Patna High Court
Chahato Kuer And Ors. vs Deoshakhi Kuer And Ors. on 8 November, 1966
Equivalent citations: AIR1967PAT310, AIR 1967 PATNA 310
ORDER Untwalia, J.
1. Title suit 84/20 of 1954 /56 was originally filed by four plaintiffs claiming to be the daughters of one Beyadar Singh. The suit was for declaration of title and recovery of possession in respect of the properties of Beyadar Singh. One of the plaintiffs died during the pendency of the suit in the trial court. And, without mentioning any other detail of the intervening facts, it will suffice to say that the suit was continued by the three remaining plaintiffs. During the pendency of the first appeal in the High Court, plaintiff No. 2 died, and her son Baidya Nath Singh, opposite party No. 3, and her husband Ramparvesh Singh, opposite party No. 2, before me, were substituted in the appeal. The appeal was allowed, the judgment and the decree of the trial court were set aside and the case was remanded for a fresh decision. After remand, defendants 5 to 10 who are petitioners before me filed an application in the court below praying to direct the plaintiffs to pay ad valorem Court-fee on the valuation of the plaint before the suit could be heard on merits.
The learned Additional Subordinate Judge rejected this prayer made on behalf of the petitioners. They came up in revision to the Court in Civil Revision 222 of 1963. It was heard and decided by me on the 4th of February, 1964. I held in that case that on the death of plaintiff No. 2 her legal representatives could continue the suit either on payment of the requisite court-fee or on permission being granted to them to continue the suit in forma pauperis. They could not, so to say, inherit the permission or the right of their predecessor in interest to continue the suit in forma pauperis. In the view I took, I set aside the order of the learned Additional Subordinate Judge, remitted the case back to him and directed him to do any of the following three things-
"(i) to ask the substituted plaintiffs (opposite party Nos. 2 and 3) to pay the requisite court-fee in the suit, or, (ii) to ask them to file an application for permission to continue the suit in forma pauperis or (iii) to transpose them to the category of the defendants, if they or the surviving plaintiffs so desire."
2. After the remand by me of the case to the court below petition was filed on 11-4-64 on behalf of the plaintiffs including the substituted plaintiffs for amendment of the plaint. They prayed for mentioning in paragraph 11 of the plaint that plaintiff no. 1 has one-third share, plaintiffs 2 and 2(a) have one-third share and plaintiff no. 3 has one-third share in the suit property. No grievance was made before me nor possibly could any be made against the order allowing the amendment. The learned Additional Subordinate Judge, in view of the amendment of the plaint, is of the opinion that each set of the plaintiffs is required to pay court-fees on its share of the value of the suit property. Since plaintiffs 1 and 3 were granted permission to sue in forma pauperis, they are not required to pay any court-fee on their two-third share of the property. But the substituted plaintiffs 2 and 2(a) are required to pay ad valorem court-fee only on the value of one-third share of the suit property. In the view he has taken, he has directed them to pay their quota of the court-fee. Defendants 5 to 10 have again come up in revision to this Court.
3. A preliminiary objection was raised on behalf of opposite parties 1 to 4 that since the matter involved is purely a matter of court-fee, the defendants have no locus standi, in view of the Full Bench decision of this Court in Ramkhelawan Sahu v. Bir Surendra Sahi, ILR 16 Pat. 766 : (AIR 1938 Pat. 22) (FB) and the recent decision of the Supreme Court in Shri Rathnavar Maraje v. Vimla, AIR 1961 S.C. 1299 to come up in revision to this Court and ask it to interefere with an order in which the matter of court-fee purely is involved. The preliminary objection, as presented, has force. But the view taken by the court below seems to be so revolutionary on principle that I am inclined to act in this case suo motu, even accepting the preliminary objection raised on behalf of the opposite parties as valid, I may also add that on the facts and in the circumstances of this case, it is not purely a matter of court fee; it is inter-connected and interwoven with the matter of pauperism also in view of my decision in Civil Revision 222 of 1963 referred to above. It is a well settled view and practice of this court to entertain civil revisions at the instance of defendants against the order of the courts below granting permission to plaintiffs to sue in forma pauperis. To me it appears, the question before me is not completely divorced from the matter of pauperism involved in the case. And, in that view of the matter also, I have thought it fit to entertain and allow this application, even though the impugned order has been brought to the notice of this Court at the instance of some of the defendants.
