Patna High Court
Sri Sri Mahabirji Of Asthal Saifganj ... vs Mt. Saraswati Devi on 13 July, 1960
Equivalent citations: AIR1960PAT527, AIR 1960 PATNA 527
JUDGMENT Misra, J.
1. This appeal by the plaintiff arises out of a suit for declaration of title and recovery of possession over a portion of land containing a house and the machinery of a mill.
2. The relevant facts for the purpose of this appeal are that the plaintiff alleged that the property was purchased on the 24th December, 19231 by one Kedarnath who duly came into possession. On the 27th March, 1944, Kedarnath made an endowment of the property in favour of the plaintiff Sri Mahabirji of Asthal Saifganj. Kedarnath acted as shebait of the deity during his life time. He died, however, in 1950, when the present shebait, Sheo Bhagwan Marwari succeeded him in the office. On the 27th July, 1951, the defendant, Mt. Saras-
wati Devi, executed a ladavi deed stating that she had no interest in the property. In spite of that document, however, she took forcible possession of a portion of the land only 2 1/2 months prior to the institution of the suit alleging that this property was a joint property of Kedarnath and her father, Amarchand. In fact, however, the property belonged to Kedarnath with which Amarchand had no concern. The plaintiff also pleaded that in any view Kedarnath continued in possession of the property since 1923 and had acquired title to it by adverse possession, and, as such, he had t right to make an endowment in 1944 in favour of the plaintiff.
3. The defendant pleaded, however, that the property in suit belonged to her father Amarchand, and that she had been married in the district of Rangpur. Her father, however died in the year 1940 or 1941. Kedarnath was a mere servant of her father and was looking after the management of the property. He continued to be the manager of the property even after the death of her father Amarchand inasmuch as the defendant and her husband resided at Saidpur in the District or Rangpur, which was her husband's place, but after the creation of Pakistan in 1947, the defendant permanently migrated to Katihar with her entire family and had since been residing on the premises in suit. Sheo Bhagwan Agarwala the so-called shebait, however, unlawfully dispossessed her of the premises and assaulted her for which 3 criminal case was duly filed. The defendant, however, resisted him successfully. Accordingly, Sheo Bhagwan took recourse to the device of bringing the present suit setting up a fictitious endowment of the property in favour of Sri Mahabirji.
The ladavinama alleged to have been executed by her also was a forged document inasmuch as Sheo Bhagwan Agarwala managed to obtain her thumb marks on Hank papers and took her and her husband to the registration office on false pretext where he managed to get the document registered. The alleged possession and dispossession set up on behalf of the plaintiff was also challenged as false and baseless. Among other pleas, the defendant also challenged the valuation of the suit and the court-fee paid thereon by the plaintiff.
4. The learned Additional Subordinate Judge, Purnea, who tried the suit, framed a number of issues one of which was: "Has the plaintiff under-valued the suit and is the court-fee paid sufficient?" It may be stated that he decided all the substantial issues in favour of the defendant and dismissed the suit. On the question of valuation also he found that the suit valued at Rs. 5,105/-wag inadequate, and he found that in any view the value of the property would come to Rs. 41,000/- besides Rs. 95/- as the value out by the plaintiff for mesne profit and injunction, making a total of Rs. 41,095/-. He demanded accordingly court-fee to be paid on that amount. He allowed a period' of one month from the date of the decree to the plaintiff to deposit the amount failing which steps would have to be taken for the recovery of the amount from him. The plaintiff has come up in appeal to this court against the judgment, and decree of the learned Additional Subordinate Judge.
5. The appeal was filed originally with a petition for permission to prosecute it in, forma pauperis. The application was, however, rejected by this court on the 12th July, 1955, and the appellant was given four months' time to pay the requisite court-fee on the memorandum of appeal according to the valuation put by him. The Stamp Reporter, however, pointed out on the 21st July, 1955, that a sum of Rs. 4,156-14-0 would be the proper amount of court-fee payable on the memorandum of appeal. On the 21st October, 1955, learned Counsel for the appellant sought permission to delete the grounds relating to the merits of the decision of the court below and preferred to confine it only to the order relating to court-fee.
