1. This matter has come- before the Full Bench on a reference made by a Division Bench consisting of my Lord, the Chief, Justice and Ratnam, J. The facts which gave rise to the said order of reference may briefly be set out. The petitioner herein is the other respondent in S. A. 1606 of 1963, which was allowed by this court on 28-4-1977. Aggrieved against the said judgment the petitioner purported to file a Letters Patent Appeal before this court on the basis of leave granted by this Court while allowing the second appeal. On the office pointing out that the, Letters Patent Appeal is not competent in view of Section 100-A, C. P Code as amended by Central Act 104 of 1976, the petitioner realised that he cannot maintain the appeal. He then filed the present petition for the refund of court-fee purporting to be under Section 70 of the Tamil Nadu Court-fees and Suits Valuation Act, and Sec. 151, C. P. Code. Section 70 can have no application to the facts of this case as it could not be said that the court-fee had been paid by mistake or inadvertence. Though Mr. Vanchunathan, learned counsel for the petitioner, concedes this position, he however seeks the grant of a certificate from this court in exercise of Its inherent powers under Section 151, C. P. Code, not directing or recommending the refund of court-fee but indicating the circumstances under which the court-fee has been paid and defaced so as to enable the petitioner to get a refund of the court-fee from the Revenue authorities ex gratia. According to him it has been the uniform practice of this court to grant a certificate stating the circumstances under which the court-fee was paid. Thus the question that arises for consideration by the Full Bench is whether in cases where refund cannot be ordered under any provision of the Court-fees Act the court can grant a certificate stating the circumstances under which the court-fee has been paid so as to enable the party to get a refund of the court-fee from the Revenue authorities ex gratia or otherwise.
2. The question of refund of court-fee has come up frequently before this court. Some decisions have been rendered with reference to the provisions 'of Sections 13, 14 and 15 of the Court-fees Act, 1870 and the others have been rendered with reference to the provisions of Sections 66 to 70 of the Tamil Nadu Court-fees Act of 1955 which has replaced the Court-fees Act of 1870 so far as it is applicable to the State of Tamil Nadu. Sections 13 to 15 of the Court fees Act of 1870 enabled a party to obtain a refund of the court-fee in the circumstances set out in those sections. Dealing with the scope of sections 13 to 15 of the 1870 act, the Supreme Court in Om Prakash Gupta v. State of U. P. had expressed the view that the said provisions were exhaustive of the provisions that enabled a party to obtain a refund of court-fee and that, therefore, there is no scope for an inherent power to grant a refund of court-fee apart from the said provisions. A similar view was taken in Tej Bahadur v. Pearelal, , wherein it has been held that the Court has no inherent power to grant a certificate for refund of court-fee for, if the court were to grant certificate in the supposed exercise of any such inherent power it would not be a case of refund being granted on the strength of a certificate, but on account of an act of grace on the part of the Government and, therefore, such a certificate being by no means mandatory, the court must refuse to grant it. In Tarachand Ghanshyamdas v. State of West Bengal, and Sriramulu v. Board of Revenue , the court has taken the view that the Legislature having applied its mind to the question whether the fee levied in the first instance should be retained in all cases and specifically indicated the occasion on which the fee should be refunded the court cannot modify or add to the provisions by ordering refund in exercise of its inherent powers and thus interfering indirectly with the revenues of the State by purporting to make equitable adjustments of the court-fees in the exercise of its inherent powers. This court, however, has taken the view in the following decisions that though a party may not be entitled to get a refund under the provisions of the said Sections 13, 14 and 15 of the Central Act 1870, still the court has got power to grant a certificate to the effect that the court-fee received by the court has not been utilized or that the stamps have been spoiled so as to enable the party to apply to the Government for refund of the court-fee as a matter of grace. This is on the basis that granting such a certificate is different from directing a refund of the court-fee and that only for directing a refund of court-fee a statutory basis is necessary but for giving a certificate the court's inherent power can be invoked.
