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1951 DIGILAW 1 (MP)

Laxmanrao v. Dagubai

1951-01-04

KAUL

body1951
ORDER : This is an application for revision of an interlocutory order passed by the learned District Judge holding that the Court-fee paid by the plaintiff Mt. Dagubai in a suit pending in his Court was sufficient. 2. The facts which gave rise to this application are as follows. 3. Mt. Dagubai widow of Baburao instituted a suit in the Court of the District Judge Indore praying for a declaration that a deed executed by her in favour of Laxmanrao having been obtained by exercise of fraud and undue influence was null and void. She further prayed that the same may be cancelled. She joined one Madhorao as a co-plaintiff with her. Laxmanrao filed his written statement to the plaint. Among other pleas raised in defence it was objected that the Court-fee paid on the plaint was insufficient. Dagubai though she valued the suit for the purposes of jurisdiction at Rs. 12,000/- paid a court-fee of Rs. 15/- only on her plaint. In view of the objection raised she amended her plaint with the permission of the Court. By the amended plaint the only relief asked for was a declaration to the effect that the deed in question having been obtained from Dagubai by exercise of undue influence was null and void. The learned District Judge of Indore before whom the matter came up for consideration framed a number of issues on the pleadings. Issue No. 4 ran thus : Is the court-fee paid on the plaint sufficient? 4. This issue was decided as a preliminary issue and answered in favour of the plaintiff. Dissatisfied with this order Laxmanrao has come up in revision. 5. It was contended on behalf of the opposite party that no revision lies. The case was argued before me at considerable length and having given my careful consideration to the argument advanced I am of opinion that this objection must prevail. Dagubai's case as set out in her plaint was that she intended to execute a deed of adoption but on account of a fraud practised upon her and the misrepresentations made by Laxmanrao she was in ignorance of actual facts, induced to put her signature on what on the face of it was a deed of gift. This according to her was null and void in the eye of law. She brought a suit for a declaration to that effect. This according to her was null and void in the eye of law. She brought a suit for a declaration to that effect. No question of jurisdiction arises in the present case. The suit as already stated was valued for the purposes of jurisdiction at Rs. 12000/-. Dagubai's contention was that it was a pure suit for declaration where no consequential relief was prayed for. Accordingly it was covered by Schedule II entry No. 11 (iii) of the Indore Court-fees Act which corresponds to Schedule II Article 17 (iii) of the Indian Court Fees Act - Plaint or memorandum of appeal to obtain a declaratory decree where no consequential relief is prayed. Under the Indore Court Pees Act such a suit is liable to payment of a fixed court-fee of Rs. 15/-. The question whether a decision as regards the sufficiency of court-fee in such a matter is obviously governed by the provisions of the Court-Fees Act. But that Act contains no provision dealing with the question whether an order determining such a matter is open to revision by the High Court or not. The question must therefore be governed by the provisions of Civil P. C., S. 115. If the matter is governed by that section clearly no revision lies. In the first place there is no justification to warrant a conclusion that the finding on issue No. 4 given by the learned Additional District Judge in the present case constitutes "a case decided" within the meaning of that expression used in S. 115, Civil P. C. and secondly no question as to exercise of a jurisdiction not vested in the Court arises. Though it is a well settled practice of this Court that it would ordinarily not interfere in revision with interlocutory orders passed by subordinate Courts, even if one were to hold as has been done by certain High Courts that interlocutory orders may in certain circumstances be revised by the High Court, this is not a case which would fall in the category of the orders which would thus be revisable. One of the reasons for the view stated above is that another remedy is open to the present petitioner and he can challenge the order under S. 12 (ii) of the, Court-fees Act. 6. One of the reasons for the view stated above is that another remedy is open to the present petitioner and he can challenge the order under S. 12 (ii) of the, Court-fees Act. 6. Assuming that the contention put