The matter was listed for hearing before a single judge of this court, and tbe learned Judge was pleased to refer it to a Division Bench on the 4th March 1959. An application, however, was filed later on on behalf of the appellant that he might be permitted to add grounds relating to the merits of the appeal itself. The application was put up duly and was disposed of on the 17th November 1959, by order No. 28. It is not necessary to set out here the grounds on which the application was rejected. After hearing the arguments on the point the Division Bench of this court came to the conclusion that the present case was not a fit one in which the prayer for additional grounds touching the merits of the case should be allowed.
6. When the appeal had been taken up for hearing, learned Counsel for the appellant faintly argued that the decision of the points relating to the merits would also be substantially affected by the decision of the question of court-fee. Since, however, it was open to him only to raise an argument with regard to the correctness of the order passed by the court below on the court-fee matter, he confined his argument to this aspect of the question. He has urged in the first place that the court below had no jurisdiction to incorporate in the decree an Order relating to the amount of court-fee payable by the plaintiff fixing a time for the payment thereof and imposing the penalty of dismissal of the suit in case the deficit court-fee was not paid by the appellant.
He referred in this connection to Order 7 Rule 11 of the Code of Civil Procedure as also to Sections 6 and 10 of the Court-fees Act. His argument is that the question of proper amount of court-fee payable had to be dealt with by the learned Additional Subordinate Judge as a preliminary issue, and he should have come to a conclusion on that matter. If he felt that the plaint was not sufficiently stamped, it was open to rum to assess the amount and call upon the plaintiff to deposit the same within the time allowed, and in the event of his failure to do so, the plaint should have been rejected.
This procedure was necessary became if the learned Additional Subordinate Judge found that the valuation of the suit should have been Rs. 41,095/-, and not as fixed by the plaintiff, and that ad valorem court-fee should have been paid on that amount, it would have been open to the plaintiff to scale down the relief he claimed and prosecute the suit on that basis. In any case, if the plaint had been rejected the plaintiff might resort to any other suitable proceeding to assert his right. In my opinion, however it is difficult to accede to this contention.
7. Learned Counsel for the respondent has urged, in reply that it was the defendant who had put in a petition that the sufficiency of the court-fee paid on the plaint together with the valuation of the suit should be gone into as the preliminary issue. The court, however; taking the view that all issues must be tried together chose to go into this question after recording evidence, and decided all the points together. The plaintiff acquiesced in the procedure adopted by the trial court, and it was, therefore, not open to the learned Counsel for the appellant in this court to urge that the trial court had no jurisdiction to go into other matters when pronouncing upon the amount of court-fee payable on the plaint.
Learned Counsel has placed reliance in sup-port of his contention on the case of Walaiti Ram v. Gopiram, AIR 1935 Lah 75 where in an application in revision filed against an order in the circumstances identical with those of the present case, the learned Single Judge of the Lahore High Court held that where the court recorded findings on all the issues and while dismissing the suit on merits required the plaintiff to make good the deficiency in court-fee, the procedure was not proper, and accordingly that part of the order of the court below which called upon the plaintiff to pay the deficit court-fee was set aside.
It may be stated that neither this nor any other case to which reference has been made lends any support to the first contention of Mr. Chaudhary that the trial court had no jurisdiction to enter into the merits of the case without deciding the question of court-fee as a preliminary issue. Reference to Section 6 of the Court-fees Act is not helpful to the appellants. Section 6(1) of the Court-fees' Act no doubt lays down that no document of any of the kinds specified as chargeable under any of the schedules of the Court-fees Act shall be filed, exhibited, or recorded in any Court of Justice, except in the Courts specified in the Act, nor shall be receivable by or furnished by any public officer, unless a fee of an amount not less than that indicated in the schedules to the Act be paid on the document concerned.