3. In Thimmayya Naidu v. Venkataramanamma ILR 55 Mad 641: (AIR 1932 Mad 438) a Division Bench of this court took the view that the High Court could under its inherent powers assist the appellant who had erroneously paid court-fee by issuing a certificate to the party stating that excess court-fee has been levied so as to enable him to approach the Revenue authorities for refund of the excess court-fee paid. According to the Bench what the court does in such cases is to decide what is the proper court-fee payable and then issue a certificate to the party that excess court-fee has been levied. In support of its view the Bench relied on the decisions of the Calcutta High, Court in re G. H. Grant (1870) 14 Suth WR 47, Harihar Guru v. Ananda Mahanty (1913) ILR 40 Cal 365, Girishchandra Mali v. Girishchandra Dutta, 36 Cal WN 190: (AIR 1932 Cal 450), the decision of the Allahabad High Court in In re Chauba Munalal ILR 52 All 546: (AIR 1930 All 471 (1)) and the judgment of the Patna High Court in Sasibhushan Mazumdar v. Maniklal Chandra (1928) 107 Ind Cas 825, all of which laid down that Section 151, C. P. C. enables a High Court to order refund of court-fee paid in excess when obvious injustice would be done if it were not repaid. On the basis of the above decision it was held by this court in the above case that it would be unreasonable and unjust for the High Court not to assist a party to recover the excess court-fee erroneously paid under its own order or under the order of a court subordinate to it.
4. In Chidambaram Chettiar in re ILR 57 Mad 1028: (AIR 1934 Mad 566) it was held that a court can order refund of court-fees under Section 151, C. P. C. where there is an excess payment made by mistake or where on account of the mistake of the court the party has been compelled to pay court-fee either wholly or in part and that outside these cases the court has no power to order refund Under Section 151, C. P. C. ' The court observed: -
"In our opinion, the court can order a refund (i) where the
Court-fees Act applies, (ii) where there is an excess payment by mistake, or (iii) where on account of the mistake of a court, a party has been compelled to pay court-fees either wholly or in part. Outside these cases we are not satisfied that we have authority to direct a refund"
.
In Kappini Gounder In Re, (1937) 2 Mad LJ 788: (AIR 1938 Mad 67) another Bench of this court observed that while refund was permissible in a case of miss take of party or in case of a, wrong order of court-the inherent power should not 'be exercised in a case where the court-fee had been properly paid.
5. In C. M. P. 4439 to 4442 of 1941 (unreported) a Division Bench of this Court rejected a petition for refund of the court-fee paid in certain appeal memoranda but not numbered as appeals because of the reluctance of the party to pay the deficit court-fee rightly demanded, on the ground that there is no provision in the Court-fees Act on which the party could rely for the refund of the court-fees paid on the appeal memoranda filed by them but subsequently withdrawn by them before numbering. The Bench observed-
"The petitioners are asking something the court has no power to grant them. In Chidambaram Chettiar In Re
57 Mad 1028: (
AIR 1934 Mad 566) a Bench of this court held that the court has no power to order a refund of court-fees except in three cases, namely, (i) where the
Court-fees Act applies; (ii) where there is an excess payment made as the result of a mistake and (iii) where on account of the mistake of the court a party has been compelled to pay court-fees either wholly or in part. A decision to the same effect was given by another Bench of this Court in In re Kappini Gounder (
1937) 2 Mad LJ 788: (
AIR 1938 Mad 67). These decisions are binding on us and provide the answer to those applications which will be dismissed."
6. In Vedaranyaswami Devastanam In re, (1942) 1 Mad LJ 451: (AIR 1942 Mad464), Abdur Rahman, J. took the view that though there is no specific provision in the Court-fees Act, which empowers the court to order a refund, it is competent for the High Court to declare that any particular plaint or memorandum of appeal was overvalued and then leave the matter to the Revenue authorities for the grant of a refund in accordance with the declaration given by the Court, and by doing this the court would he assisting the party to recover the excess court-fee erroneously paid under its own order or under orders of Courts subordinate to it.
