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2014 DIGILAW 141 (CAL)

Sumathi Haldar v. Suraj Bahadur

2014-02-21

I.P.MUKERJI

body2014
JUDGMENT : I.P. Mukerji, J. 1. The order (No. 3 of 22nd August, 2013) passed in Other Suit No. 106 of 2013 (Smti. Sumathi Haider v. Shri Suraj Bahadur) suffer from some infirmities. The learned Judge held that the suit was undervalued and refused to proceed with the hearing of the interim application, unless the deficit court fee, as determined by the order was paid. 2. The sale agreement is dated 9th October, 2004. The consideration therein is Rs. 8,70,000/- The suit is for specific performance of this agreement. According to the learned Judge, court fee was payable on this consideration under section 7(x) of the Court Fees Act, 1870. Court fee of Rs. 3000/- had been paid valuing the suit at Rs. 1,70,000/-. Court fee was adjudged by the learned Judge to be Rs. 8250.50, the deficit being Rs. 5250.50. The Tsunami and earthquake that hit these islands on 26th December, 2004 not only caused untold damage to property but also reduced the valuation of the land in question, Mr. Jayapal submits. 3. By virtue of Regulation 8A of the Regulation dated 26th July, 1957, the plaintiff is entitled to value the suit using his/her best judgment. This provision, according to learned counsel is special to the islands and hence overrides the general rules specified in section 7 of the Court Fees Act, 1870. 4. On the other hand, it is true chat section 7(x) of the Court Fees Act, 1870 stipulates that court fees in a suit for specific performance of a contract of sale should be paid according to the amount of consideration, 5. The question of valuation of a suit and payment of court fee can be gone into by the Court at various stages the suit under the Court Fees Act, 1870 read with the Regulations dated 26th July, 1957, amending the said Act, as applicable to the Andaman and Nicobar Islands. The question of valuation of a suit and payment of court fee can be gone into by the Court at various stages the suit under the Court Fees Act, 1870 read with the Regulations dated 26th July, 1957, amending the said Act, as applicable to the Andaman and Nicobar Islands. This Act and the regulation are to be read with the Suits Valuation Act, 1887, Regulations 8B(1) and (2) are important and inserted below:- 8B.(1) In every suit in which a court-fee is payable under this Act on the plaint or memorandum of appeal, the Court shall, on the date fixed for the appearing of the opposite party or as soon as may be thereafter, and in every case before proceeding to deliver judgment, record a finding whether a sufficient court-fee has been paid. (2) If the Court records a finding that an insufficient court-fee has been paid on the plaint or memorandum of appeal, the Court shall:- (a) stay all further proceedings in the suit until it has determined the proper amount of such court-fee payable and the plaintiff or the appellant, as the case may be, has paid such amount or until the date referred to in clause (b), as the case may be; Provided that, if the plaintiff or appellant gives within such time as the Court may allow, security to the satisfaction of the Court for the payment of any additional amount for which he may be found liable, the Court may proceed with the suit, (b) fix a date before which the plaintiff or appellant shall pay the amount of court-fee due from him, as determined by the Court under clause (a)." 6. The learned judge had the power under Regulation 8B (1) and (2) to determine whether the right court fee had been paid, as early as 'at the time for appearance of the defendant. It was not right for him to refuse .o hear the interim application on this ground at the very threshold. It was much before the time for appearance of the defendant in the suit. It would have been more prudent on his part, considering the above circumstances, to decide this issue at the time of passing the final decree in the suit. Regulation 8B (1) also permits this. It was much before the time for appearance of the defendant in the suit. It would have been more prudent on his part, considering the above circumstances, to decide this issue at the time of passing the final decree in the suit. Regulation 8B (1) also permits this. If-court fee paid is found to be deficient, pronouncing the decree can be held up till the full court fee are paid [see Regulation 8B (2)]. 7. Therefore, the (above) impugned order No.3 dated 22nd August, 2013 passed by the learned Civil Judge (Senior Division), Port Blair is set aside. He is requested to hear out the interim application in aid of the suit as expeditiously as possible preferably within a period of two months from the date of communication of this order. This application is allowed to the above extent only. 8. Interim order if any subsisting today will continue till further orders to be made by the Court below. Let a plain copy of this order duly countersigned by the Assistant Register (Court) be made available to the learned counsel for the parties upon usual undertakings. Application allowed.