No doubt, therefore, it was open to the learn ed Additional Subordinate Judge not to entertain the document and It could have been rejected as required under Order 7 Rule 11 of the Code of Civil Procedure, but since the document was considered as sufficiently stamped at the initial stage, the question of the applicability of Section 6 did not arise. As I have mentioned above, it is one of that class of cases where the court at first does not find anything wrong with the valuation put by the plaintiff in the suit but the question is raised by the defendant, and in course of trial after recording evidence the court comes to a finding that the plaint has not been properly stamped.
As I have mentioned above, this may be tried as a preliminary issue in which event also Section 6 of the Court-fees Act read with Order 7 Rule 11 of the Code may, come into play. But, as in the present case without any insistence on the part of the plaintiff, if the court has chosen to try this issue along with other issues, it cannot be reasonably contended that it affect the jurisdiction of the court in the matter.
8. Learned Counsel for the appellant has contended in the next place that in any view of order of the court below 'calling upon the plaintiff to pay the additional court-fee within a period of one month from the date of the decree wa3 without jurisdiction, and the court was not competent to incorporate it in the decree after trial. Reliance has been placed in this connection in support of his argument on the aforesaid decision and also on the case of Sis Ram v. Sohan Lal, AIR 1938 Lah 311. Learned Counsel for the respondent has very fairly brought to our notice the cases of Ismail Shah v. Saleh Muhammad Shah, AIR 1925 Lah 326 (2) and Jatra Mohan Sen v. Secy, of State, AIR 1919 Cal 194(1).
The learned Single Judge in the above case of Ismail Shah, AIR 1925 Lah 326 (2) laid down that where the court has dismissed a suit on the merits, it is not competent to order that the plaintiff should pay the additional court-fee, and that if he failed to do so the point would stand rejected. In the Division Bench decision of the Calcutta High Court, which is on the same line, their Lordships observed that when a court, after disposing of a suit, held that the suit had been undervalued and that on a proper valuation there was a deficiency in the amount of the court-fee paid by the plaintiff, arid that the plaintiff was to make good the deficiency, and on his failure to do so made an order of its own motion for realisation of the deficit by attachment of his moveable property the court had no jurisdiction, to make the order in question.
Our attention has been drawn in this connection to Sections 10 and 12 of the Court-fees Act. The learned Government pleader, who has appeared on behalf of the State, has urged on a consideration of Sections 10 and 12 that the above order cannot be held to be beyond the competence of the court that passed the order when the issue of court fee and valuation was tried as one of the main issues °n merits and then demanded payment of an additional court-fee.
In my opinion, however, in view of the consensus of opinion on this point in the Lahore High Court and the Calcutta High Court which was referred to approvingly by this court in, Kedar Nath Goenka v. Chandra Mauleshwar Prasad Singh, AIR 1932 Pat 228, it appears to us that, as at present advised, it is not, desirable to depart from the view of law laid down in the aforesaid decisions. It must be held accordingly that the court below was not justified in incorporating in the decree the order for the payment of the additional court-fee.
9. There has been some argument before us with regard to the maintainability of the appeal. Learned Counsel for the respondent has urged that an appeal merely on the question of valuation and court-fee is not maintainable, when the appellant has chosen not to challenge the judgment of the court below on merits as well. He has re-
ferred to the case of Chandarmani Koer v. Basdeo Narain Singh, 4 Pat LJ 57: (AIR 1919 Pat 270) in support of his argument. After a fuller consideration, however, he has conceded that as the present appeal was directed against an order on the point of court-fee incorporating it in the decree itself after the decision of the suit on merits. It cannot be successfully urged that the present appeal would be incompetent.
In the circumstances of the present case the appeal would have the effect of challenging a part of the decree only. The appellant was entitled to do that. In view of the point being fairly conceded by the learned Counsel for the respondent, it must be held that the appeal on the question on a part of the decree on court-fee even if it was an illegal order must be held to be not incompetent.
10. In the result, the appeal is allowed, the order of the court below relating to a direction for payment of deficit court fee by the appellant must be set aside. In the circumstances of the case, however, parties will bear their own costs of this court.
Dayal, J.
11. I agree.