7. In Nagaratnam In re , Panchapakesa Ayyar, J. held that a Court's power to allow the refund of court-fee is not confined to Sections 13, 14 and 15 of the Court-fees Act, and it has got some more, that it can order refund of the court-fee under Section 151, C. P. C., where there is an excess payment made by mistake, or where on account of the mistake of the court a party has been impelled to pay court-fees either wholly or in part and that outside these cases the court has no power to order refund under Section 151. In that case, a party filed a memorandum of second appeal affixing proper court-fee stamps. But later he compromised with the other side and as the second appeal became unnecessary in view of the compromise, he, filed a petition under Section 151, C. P. C., for a direction to refund the Court-fee paid by him. That petition was however rejected by the court on the ground that there is no provision in the Court-fees Act, on which the petitioner can rely for refund of the court-fee paid on the memorandum filed but later withdrawn as there is no mistake on the part of the Court in making the petitioner pay the court-fee nor was there any excess court-fee paid by mistake and that the only remedy if any avail- able to the petitioner was not to apply for a refund but to apply to the Government ex gratia and misericordia dominiregis (by favour and by the mercy of our Lord the King) for a refund less the one-anna-in-the rupee deduction, as for the spoilt stamp papers, if they are pleased to grant it.
8. In Krishnamurthi v. Krishnanda Mudaliar (1958) 1 Mad LJ 183, P. N. Ramaswami, J. held that in a case where an appeal was presented with deficit court-fee and returned but not represented as having become unnecessary, though no refund of court-fee could be ordered by Court under the Court-fees Act 1870, still the Court could issue a certificate that the appeal was not numbered and direct the appellant to apply to the Revenue authorities for ex gratia refund as in the case of spoilt stamps.
9. Thus it is seen that under the Central Act of 1870 refund was granted by courts in exercise of its inherent powers where excess court-fee had been paid by mistake or by wrong order of court subsequently set aside. There were some cases where refund had been granted under certain other circumstances, but the trend of decisions was to restrict refund only to the above two cases besides cases covered by sections 13 to 16 of that act.
10. We have to now find out as to what is the position under the Tamil Nadu court-fees and Suits Valuation Act, 1955. This Act makes provisions for refund of court-fee in some cases where refund was not admissible under Sections 13 to 15 of the Central Act. Sections 66 to 70 deal with refund of court fee. Sections 67 and 68 correspond to Sections 13 and 15 of the Central Act. Section, 70 seems to take note of the decisions rendered earlier and provides for refund of court-fee wherever it is paid by mistake or by inadvertence. Section 66 is also new and it provides for refund in cases where a plaint or memoranda of appeal is rejected on the ground of delay in its representation or for insufficiency of court-fee. The question now is whether there is any scope for the Court to direct refund in the exercise of its inherent powers in cases not falling within the specific provisions of Sections 66 to 70. This Court, even after the enactment of the Tamil Nadu Court-fees and Suits Valuation Act, 1955, has been taking the view that in cases not covered by Sections 66 to 70, the court can issue a certificate to the effect that the court-fee affixed has not been utilised so as to enable the party to apply for refund before the Revenue Authorities without directly passing an order of refund. Mohan v. Balaram, (1959) 1 Mad LJ 110, Srimati Periathayya v. Narasinga Rao, and Ramasami Nadar v. State of Madras, , are the three instances in point.
11. Mohan v. Balaram, (1959) 1 Mad LJ 110, was a case which arose under the Tamil Nadu Court-fees and Suits Valuation Act, 1955. There an application for leave to appeal in forms pauperis was rejected and the party was directed to pay the court-fee within a specified time. The party made a part payment and applied for further time for payment of the balance. As the balance of the court-fee was not paid within that time allowed there was rejection of the appeal. An application for refund of the court-fee was made on the ground of inability to pay the balance and of the appeal having become infructuous. P. N. Ramaswami J. held that the appeal having become infructuous it is a fit case in which the Court should direct the issue of a certificate of refund of the court-fee paid to enable the party to apply to the Revenue Authorities for ex gratia payment as in the case of spoilt stamps.
