Discuss the powers for takingdecision on the question of valuation written updates
Discuss the powers for takingdecision on the question of valuation
Refund of court fee
Q. Discuss the powers for taking decisionon the question of valuation and the scope of refund of court-fee paid in excess by the plaintiff or an appellant.(1997)(1996)
1. Introduction:
Section 13 14 and 15 of court-fee act talks about the refund of court fee the party and the principle behind these sections is that the govt. should not profit by the mistake of a litigant or of court as to the amount of court fees payableunder the act and in case of such mistakes the court should order refund for meeting ends of justice.
2. Relevant provisions:
Following are the relevant provisions of court fees act 1870 regarding the concerned topis section 13 14 and 15 of C.F.A 1870
3. Refund of fee paid on memorandum of appeal u/sec 13:
I. Authority empowered to refund court fee:
Only the appellate court is empowered to refund the court fee u/sec13.
II. Condition for refund of court fee:
Following are the conditions for refund of court fee by the court.
(i) Applicability of court fees act 1870
(ii) Where there is an excess payment by mistake of party
(iii) Where there is an excess payment by mistake of the court.
III. Grounds for refund of court fee:
(i) Rejection of plaint or appeal by the lower court:
Where plaint or appeal was rejected by the lower court on any of the grounds contained in C/P.C 1908 and that plaintor appeal was ordered to be received by the appellate court than court may order the refund of court fee payable on the memorandum of appeal against such rejection
(ii) Suit is remanded on appeal:
When appeal is accepted and case is remanded on any of the grounds mentioned in rule 23 order XLI C.P.C for a second decision by the lower court then the court may order the refund of court fee paid by the party on filing an appeal against such case.
IV. Procedure for refund of court fee:
(i) Application in the appellate court:
A party who files an appeal in the appellate court has to file an application for the refund of the court fee paid on that appeal.
(ii) Duty of the court:
In an application for refund it is the duty of the court to consider whether the memorandum of appeal was or was not properly stamped.
(iii) Time for making application:
An application for refund of court fee should be made within a reasonable time after the disposal of the case. What is reasonable time is a question of fact and decided on the facts of each case.
(iv) Time for making application:
When the court is satisfied that the court fee by the appellant should be refunded to him it shall grant him a certificate authorizing him to receive back form the collector the amount of fee paid on the memorandum of appeal.
Q. Discuss the powers for taking decisionon the question of valuation and the scope of refund of court-fee paid in excess by the plaintiff or an appellant.(1997)(1996)
1. Introduction:
Section 13 14 and 15 of court-fee act talks about the refund of court fee the party and the principle behind these sections is that the govt. should not profit by the mistake of a litigant or of court as to the amount of court fees payableunder the act and in case of such mistakes the court should order refund for meeting ends of justice.
2. Relevant provisions:
Following are the relevant provisions of court fees act 1870 regarding the concerned topis section 13 14 and 15 of C.F.A 1870
3. Refund of fee paid on memorandum of appeal u/sec 13:
I. Authority empowered to refund court fee:
Only the appellate court is empowered to refund the court fee u/sec13.
II. Condition for refund of court fee:
Following are the conditions for refund of court fee by the court.
(i) Applicability of court fees act 1870
(ii) Where there is an excess payment by mistake of party
(iii) Where there is an excess payment by mistake of the court.
III. Grounds for refund of court fee:
(i) Rejection of plaint or appeal by the lower court:
Where plaint or appeal was rejected by the lower court on any of the grounds contained in C/P.C 1908 and that plaintor appeal was ordered to be received by the appellate court than court may order the refund of court fee payable on the memorandum of appeal against such rejection
(ii) Suit is remanded on appeal:
When appeal is accepted and case is remanded on any of the grounds mentioned in rule 23 order XLI C.P.C for a second decision by the lower court then the court may order the refund of court fee paid by the party on filing an appeal against such case.
IV. Procedure for refund of court fee:
(i) Application in the appellate court:
A party who files an appeal in the appellate court has to file an application for the refund of the court fee paid on that appeal.
(ii) Duty of the court:
In an application for refund it is the duty of the court to consider whether the memorandum of appeal was or was not properly stamped.
(iii) Time for making application:
An application for refund of court fee should be made within a reasonable time after the disposal of the case. What is reasonable time is a question of fact and decided on the facts of each case.
