Gajendragadkar, J.:—
In this matter, a short point under the Court-Fees Act has been raised by Mr. Pathak before us. An application was made by Mr. Pathak on behalf of the appellant for the refund of court fees paid by him on his memo of appeal. That application has been rejected by the Registrar and Mr. Pathak argues that the Registrar's decision is wrong in law. There is no reported decision of this Court precisely on the point raised before us and so at our instance Mr. Gambhirwala has appeared on behalf of the Government Pleader to assist us in deciding this point.
The suit from which the appeal arose had been filed by the plaintiff to recover possession of the suit property together with arrears of rent and mesne profits. This claim was resisted by the defendant on several grounds and the learned Judge framed as many as 13 issues on the pleadings. The plaintiff's claim with regard to the possession was rejected by the learned Judge. His claim with regard to the arrears of rent was decreed. The plaintiff came to this Court against the decision of the learned trial Judge rejecting his claim for possession. Before this Court, the question of jurisdiction was raised under the Rent Act, LVII of 1947, it was contended that the suit fell within the provisions of Bombay Act LVII of 1947 and the argument was that the only Court which had jurisdiction to try this suit was the Court of Small Causes at Ahmedabad. In fact, the suit had been tried by the 3rd Joint Civil Judge (S.D), Ahmedabad. Mr. Justice Rajadhyaksha and my brother Vyas who heard this appeal accepted the plea of want of jurisdiction in the trial Court, set aside the decree passed by the trial Court and remanded the case for disposal in accordance with law to the learned Judge of the Small Causes Court at Ahmedabad. It is under these circumstances that Mr. Pathak moved the Registrar for refund of court fees paid by him on his memo of appeal. The Registrar took the view that under s. 13 of the Court-Fees Act, refund could be granted only if the Court of appeal remands a case under O. XLI, r. 23 of the Civil Procedure Code. Since according to the Registrar the present order of remand was not made under O. XLI, r. 23, the appellant was not entitled to a refund of Court fees. It is this decision which Mr. Pathak seeks to challenge before us.
Mr. Pathak contends that the order of remand passed by this Court in appeal No. 212 of 1949 can really be referred to the provisions of O. XLI, r. 23. Mr. Pathak invites our attention to the fact that he had succeeded on all the issues except one and he suggests that in substance his claim for possession failed on one point only and therefore the decision with regard to that claim should be deemed to have been based on a preliminary issue. We are not prepared to accept this argument. In our opinion, it is clear that the suit was tried on the merits. Several issues were framed, evidence was led by parties on all the issues and the learned Judge decided all these issues. In appeal the question of jurisdiction alone was enough to dispose of the appeal and having held that the trial Court had no jurisdiction to try the suit, an order of remand became inevitable. This order of remand is clearly referable to the inherent jurisdiction of this Court under s. 151 of the Code. It is obviously not one under O. XLI, r. 25 and it cannot be said to have been made under O. XLI, r. 23 either. Therefore, in our opinion, the Registrar was right in holding that O. XLI, r. 23 did not apply to this order of remand.
The next question is whether even if an order of remand is made under the inherent jurisdiction of the Court, refund of court fees could be granted, if not under s. 13 of the Court-Fees Act, under the same inherent jurisdiction of this Court under s. 151 of the Code of Civil Procedure. It is quite true that since the provisions of the Court-Fees Act are in the nature of a taxing statute, they must be liberally construed in favour of the litigant. Even so, however liberally the provisions of s. 13 are construed, it seems to us impossible to hold that the terms of s. 13 can be applied to any order of remand which is not made under O. XLI, r. 23. The Legislature was aware that an order of remand can be made under O. XLI, r. 23 as well as under s. 151 in a proper case and yet in providing for refund of court fees, the Legislature has confined this benefit only to orders of remand passed under s. 562 of the old Code which corresponds to O. XLI, r. 23 of the new Code. Therefore, prima facie it would be difficult to extend the scope of this rule under the purported exercise of inherent jurisdiction of this Court under s. 151. The question as to whether a civil Court can exercise this inherent jurisdiction in granting refund of court fees has often been considered in judicial decisions and though there is some divergence in the opinions expressed in these judicial decisions, the view of this Court has consistently been that a civil Court can exercise its inherent jurisdiction in granting a refund of court fees only where it is satisfied that excess court fees has been paid by the litigant through ignorance, oversight or inadvertence. In Karfule Ltd. v. Varghese,(4) the learned Chief Justice and myself had to consider a similar question and we have held that there is no jurisdiction in the Court to grant a refund of court fees to a party when the court fees paid had to be paid by the party under the Court-Fees Act. In other words, if a party pays proper court fees required by the Court-Fees Act, he would be entitled to a refund of the said court fees only if his case falls within the provisions of the Court-Fees Act. Civil Courts cannot extend these provisions by purporting to exercise their inherent jurisdiction. On the other hand, if it is found that through oversight, mistake or inadvertence a party pays more court fees than he would be required to pay under the Court-Fees Act, civil Courts may exercise their inherent jurisdiction and refund to the party that much which he was not bound to pay. This is the only field in which inherent jurisdiction can be exercised in respect of refund of court fees. Therefore, in our opinion, since it cannot be said that the appellant paid any excess court fee on his memo of appeal, the fact that his appeal was not disposed of on the merits and an order of remand was made pursuant to a decision of this Court on the question of jurisdiction would not in our opinion justify his claim for a refund of court fees. In this connection, we may refer to two unreported decisions of this Court in which the same view has been taken viz. Navroji Behramji v. Dinshaw Cowasji,(5) and Trikamji Kanji and Co. v. Sukharam Dala Patil.(6)
We must, therefore, hold that the Registrar was right in rejecting the appellant's claim for refund. There would be no order as to costs in the present proceedings before us.
Application rejected.
K.B.S