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Judgment
P.N. Mookerjee, J.—This Rule was obtained by the Petitioner against an order of the learned trial Judge refusing its prayer for refund of court-fees under the following circumstances:
For the same relief, the Petitioner had to institute two parallel proceedings in view of uncertainty in the legal position. One was a suit and the other was a petition of cross-claim or counter-claim in a pending suit. The relief claimed in both the proceedings was the same. On the plaint in the suit, full and proper court-fees had been paid. On the petition for counter-claim, the Petitioner applied for being exempted from payment of court-fee in view of the fact that, for tire same relief, a suit was pending. It also prayed that in any event the suit should be transferred to the Court where the counterclaim was pending and treated as petition for counter-claim in the pending suit there. That prayer was refused by the learned trial Judge. Thereafter, the matter had come up to this Court and leave was given to the Petitioner to make an appropriate application before "the trial Court for the relief in question, the Petitioner went back to the trial Court with a prayer for transfer of the suit and for treating the plaint therein as a petition for counter-claim in the other pending suit. This prayer was allowed with the result that the Petitioner''s independent application for counter-claim became unnecessary. On the said petition, however, full court-fees had been paid, namely, the same as on the plaint in the relative independent suit, which was later transferred, as aforesaid, and converted into a petition for counter-claim under an order of the Court, that being so, that was a payment under compulsion and the Petitioner had to do it in order to safeguard his petition.
In the above circumstances, it appears to us that for ends of justice the Petitioner should be entitled to refund of court-fees, as prayed for by it, in the exercise of inherent powers of the Court, which obviously exists and applies in these matters under the settled law on the point. Vide in this connection, Eagle Plywood Industries Private Ltd. Vs. Amulya Gopal Majumdar and Others, . It is indeed settled law that the State should not enrich itself and make profit out of mistake or uncertainty of law, vide J.C. Galstaun v. Raja Janaki Nath Roy and Ors. (1938) 38 C.W.N. 185 overruled on another trial by the above Full Bench decision. The learned Junior Government Advocate does not really contest the above position.
In this above view, we would make this Rule absolute, set aside the order of the learned trial Judge and direct that he should issue in favour of the Petitioner a certificate for refund of the value of the court-fees in question.
There will be no order for costs in this Rule.
Amiya K. Mookerji, J.
I agree.