Bombay High Court
Bki Anope, Widow Of Narsi Gokaldas vs Mulchand Girdhar on 17 February, 1885
Equivalent citations: (1885)ILR 9BOM355
JUDGMENT Charles Sargent, C.J.
1. The Subordinate Judge has rejected the plaint on two somewhat inconsistent grounds. First, that it was improperly stamped, because it was not a simple declaratory suit but prayed for other relief; and, secondly, because, regarded as a declaratory suit, it was precluded by Section 42 of the Specific Relief Act (I of 1877). As to the first of these grounds the Sub. ordinate Judge's decision as to the stamp is, on the decisions of this High Court, binding on us-Narayani Madhavraoo Neik v. The Collector of Thana I.L.R. 2 Bom. 145 and Manohar Ganesh v. Bawa Ramcharandas I.L.R. 2 Bom. 219; but reading Section 54 of the Civil Procedure Code (XIV of 1882) with Section 12 of the Court fees Act, 1870, he was not, we think, justified in rejecting the plaint without giving the plaintiff an opportunity of affixing the proper stamp, which appears not to have been done.
2. As to the second ground, the Subordinate Judge 'was right in holding that the plaint (which, in our opinion, was clearly only a declaratory suit) was inadmissible under Section 42 of the Specific Relief Act, as the plaintiff could have prayed for an account against the defendant, of all moneys received by him under the certificate, and for payment to her of all moneys not properly accounted for.
3. We have, however, been asked to allow the plaint to be amended by adding a prayer for the above relief, and we think we shall be acting in conformity with the principle laid down in the cases referred to in Vasudev Shripat v. Jooma Abaji Printed Judgments for 1883, p. 98 in complying with that request. We must, therefore, reverse the decree of the Court below, and remand the case, with liberty to the plaintiff to amend her plaint within ones month from to-day, by praying for an account as against defendant. In default of her so doing, the plaint to stand dismissed. In the event of her amending the plaint as aforesaid, the Subordinate Judge will, as regards the question of stamp, deal with the plaint in its amended form, and try the case de novo. Costs to follow the result.