12. In Srimati Periathayya v. Narasinga Rao, , Veeraswami, J. (as he then was), took the view that merely because there is no provision in the Court-fees Act, enabling a party to get a refund the party is not without remedy to obtain refund in suitable cases, that the court has an inherent power under Section 151, C. P. C. to order refund in certain circumstances, that where a person has been compelled to pay a higher court-fee because of an erroneous view taken by the court, the court has inherent power to set right its own mistake by ordering refund and that in a fit and proper case the Court can issue a certificate to enable the party to apply for refund ex gratia and misericordia dominiregis. In that case the court-fee was paid on a plaint which was numbered as a suit but later stood abated by the, provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. When the party applied for the refund of the court fee paid on the plaint, a certificate of cancellation of the stamp was directed to be issued to enable the party to apply to the Government for refund ex gratia. After referring to the earlier decision in Chidambararn Chettiar in re ILR 57 Mad 1028: (AIR 1934 Mad 566) the learned Judge observed: -
"It follows, that this Court has a limited power to order refund, in exercise of its inherent power under
Section 151, C. P. C. but it does not extend to cases other than the instance mentioned in Chidambaram Chettiar in re.
57 Mad 1028: (
AIR 1934 Mad 566). Apparently this decision proceeded on the basis that if a party was compelled because the court took a particular view, to pay court-fee, it had an inherent power to set its own mistake right. It was, perhaps, on this ground the court considered that the inherent power of the Court under
Section 151, C. P. C., would extend to refund of court-fees in the particular cases of mistake or over sight by court, which was responsible for the excess court-fee paid by the litigant"
.
In Ramaswami Nadar v. State of Madras, , an unnumbered writ appeal was dismissed as withdrawn. The party applied for refund of the court-fee under Section 70. The Court, after holding that Section 70 of the Act cannot be invoked to get the refund of court-fee, directed the issue of a certificate for refund of the court-fee subject to the reduction of the normal spoliation charges. In that case the Court took the view that even in a cam where there is no statutory provision under which refund could be claimed, still if the Court is satisfied ex debito justitiae that relief should be given to the parties it can direct a certificates has been done in it number of cases for refund of the court deduction of the usual percentage aid that as such a practice of issuing certificates by the courts has long come to stay, on the principle of stare decision also the Court may in proper, cases issue such a certificate.
13. Another Division Bench in an unreported decision in C. M. P. Nos. 3106 and 390 (Sububai Kalidas Pvt. Ltd. v. Sha Hirachand, Shanji) had expressed the view that there is no inherent power in a court to direct the refund of court-fee from the provisions contained in sections 66 to 70, but that does not mean that the court had no power to issue a certificate and that the true intention of a certificate so granted under the inherent power of the court is merely to apprise the Government of the circumstances in which the court-fee stamps which were received by the court happened not to be utilised but on the other hand defaced them with a view to enable it to exercise its powers of granting relief to the party. The learned Judges felt that the question to not a matter of any prestige of the court for the Government seldom declines to honor such a certificate and that therefore, it will be competent for the court in cases not covered by Sections 66 to 70 to grant a certificate to the party that the stamps had been defaced without a direction accompanying such certificate compelling the Government to make a refund either of the whole or part of the court-fee.
14. In Factors (P.) Ltd. v. Amalgamated - Commercial Graders, (1970) 1 Mad 11 529 Ganesan, J. took the view that where the statute is specific and clear courts cannot normally order refund under its inherent powers, except in cam where it would be unjust to deny refund, that where the suit or appeal has not been registered at all any action thereon, the court may grant a certificate to the effect that the court-fee paid has not been used at all to enable the party to obtain a refund ex gratia from the revenue authorities.
15. In Vengammal v. Ramachandran, Venkstaraman and Gokulakrishnan JJ. dealing with the scope of the inherent power of the court in a case where an unnumbered appeal was withdrawn held that a certificate confined to the statement of facts without any recommendation or expression of opinion that the applicant is entitled to a refund of court-fee may be issued leaving it to the Collector in his discretion to refund the court-fee or not. The learned Judges after referring to the earlier decision held that a certificate in a limited form merely stating that the court-fee was affixed in the unnumbered appeal and the same has been withdrawn can alone be issued and there can be no expression of opinion whether the party is entitled to a refund of the court-fee or not, in view of the practice followed by this court at least for 20 years.
