Sayed Mohammed Rafey vs Mumtaz Ahmad And Ors
2010 Latest Caselaw 3403 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI


+    FAO(OS) 343/2010 & CM 9014/2010 (exemption)


     SAYED MOHAMMED RAFEY                 ..... Appellant
                  Through Mr Deo Prakash Sharma and
                          Mr Umesh Gupta, Advocates
             versus
     MUMTAZ AHMAD AND ORS        .... Respondent
                  Through

      CORAM:
      HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MS. JUSTICE MUKTA GUPTA

     1. Whether reporters of local papers may be
        allowed to see the Order?                Yes
     2. To be referred to the Reporter or not?   Yes
     3. Whether the Order should be reported
        in the Digest?                           Yes

                       ORDER

20.7.2010

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. & 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:-

"16. 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 authorising 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 favourably 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 Nazir Ahmad -

vs- King Emperor, AIR 1936 PC 253. Relying on the same the

Apex Court in Mohinder Singh Gill and Another vs. The Chief

Election Commissioner, AIR 1978 SC 851, 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 Vs. Taylor which was followed by Lord Roche in Nazir Ahmad Vs. 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.

VIKRAMAJIT SEN, J.

MUKTA GUPTA, J.

July 20,2010 nt