forward on behalf of the present petitioner that such a suit as was brought by Dagubai falls under S. 7 (IV) (c) and not Schedule II, Art. 17 of the Court-fees Act, it cannot be said that in proceeding with the suit under an erroneous view of the law the Court has usurped a jurisdiction which was not vested in it. The failure to pay the prescribed court-fee on the plaint will not affect the jurisdiction of the Court to entertain the suit, (see 'RACHAPPA SUBRAO v. SHIDAPPA VENKATRAO', 46 Ind App 24 (PC) as well as 'MT. JANTAN v. AHMAD', AIR 1928 Lah 221 and 'PRAMATHA CHANDRA v. KHETRA MOHAN', 29 Cal 651 at p. 654). If a Court disposes of a suit on which sufficient Court fee has not been paid its decision will not be without jurisdiction. Accordingly, even if the view taken by the lower Court is wrong, at the worst, it has been guilty of an error of law and the revisional jurisdiction of the High Court cannot be exercised under S. 115, Civil P. C. merely to correct an error of law committed by a subordinate Court. I hold accordingly that the present revision application is not entertainable. 7. But as the case was argued before me at great length by Mr. Newaskar I would briefly indicate my view on the merits of the question raised. 7a. It was contended by the learned counsel that where a plaintiff so frames his plaint as to disguise the real object of the suit and gives it a different appearance with the purpose of saving court-fee it is the substance of the claim which should be looked at and not merely the language in which the relief is asked for. In support of his contention the learned counsel referred to a number of cases, including 'HARIHAR PRASAD SINGH v. SHYAM LAL SINGH', 40 Cal 615; 'KAMALA PRASAD v. JAGARNATH PRASAD', AIR 1931 Pat 78 MT. In support of his contention the learned counsel referred to a number of cases, including 'HARIHAR PRASAD SINGH v. SHYAM LAL SINGH', 40 Cal 615; 'KAMALA PRASAD v. JAGARNATH PRASAD', AIR 1931 Pat 78 MT. NOOWOOAGAR OJAIN v. SHIDHAR JHA', 45 Ind Cas 238(Pat); 'KALU RAM v. BABU LAL', AIR 1932 All 485 (PB); 'PHULKUMARI v. GHANSHYAM MISRA', 35 Cal 202 (PC): 'VENKATA RAMANI AIYAR v. M. NARAYANASAMI AYYAR', AIR 1925 Mad 713; 'DEOKALI KOER v. KEDARNATH', 39 Cal 704 and 'KHEMRAJ v. JAVARCHAND', 1934 Indore LR 236. The Court-fees Act puts cases, to obtain declaratory decree or order where consequential relief is prayed for, and those to obtain a declaratory decree where no consequential relief is prayed in two different categories. Obviously it is open to a plaintiff to frame his suit in the manner he is advised. The original suit instituted by Dagubai was probably one falling under the first of these categories. She decided however to amend her plaint and to so alter her relief paragraph as to make it a suit clearly falling under the second category. The permission for amendment having been granted the question of court-fee must be determined on the plaint as it stands after the amendment. Even though her object might be to escape the payment of higher court-fee there is nothing in the law which would debar her from doing so. The court-fee payable on a plaint is to be determined by the language of the plaint and not by an inquiry into the intention, of the plaintiff which induced her to give her plaint a particular form. I am supported in this view by the decision of a Pull Bench of the Allahabad High Court in 'BISHAN SARUP v. MUSA MAL', AIR 1935 All 817 . It was held by the Full Bench that where a plaint is so worded as to disclose a suit falling either under S. 39 or S. 42 of the Specific Relief Act, it is not open to a Court to treat the suit as one falling within the purview of S. 39, if the plaintiff desires it to be construed as one under S. 42. If on a perusal of the plaint the Court considers that it is one in which further relief should have been asked for then it may refuse to grant a declaration. If on a perusal of the plaint the Court considers that it is one in which further relief should have been asked for then it may refuse to grant a declaration. The Court cannot compel the plaintiff to add a prayer for consequential relief when he has not in fact asked for such relief. Hence where a plaintiff claims a declaration that a certain registered deed is void and does not affect his interests and deliberately avoids claiming consequential relief such as cancellation of it, he need not pay ad valorem court-fee on the subject-matter. I respectfully follow the view taken in that case and hold that the court-fee paid by Dagubai on her plaint as it stood after amendment was sufficient. 8. The application is dismissed with costs. Application dismissed.