16. On a due consideration of the matter, we are clearly of the view that the issue of a certificate limited to the statement of facts cannot be done under the purported exercise of the inherent power under Section 151, C. P. C. There cannot be any dispute that the power under Section 151, C. P. C. is a judicial power and not an administrative or ministerial power. The issuance of a certificate that the court-fee was affixed but that it was not utilised as the proceeding was withdrawn cannot, in any sense, be said to constitute the exercise of judicial power. The earlier decisions before Nagaratnarn In re , do not in fact contemplate the issue of such certificates. What they contemplated was the issue of a certificate for the refund of court-fee in exercise of the inherent power ex debito justitiae under Sec. 151, C. P. C. in cases not covered by the statutory provisions and that too only in two instances, (i) where the court-fee has been paid in excess by the mistake of the party and (ii) where the excess court-fee has been paid under orders of court. In granting such certificates the Court exercises only Judicial power and decides what is the proper court-fee payable and what is the excess court fee paid. The principle underlying these decisions, if we may say so with respect, is both good law and sound sense, but to go further and hold that the court-fee properly paid can lie refunded would be to render nugatory the express provisions of the Court-fees Act, for what difference does it make in principle between permitting a document to be filed originally without a court-fee and refunding the court-fee already paid in respect of it? It is elementary that no Court has inherent power to do that which is expressly prohibited by statute. Out of the two instances where refund of court-fee was ordered under Sec. 151, C. P. C., one has now been brought under Section 70 which enables the party to get refund on the ground of mistake. However, the said Section 70 cannot be invoked where the court-fee has been paid pursuant to an order of court which is subsequently reversed or set aside, for hi that case the payment of court-fee cannot be said to be one made by mistake or inadvertence. Thus, out of the three cases contemplated in Chidambaram Chettiar's case, ILR 57 Mad 1028: (AIR 1934 Mad 566) the case of payment of excess court-fee pursuant to an order of court which is subsequently reversed or set aside still remains uncovered by any of the provisions of the Tamil Nadu Court-fees and Suits Valuation Act. In such cases, Section 151, C. P. C., can be applied, for it is the court which erroneously compelled the party to pay the court-fee and therefore the court must have the power, in exercise of its inherent power, to remedy the wrong which it itself perpetrated.
17. As already stated, the decision in Chidambaram Chettiar In re ILR 57 Mad INS: (AIR 1934 Mad 566) clearly laid down that outside the three instances set out above the court has no authority to direct refund in exercise of its inherent power. The same view has been taken in later decisions also.
18. In Secretary of State v. Veeraya Vandayar, AIR 1940 Mad 451 an application for refund of court fee in a case where there is no question of excess court fee having been paid or of any court fee having been paid under a mistake was dismissed on the ground that there is no inherent power to grant refund or grant a certificate under the Court-fees Act. We are also in full agreement with the said view. Where a litigant has paid court fees which he was bound to pay under the law for his plaint or memorandum of appeal, the court by ordering refund under its inherent powers cannot indirectly exempt him from the obligation imposed upon him by the statute and thereby nullity the provision of Section 6 of the Court-fees Act. It is only in cases where the court fee has been paid under erroneous orders of court, the court can relieve the party from the consequence of its erroneous orders by ordering refund of court fee in exercise of its inherent powers.
