the necessity of the relief in a suit. If the view of the learned Judge has to prevail, it would be open to a plaintiff to give up a relief at a subsequent stage as being unnecessary and to claim refund on the ground that he had mistakenly thought at the time of institution of the suit that the relief was essential.

8. In Kappini Gounder, In re (1937) 2 M.L.J. 788, a Bench of this High Court refused to order refund in exercise of its inherent powers when the appeal was dismissed as withdrawn having been settled out of Court. The learned Judges observed that, while a refund was permissible in the case of a mistake of a party, or in case of a wrong order of Court the inherent power should not be exercised in a case where Court-fee had been properly paid. If the Court-fee properly paid is refunded that would render nugatory the express provisions of the Court-fees Act and that it is elementary that no Court has inherent power to do that which is prohibited by statute.

9. In Tej Bahadur v. Pearelal A.I.R. 1967 All. 734, the Allahabad High Court declined to grant a certificate when the second appeal which was found not entertainable was permitted.

10. In Yandra Brahmam, In re (1957) 1 An.W.R. 167, the Andhra High Court while dealing with Section 66 of the Andhra Court-fees and Suits Valuation Act (VII of 1956) which is practically identical with Section 70 of the Madras Court-fees Act, 1955, refused to accept the contention that a mistake which lay in the choice of the remedy and which consequently resulted in the payment of Court-fee must also be regarded to be the result of mistake or inadvertence. The learned Judges observed that Section 66 of the Andhra Court-fees Act had nothing to do with a mistake in the selection of the remedy but related only to cases where the mistake had been committed in payment of Court-fee, i.e., where payment has been made though it is not due or the Court-fee has been paid in excess. In that instance a writ petition was filed by mistake.

11. In the unreported decision of a Division Bench of this Court in Ambubai Kalidas Pie. Ltd. v. Shah Hirachand Shamji C.M.P. Nos. 3106 and 3940 of 1963, Section 70 of the Madras Court-fees Act came up for direct consideration. In the first of two cases dealt with in that judgment, an appeal was filed when under the law no appeal lay, and in the second appeal was filed on a misapprehension as to the existence of an order which did not in fact exist. In both the cases there was no mistake in regard to the Court-fee that was paid on the memorandum in the sense that the amounts paid were other than what would be payable under the provisions of the Madras Court-fees Act; and the contention was that there was a bona fide mistake in filing the appeals themselves, as under the law, such appeals were not competent. While rejecting the plea for a refund on the ground of mistake, Ramachandra Iyer, C.J., who delivered the judgment on such payment is really consequent on the mistake in conceiving that the proceedings lay where none exist under the law.

12. The law on the subject is thus fairly clear. In order to claim a refund of fee paid by mistake or inadvertence, under Section 70 of the Court-fees Act, 1955, the party must, in the first place, establish that no Court-fee was payable at all by him or that excess Court-fee had been paid. In the second place, he must go further and establish that the payment was due to his mistake in thinking that the amount paid as Court-fee was really payable under the provisions of the Court-fees Act. Where, however, the payment had been made out of a mistake on his part in the choice of a remedy no refund can be claimed, as the payment evidently has not been made due to any mistaken belief that the same was really due under the Court-fees Act. It is also open to him to establish that the payment was due to his inadvertence, in. other words that he had wrongly paid the Court-fee by oversight or negligence.

13. It also appears to be clear that, after the enactment of the Madras Court-fees and Suits Valuation Act, 1955, there is really no scope at all for the exercise of inherent powers by Courts to order refund of Court-fees. As I have already observed, this Court has in Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad, defined the scope of the exercise of inherent powers in regard to refund of Court-fee paid and had clearly restricted the same to only two cases i.e., excess payment made by mistake of party and excess payment as a result of a mistake of Court. Admittedly cases of payment by a party as a result of mistake or inadvertence are now specifically covered by Section 70; and Section 12 (4) of the Act XIV of 1955 provides that the appellate Court is bound to order a refund of the excess Court-fee when it reduces the Court-fee fixed by the trial Court. The provisions of Section 12 (4) evidently do not appear to have been brought to the notice of Rajagopalan, J., in the case reported in Rathinavel v. Natchiappa (1959) 2 M.L.J. (N.R.C.) 24, wherein he had observed that, while dealing with a case where the appellate Court reduced the fees determined by the trial Court, Section 70 would govern such cases of mistake also, the mistake being that of the lower Court which was rectified by the appellate Court.

