Patna High Court
Tulsi Ram vs Keshri Prasad And Ors. on 5 September, 1961
Equivalent citations: AIR 1962 PATNA 189
JUDGMENT Anant Singh, J.
1. This application in revision is directed against an order of the Subordinate Judge II, Arrah dated the 19th November, 1959, whereby he has, after the preliminary decree in a suit for partition, disallowed the claim of the plaintiff-petitioner for past profits for three years preceding the date of the suit on the ground that the petitioner had not paid the ad valorem court-fee thereon. The relevant portion of the order is to the following effect:
"He (referring to the petitioner) has, of course valued the past profits at Rs. 100 in paragraph 10 of his plaint, but he has not paid the ad valorem court-fee and hence he has forfeited his claim in that respect, and no relief for past profits can be granted to him."
2. It would appear that the plaintiff who is a minor, through his sister, had filed a partition suit, No. 35 of 1956, for partition of his one-third share in the property of the family. The allegations in the plaint were that the different branches of the family were possessing land separately, but the defendants first party had usurped also the land and the income thereof, which were in the plaintiff's share. The plaintiff, accordingly, sued for partition. Apart from the prayer for partition, there was a further prayer for rendition of accounts of the income for three years preceding the date of the suit in respect of the income of the property alleged to have been usurped by the defendants first party. The suit was decreed ex parte declaring that the plaintiff was entitled to get one-third share in the properties and accordingly, a preliminary decree was passed, but there was no mention either in the order or in the preliminary decree regarding the plaintiff's claim for rendition of accounts.
3. After the preliminary decree, there was a pleader commissioner appointed for effecting partition. The plaintiff filed a petition on the 5th June 1958, for directing the defendants 1st party, to file an inventory" of the properties with accounts before the pleader commissioner. But this petition was rejected, as this was not within the scope of the work of the pleader commissioner. On the 9th June 1938, again the plaintiff filed another petition before the court for giving a direction to the defendants to file an inventory and render accounts before the pleader commissioner. The plaintiff was directed to file a separate petition as the one filed on the 9th June 1958, contained more than one prayer. The plaintiff, thereafter, filed another petition on the 12th June 1958 making the same prayer that the defendants should file an inventory and render accounts before the pleader commissioner. The court passed an order directing the defendants to do so. Again, on the 10th December 1958, there was a similar direction given by the court to the defendants to file an inventory and render accounts before the pleader commissioner. The defendants' lawyer, thereafter assured the court that the defendants would file an inventory with accounts before the pleader commissioner by the 3rd January 1959; but it seems, the defendants never filed any inventory or accounts of any property before the pleader commissioner. The commissioner submitted his report on the 3rd February 1959, stating that the defendants did not file any inventory and accounts in spite of the court's order dated the 12th June, 1958, and the 10th December 1958, and the commissioner's own requests. Some objections were filed by the parties to the commissioner's report & after hearing the objections, the report of the commissioner regarding allotment of properties to the different parties was confirmed on the 7th July 1959 and an order was made for preparing the final decree on the plaintiffs filing necessary stamps for the purpose.
4. Again, On the 1st October 1959, the plaintiff tiled another petition before the court to direct the pleader commissioner to submit his report regarding the accounts of the income of the properties for the past three years as well. This petition was disposed of by the learned Subordinate Judge by the order under revision. By this order, the learned Subordinate Judge has held that the plaintiffs is entitled to get his share of profits from the date of the institution of the suit, but he has as mentioned above disallowed the claim for past profits, not because the plaintiff was not held entitled to get past profits, but because, in the opinion of the learned Subordinate Judge, necessary court-fee for the same had not been paid by the plaintiff.
5. It appears that the plaintiff has valued the past profits at Rs. 100, but had not paid any court-fee thereon. He had, however, paid the necessary court-fee on the plaint regarding his claim for partition. At no stage, either during the pendency of the suit or during the proceeding started for the preparation of the final decree, any court-fee payable for past profits was demanded by the court and, therefore, it is contended on behalf of the petitioner that, in view of the provisions of Order 7, Rule 11, the court was not entitled to have disallowed the plaintiff's claim for past profits without having called upon the plaintiff-petitioner to pay the deficit court-fee.
(b) Order 7, Rule 11 enumerates the grounds on which a plaint shall be rejected. One of the grounds as mentioned in Clause (c) is to the following effect:
"Where the relief claimed is properly valued but the plaint is written upon paper, insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;"
7. It is manifest from the provision of Rule 11(c) that in case the plaint is written upon an insufficiently stamped paper, the Court has an obligation cast upon it to call upon the plaintiff to supply the requisite stamp paper within a given time. In the instant case the plaintiff was never called upon to make up the deficit court-fee on his relief for past profits. It is, however, contended by learned counsel, Mrs. Leila Seth, appearing for the opposite party that the relief for past profits was independent of the relief for partition. No court-fee at all was paid on the relief for past profits, and, therefore, the Court was not in duty bound to have called upon the plaintiff to pay court-fee on the relief for past profits. This would mean that no court-fee having been paid on the relief for past profits, the plaint in that regard could be dismissed in part but a plaint cannot be rejected ill part. The case reported in Raghubans Puri v. Jyotis Swarupa, ILR 29 All 325 and also the case of Bansi Lal v. Som Parkash, AIR 1952 Punj 38 are some of the the authorities on the point The Allahabad case was decided on the basis of the old Section 54 of the Civil Procedure Code, but the provision is exactly similar to that in Order 7, Rule 11. The contention of Mrs. Seth, however, is that when there are two separate reliefs in one plaint subject to payment of separate court-fees and when court-fee has been paid on one only and nothing has been paid on the other, such a plaint could not be treated as having been written upon a paper insufficiently stamped within the meaning of Order 7, Rule 11(c) of the Civil Procedure Code so as to cast an obligation upon the Court to call upon the plaintiff to pay the deficit court-fee by a given date. The contention of Mrs. Seth does not appear to be sound. If a plaint contains two or more independent reliefs on which court-fee is payable separately and when court-fee is paid on only one of them, the plaint as a whole will be deemed to have been written and filed upon paper insufficiently stamped within the meaning of the provisions of Order 7. Rule 11(c) of the Civil Procedure Code and the Court is bound to grant some time to the plaintiff to pay the deficit court-fee. The Court in such a case has no authority to reject the plaint with respect to any relief on which no court-Fee has been paid along with the plaint. It is only after affording an opportunity to the plaintiff to make good the deficit by a given time that the Court can disallow a relief, if the necessary court-fee is not paid by the given date.