19. Though the decisions starting from Nagaratnam In re , have accepted the principle laid down in Chidambaram Chettiar In re ILR 57 Mad 1028, they have however taken the view that a certificate that the stamps defaced have not been utilised can be given under the inherent power under Section 151 C. P. C. We do not see that the grant of such a certificate is in exercise of the judicial power. Admittedly, there is no reference to such certificate either in the provisions of the Act or in the rules framed there under. As a matter of fact, the Act does not refer to any certificate at all. Secs. 66 to 70 merely refer to the orders of courts directing refund of court fee. The rules framed under Section 82, however, refer to the issue of certificates by the court. But the certificates contemplated under the rules are entirely different. They are to accompany orders of refund passed by the Court. Rule 3 of the Rules framed by the Government under Section 82(2) is as follows:-
"3. Issue of certificate by court: (a) The Court which orders the refund of court fee shall issue a certificate in Form I, Part II, to the person or persons entitled to the refund, along with a bill for refund of court fees duly drawn in form 1-A (Part II). The court shall also send an advice in form II to the Treasury Officer within the jurisdiction of the court. The signature(s) against item 9 (a) of form I shall be obtained in the presence of the Presiding Officer of the court who shall take the precaution of comparing the signature with that of signature on record in the case file........"
Rule 4 dealing with the procedure to be followed by Treasury Officer says that the person in whose favour the refund certificate is issued by the court, shall present it to the Treasury Officer duly stamped with a discharge certificate thereon and on such presentation the Treasury Officer shall satisfy himself about its genuineness by verifying it with the certificate in form I, Part I. The certificate in form I refers to the order passed by the court for refund of the court fee in favour of the party either under the
provisions of the Tamil Nadu Court-fees and Suits Valuation Act or under
Section 151, C. P. C. Thus, it is clear that the rule-making authority has proceeded on the basis that a certificate is granted both in cases where refund is ordered under the
provisions of the Court-fees Act as also in cases where the refund is ordered under
Section 151 C. P. C. As already stated,
Section 151 C. P. C., will enable the party to get a refund of the court-fee only in two circumstances (1) when the party has paid excess court-fee under orders of court which orders have been set aside later, and (2) excess court fee paid by mistake of the party. Payment of excess court-fee due to the party's mistake can now be brought under
Section 70 of the Tamil Nadu Court-fees and Suits Valuation Act, which specifically provides that court-fee paid by mistake or by inadvertence shall be ordered to be refunded. But this section will not cover the cases in which the party has paid excess court fee under orders of court which orders are subsequently reversed or set aside. Thus the rules framed under Section 82 contemplate a direction to refund followed by a certificate in form I in cases where the excess court-fee is paid under orders of court and not a certificate that the stamps defaced bad not been utilised.
20. As already stated, the grant of a certificate that the court-fee stamps though defaced have not been utilized cannot be taken to be in exercise of a judicial power. Such a certificate can always be obtained either by the party or by the revenue authorities, to whom the party approaches for refund of the court fees from the Registrar or other ministerial officers of court. We do not see how the inherent power under Section 151 C. P. C., could be invoked for performing a ministerial act. Further, by the issuance of such a certificate with- out any sanction behind it the court will be stultifying itself. It is no doubt true, the question is not one of prestige of the court but at the same time it cannot be overlooked that when there are ministerial officers who can issue a certificate that the stamps defaced have not been utilised in the proceeding, the court should be loath to exercise such a function. Merely because a party wants such a certificate from the court instead of from its ministerial officers, the court is not bound to grant the same.
21. As already stated, the inherent power under Section 151 C. P. C. is Judicial power and it cannot be invoked to pass administrative and ministerial orders such as the issue of a certificate that the stamps though defaced had not been utilised. The said inherent Power under Section 151 C. P. C., an already stated, can be invoked by the court for granting refund of court-fee only in cases where excess court-fee has been paid under orders of court which orders are subsequently reversed or set aside, for in such cases the court is bound to rectify its own mistake in calling upon the party to pay the court-fee which he is not bound to pay under the law. We are, therefore, of the opinion that the court has no power to grant a certificate under Section 151 C. P. C., merely setting out the facts that the court-fees paid though defaced have not been utilised, and the decisions of this Court on this point starting from Nagaratnam in re , cannot be taken to be good law.
22. The petition for the issue of a certificate as prayed for by the petitioner is therefore rejected.
23. Petition dismissed.
Nadu Court-fees and Suits Valuation Act, 1955.