14. The only exception where the Court will exercise its inherent powers relates not to cases of refund but only to cases where the doctrine of unjust enrichment can be successfully invoked by a party. Where the application, suit or appeal had not been registered or numbered and consequently not heard by the Court, but stamps had been defaced by the officers of Court, and if the proceedings are withdrawn by the party before the Court would take any action, it can be legitimately contended that the Court-fee paid was not used at all and that the State had not expended any time or labour in disposing of the matter; and it would be open to the Court in such cases to issue a certificate setting forth those circumstances for enabling the party to obtain refund of the Court-fee. Inherent powers are exercised by Courts in such cases with a view to avoid obvious injustice; and it would be open to the Government to order refund as an act of grace, acting under section 81 of act xiv of 1955, on an application by the party who produced the certificate. This view had been endorsed by the Division Bench of this Court in the unreported case cited supra.

15. In the present instance, it is not disputed that the Court-fee paid on the suit O.S. No. 4105 of 1965 was payable under the provisions of the Court-fees Act and that the suit had been withdrawn as unnecessary only on the contention of the defendant that the suit was not maintainable, as the petitioner herein had already filed a comprehensive suit O.S. No. 301 of 1964 including the claim for Rs. 3,500 covered by the suit O.S. No. 4105 of 1965. It is obvious that the mistake lay in the institution of an unnecessary suit and not in the payment of Court-fees.

16. The learned Counsel for the petitioner strongly relies on the decision of Ramachandra Iyer, J. (as he then was) in Zahoorunnissa Begum v. Mohamed Ali (1961) 2 M.L.J. 331 in which it was held that Section 70 of the Act would cover a mistake which arises as a result of the adoption of an erroneous procedure. In that case a suit was filed by mistake in a case which requires only a petition under Section 47, Civil Procedure Code, and on objection by the respondent the party was permitted to convert it into an application under Section 47, Civil Procedure Code, which involved a lesser Court-fee. This judgment was subsequently considered by Ramachandra Iyer, J. and Ramakrishnan, J., in the unreported decision cited supra, and the Division Bench approved of this case by observing that that was a case where, although the proceedings were initiated as a suit, what the party intended to file was really with respect to certain matters arising in execution of a decree which in certain circumstances can be made by an application and in certain others only by a suit and that the fact that the proceedings were called a suit, cannot alter its essential nature.

17. With great respect I regret that I am unable to follow the decision in Zahoorunnissa Begum v. Mohamed Ali (1961) 2 M.L.J. 331. In that case the suit was converted into an application with the permission of the Court, as the suit was not the appropriate remedy and was not maintainable under the circumstances, and it is not suggested that the Court-fee paid on the suit as framed was not really due or had been paid in excess under the provisions of the Court-fees Act. As rightly pointed out by the Andhra High Court in Yandra Brahmam, In re (1957) 1 An.W.R. 167, a mistake in the choice of remedy cannot be equated with the wrong payment of Court-fee due to mistake or inadvertence. The mistake in the choice of procedure, in my view, is entirely different from a mistake in the payment of Court-fees and is not covered by Section 70 of the Court-fees Act. The mistake in that case did not lie in thinking that excess Court-fees was really due on the suit under the provisions of the Court-fees Act. The said decision, in my view, does not appear to be correct and, in any event, must be confined to the facts of that case.

18. In any event, I am clear that the petitioner cannot succeed on the strength of the said decision. Admittedly there is no mistake of procedure here and the mistake lay in filing a suit which was obviously unnecessary in view of the institution of a comprehensive suit earlier.

19. In the result, this civil revision petition is dismissed; but under the circumstances, without costs.

Factors (P.) Ltd. v. Amalgamated Commercial Traders (P.) Ltd.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's / Defendant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Factors (P.) Ltd. v. Amalgamated Commercial Traders (P.) Ltd.

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