Sayed Mohammed Rafey vs Mumtaz Ahmad and Others

This Appeal assails the Order of the Learned Single Judge dated 13.4.2010, whereby the prayer to refund the Court Fee paid on the Plaint was rejected. Learned Counsel for the Appellant/Plaintiff has relied on the decision of the Learned Single Judge of this Court in 2009 (113) DRJ 612, titled J.K. Forgings -vs- Essar Construction India Ltd. and Ors., in which such an Order of refund had been made. In the impugned Judgment, however, another Learned Single Judge has distinguished the said precedent on the grounds that, unlike in the previous case, the Defendant in the present case had not even entered appearance before the Court.

The power to refund Court Fee is contained in Section 16 of the Court Fee Act, 1870 which reads as follows:

Refund of fee- Where the Court refers the parties to the suit to any one of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 (5 of 1908), the Plaintiff shall be entitled to a certificate from the Court authorizing him to receive back from the Collector, the full amount of the fee paid in respect of such plaint.

A perusal of Section 89 of the Code of Civil Procedure, 1908, will make it indubitably clear that it is the Court which must refer the parties for settlement under that Section. This has avowedly not happened in the case before us. In fact, indubitably it had not happened even in J.K. Forgings either. For a party to be entitled to refund Court Fee it must fall within the circumstances envisaged by a statutory provision. However favorably the Court may want to ameliorate the plight of a litigant who has paid Court Fee, if a statutory provision specifically prohibits or does not permit such relief the Court is not empowered in granting the relief. In this regard, we immediately recall the celebrated decision in AIR 1936 253 (Privy Council) . Relying on the same the Apex Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , observed as follows:

It is the basic principles of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor.

In these circumstances, we are of the opinion that the impugned Order is correct and beyond challenge. We must also clarify that J.K. Forgings does not set down the correct law.

Appeal is dismissed. CM 9014/2010 also stand dismissed accordingly.