(iv) Time for making application:
When the court is satisfied that the court fee by the appellant should be refunded to him it shall grant him a certificate authorizing him to receive back form the collector the amount of fee paid on the memorandum of appeal.
V. Cases where court fee allowed to be refunded:
Following are the decided cases where the court fee are allowed to be refunded to the appellant.
(i) Appeal decided on point of law:
Appellant would be entitled refund of court fee paid on memorandum of appeal when appeal has been decided on point of law without determination of rights of parties.[NLR 1995 AC 586]
(ii) Withdrawal of appeal after admission:
The high court in its inherent jurisdiction can order refund of court fee on the withdrawal of appeal where the proceeding had not gone beyond the stage of admission [PLD 1976 Lahore 1268]
(iii) Withdrawal of appeal after compromise:
Appellant would be entitled to refund of court fee paid on memorandum of appeal after withdrawal of appeal on ground of compromise irrespective of the fact whether provisions of section 13 of court fee act 1870 were attracted or not. [2004 CLC 430]
(iv) Madatory provision:
When case falls u/sec 13 the court is bound to grant relief.
4. Refund of court fee on application forreview of judgment u/sec 14:
If an application for review of judgment is filed before the 90th bay form the date of the decree the appellant need only pay half the fee leviable on the plaint or memorandum of appeal under article 5schedule I but if an application for reviewis filed on the after the 90th day the appellant need to pay full court fee under article 4 schedule I of C.F.A But by virtue of sec 14 the court is empowered to refund the excessive half payable in the case when the application is presented after the 90th day.
I. Court which have authority to order refund of court fee:
The application for review lies to the same court which passed the original decree and it is the same court which has the power to order refund of excessive half amount of court fee.
II. Discretionary power:
The grant of certificate for refund of court fee is discretion with the court and discretion is only to be exercised where there is no laches on the part of the applicant
III. Procedure for refund of court fee:
(i) Application to the court:
An application has to be made for the refund of excessive amount of court fee.
(ii) Grant of certificate for refund:
The court may grant an applicant a certificate authorizing him to receive back form the collector the excessive half amount of court fee.
5. Refund of court fee where court reverses or modifies its former decisionon ground of mistake u/sec 15:
Where an application for review of judgment is admitted and on rehearing the court reverses or modifies its formerdecision on ground of mistake of fact of mistake in law the applicant shall be entitled to refund of so much of fee paid on the application as exceeds the feepayable on any other application to such under article I(b) or(d) of and schedule.
I. Essential conditions:
In order to attract the operation of sec 15 the following conditions are to be fulfilled:
(i) There should be an application forreview of judgment.
(ii) The application should have been admitted by the court.
(iii) That on rehearing the court should have reversed or modified its formerdecision.
(iv) The decision must have reversed or modified on the ground of mistake in law fact.
(v) That such reversal or modification is not due to fresh evidence which might have been produced at the original hearing.
Following are the decided cases where the court fee are allowed to be refunded to the appellant.
(i) Appeal decided on point of law:
Appellant would be entitled refund of court fee paid on memorandum of appeal when appeal has been decided on point of law without determination of rights of parties.[NLR 1995 AC 586]
(ii) Withdrawal of appeal after admission:
The high court in its inherent jurisdiction can order refund of court fee on the withdrawal of appeal where the proceeding had not gone beyond the stage of admission [PLD 1976 Lahore 1268]
(iii) Withdrawal of appeal after compromise:
Appellant would be entitled to refund of court fee paid on memorandum of appeal after withdrawal of appeal on ground of compromise irrespective of the fact whether provisions of section 13 of court fee act 1870 were attracted or not. [2004 CLC 430]
(iv) Madatory provision:
When case falls u/sec 13 the court is bound to grant relief.
4. Refund of court fee on application forreview of judgment u/sec 14:
If an application for review of judgment is filed before the 90th bay form the date of the decree the appellant need only pay half the fee leviable on the plaint or memorandum of appeal under article 5schedule I but if an application for reviewis filed on the after the 90th day the appellant need to pay full court fee under article 4 schedule I of C.F.A But by virtue of sec 14 the court is empowered to refund the excessive half payable in the case when the application is presented after the 90th day.
I. Court which have authority to order refund of court fee:
The application for review lies to the same court which passed the original decree and it is the same court which has the power to order refund of excessive half amount of court fee.