The plaint bore adequate court-fee on the relief for partition; but none for the relief for past Profits, which had been valued tentatively at Rs. 100. In such a circumstance, the Court should have called upon the plaintiff to pay the deficit court-fee by any given date, But never was any court-fee demanded by the court from the plaintiff in respect of the relief for post profits. The Court was, therefore in the wrong to have disllowed the plaintiff's claim for past profits, if he was otherwise entitled to it only because he had not initially paid any court-fee on it. The plaintiff should have been afforded an opportunity to pay the requisite court-fee and, if by any given date, the deficit court-fee had not been paid, it was then open to the Court to have disallowed the claim in that regard.
8. The most important question for consideration, however, is whether at all the plaintiff was given a decree entitling him to a claim for rendition of accounts in respect of past profits. The preliminary decree gave no such relief to the plaintiff whatsoever. That decree was only for partition of the plaintiff's share, although there was a relief asked for in the plaint for rendition of accounts as well. Now, when the relief for past profits was not specifically allowed in the preliminary decree, it will be deemed that the claim on that account was dismissed. It is, however, true that after the passing of the preliminary decree and during the pendency of the proceeding for preparation of the final decree, the plaintiff filed more than one petition calling upon the defendants to render accounts and the Court also directed on more than one occasion calling upon the defendants to file an inventory and render accounts. But the defendants rendered no such accounts at any time. The learned Subordinate Judge in the order under revision on the authority of a Full Bench decision of the Madras High Court in Basavayya v. Guravayya AIR 1951 Mad 938 (FB), as also on the authorities of the decisions in S. Krishnama v. N. Latchumanaidu, AIR 1958 Andh Pra 520 and Ram Narain Prasad San v. Ramji Prasad Sah, AIR 1956 Pat 244, has held that although the preliminary decree is silent about the future profits in the suit for partition the Court is quite competent to allow such future profits and accordingly he has allowed the same to the plain-tiff. His order, however, is not quite clear, if he held the plaintiff entitled also to past profits for the period before the filing of the suit, although by implication it can be so inferred for he has disallowed the claim for past profits only for nonpayment of court-fee and for no other reason. But none of the decisions relied upon by him related to past profits. All the aforesaid cases related to future profits from the date of the filing of the suit. In AIR 1956 Pat 244 three different types of cases in which the question of profits or mesne profits might arise, have been specifically dealt with. One was of a suit for ejectment and recovery of possession, the second was of a suit for partition by one or more of the tenants in common and the third was of a suit for partition by a particular member of a joint Hindu family with a claim for accounts from the manager. Their Lordships have laid down the following proposition of law:
''In the first case, the possession of the defendant not being lawful, the plaintiff is entitled to recover 'mesne profits' as defined, in Section 2, Clause (12), Civil P. C., such profits being really in the nature of damages. In the second case, the possession and receipt of profits by the defendant not being wrongful the plaintiff's remedy is to have an account of such profits making all just allowances in favour of the collecting tenant in common lathe third case the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts Or claim relief on the ground of past inequality of enjoyment of the profits except where the manager has been guilty of fraudulent conduct, Or misappropriation. The plaintiff would however be in the position of a tenant in common from the date of severence in status and his right would have to be worked out on that basis".
Neither this case, nor do the other cases referred to above lay down any proposition that in a suit for partition even by a tenant in common, he can ask for rendition of accounts for any period prior to the date of the suit. It is different matter that he might ask for partition of assets, movable am immovable, available on the date of the suit, but neither a tenant in common can, nor can a member of a joint Hindu family ask for rendition of accounts or profits for any period prior to the date of the suit in respect of any property. In the instant case, it would appear that the plaintiff was holding the lands separately from the defendants. He had asked for rendition of accounts also for the past three years on the alleged ground that the defendants had usurped his share of income or.
property; but for that, his remedy was otherwise. In view of the fact that the preliminary decree was silent about the plaintiffs share of past profits, he cannot legitimately claim the same in this proceeding. He is of course entitled to his share of future profits which, however, he has been allowed by the Court below. The plaintiff in these circumstances can make no just grievance. The order of the learned Subordinate Judge rejecting the plaintiff-petitioner's claim for past profits, in sub stance, is right, though not for the reasons given by him. I need not, therefore, interfere with it in revision when justice has been done. The application is rejected. In the special circumstances of the case, the parties will bear their own costs of this application.