4. I do not think the learned Additional Subordinate Judge has gone, either in spirit or in letter, against the directions given by me in my judgment dated 4th of February, 1964 in the earlier civil revision. In view of thp amendment of the plaint, the substituted plain tiffs could be asked to pay the requisite court-fee--requisite in the sense understood by the court below if otherwise its view could be upheld by me.
5. But the difficulty in regard to the main question is that the plaint, as presented or of the suit as proceeding on the basis of the plaint in spite of the substitution of the heirs of the deceased plaintiff and the amendment, is one document. At whatever stage court-fee is required to be paid, it has to be paid on the full amount of the value of the entire property in the suit. On principle, a deviation of the kind made by the Court-below is not permissible. That will lead to anomalous and astounding results. Suppose A and B file a suit for declaration of title and recovery of possession in respect of a house valued, say, at Rs. 20,000/-, reciting in the original plaint that both the plaintiffs have got half share each. Can they be permitted to pay their respective quota of the court fee? Can A say--I am prepared to pay either my half quota of the court-fee payable on the sum of Rupee 10,000 or half the amount of court-fee payable on the total sum of Rs. 20,000/- and the other half B should pay"? A, suppose, pays his half quota; B does not, can the court reject the plaint of B and proceed to try the suit of A on such a plaint? The answers to all these questions posed by me must be given in the, negative. On principle, such a deviation in the matter of court-fee is very repulsive either from the technical point of view or even from the practical point of view.
6. That being so, the mere fact that all the three plaintiffs were proceeding with the suit after having obtained permission to sue in forma pauperis and now one set of plaintiffs--the substituted ones--are not paupers and, therefore, the court fee has got to be; paid on the plaint will not make any difference on the application of the principle just' discussed by me. These matters cannot be decided from the point of view of hardship. Suppose the substituted plaintiffs, when required to pay the whole of the court-fee, do not pay, the whole of the plaint will have to be rejected, and obviously, that will cause hardship, as was pointed out by Mr. Sarwar All appearing for the opposite parties, to the other two plaintiffs who are still continuing the suit in forma pauperis. But hardship in the matter of court-fee will not determine the principle of law.
7. The view I have expressed above finds support from a Bench decision of the Calcutta High Court in Lakshi Kanto Ghosh v. Surendra Nath Ghosh AIR 1954 Cal 483. The facts of the Calcutta case were similar to those of the present case though not quite identical. It was held in that case if two persons file a joint application for leave to sue as paupers and one of them is held to be pauper and the other not, and if the latter wants to proceed with the suit, he must pay the entire court-fee payable on the plaint.
8. In the result, I allow the application and set aside the order of the learned Additional Subordinate Judge permitting the substituted plaintiffs 2 and 2(a) to pay the requisite court-fee on the value of their one-third share of the suit property. In law they must pay the full amount of court-fee on the value of the entire suit property. It will be open to the two substituted plaintiffs to pay the deficit amount of court-fee that is to say, for the balance of the two-thirds share and then the suit will proceed to disposal in accordance with law. If they choose not to pay the entire amount of court-fee, it will be open to them or to the other two plaintiffs, namely, Nos. 1 and 3 to make a prayer to the court below for granting them permission to withdraw from this suit and to withdraw their claim in respect of their share in the properly with liberty to institute a fresh suit in respect of that share. If and when such a prayer is made in the court below, it will be open to that court to grant or not to grant the required permission. In this connection specific mention should be made here of the provision of law contained in Rule 2 of Order 23 of the Code of Civil Procedure There will be no order as to cost.