II. Discretionary power:
The grant of certificate for refund of court fee is discretion with the court and discretion is only to be exercised where there is no laches on the part of the applicant
III. Procedure for refund of court fee:
(i) Application to the court:
An application has to be made for the refund of excessive amount of court fee.
(ii) Grant of certificate for refund:
The court may grant an applicant a certificate authorizing him to receive back form the collector the excessive half amount of court fee.
5. Refund of court fee where court reverses or modifies its former decisionon ground of mistake u/sec 15:
Where an application for review of judgment is admitted and on rehearing the court reverses or modifies its formerdecision on ground of mistake of fact of mistake in law the applicant shall be entitled to refund of so much of fee paid on the application as exceeds the feepayable on any other application to such under article I(b) or(d) of and schedule.
I. Essential conditions:
In order to attract the operation of sec 15 the following conditions are to be fulfilled:
(i) There should be an application forreview of judgment.
(ii) The application should have been admitted by the court.
(iii) That on rehearing the court should have reversed or modified its formerdecision.
(iv) The decision must have reversed or modified on the ground of mistake in law fact.
(v) That such reversal or modification is not due to fresh evidence which might have been produced at the original hearing.
II. Grant of certificate for refund:
The court may grant the applicant a certificate authority him to receive back form the collector so much of fee which is in excess of other fees payable on applications under article I can clause (b) and (d) of second schedule.
III Mandatory provision:
Section 15 is a mandatory provision and where the conditions of section 15 are fulfilled the court is bound to grant relief by way of refund.
6. Provisions of sec 13 14 15 are not exhaustive:
Section 13 14 and 15 of C.F.C 1870 are not exhaustive on the question of the grounds for refund of court fee.
7. Inherent power of the court:
The court have inherent power to refund the court fee besides the provision of sec 13 14 and 15.
8. Discretionary power:
It is only discretionary with the court to issue refund certificate while exercisingits inherent jurisdiction.
9. Factors which may be considered inexercising jurisdiction:
Following factors may be considered by the court while exercising discretion in refund of court fee.
(i) The stage when the proceedings are culminated
(ii) The advantage which the party seeking refund gains.
10. Conclusion:
To conclude I can say that thought the C.P.C 1870 has its primary purpose of collecting revenue for the state but principle of collection revenue for the state but the principle of refund of court fee has also been accepted in the provisions of law and these are to be found in sec 13 14 and 15 of C.F.A as it was observed in the case Sh. Riaz-ud-Din vs Aqial-ur-Raham Siddique and others (PLD 1993 s.c 76)
The under article 2-a of the constitutionof Pakistan 1973 state is obliged of further the ends of sccial justice which-alia obligate it to ensure inexpensive and expeditions justice in terms of article 37(d) of the constitution so the law should not penalizes the party for approaching the court instead of assisting it to obtain unexpressive and speedy justice.”
The court may grant the applicant a certificate authority him to receive back form the collector so much of fee which is in excess of other fees payable on applications under article I can clause (b) and (d) of second schedule.
III Mandatory provision:
Section 15 is a mandatory provision and where the conditions of section 15 are fulfilled the court is bound to grant relief by way of refund.
6. Provisions of sec 13 14 15 are not exhaustive:
Section 13 14 and 15 of C.F.C 1870 are not exhaustive on the question of the grounds for refund of court fee.
7. Inherent power of the court:
The court have inherent power to refund the court fee besides the provision of sec 13 14 and 15.
8. Discretionary power:
It is only discretionary with the court to issue refund certificate while exercisingits inherent jurisdiction.
9. Factors which may be considered inexercising jurisdiction:
Following factors may be considered by the court while exercising discretion in refund of court fee.
(i) The stage when the proceedings are culminated
(ii) The advantage which the party seeking refund gains.
10. Conclusion:
To conclude I can say that thought the C.P.C 1870 has its primary purpose of collecting revenue for the state but principle of collection revenue for the state but the principle of refund of court fee has also been accepted in the provisions of law and these are to be found in sec 13 14 and 15 of C.F.A as it was observed in the case Sh. Riaz-ud-Din vs Aqial-ur-Raham Siddique and others (PLD 1993 s.c 76)
The under article 2-a of the constitutionof Pakistan 1973 state is obliged of further the ends of sccial justice which-alia obligate it to ensure inexpensive and expeditions justice in terms of article 37(d) of the constitution so the law should not penalizes the party for approaching the court instead of assisting it to obtain unexpressive and speedy justice.”
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