DUGGEMPUDI RAMAKRISHNA REDDI, MINOR BY NEXT FRIEND AND MATERNAL GRANDFATHER GADEY PEDA VENKATA REDDY Vs. DUGGEMPUDI VEERAREDDI AND ANR.

JUDGEMENT

(1.) THIS second appeal arises out of a suit for partition filed by the appellant claiming a third share in the family properties. The suit was at first filed against two defendants, first defendant being the father and the second defendant being the brother of the plaintiff. The third defendant was later on added on the ground that that he was an alienee of item 6 of the plaint properties from the father, the first defendant. The Subordinate Judge then raised an additional issue whether the plaintiff can claim any relief in respect of item 6 of A schedule without having the sale set aside and whether the court -fee paid is correct. He held that the sale ought to be set aside and that court -fee should be paid on the value of item 6. This item was valued in the plaint at Rs. 1,012 and therefore the Subordinate Judge called upon the plaintiff to pay an additional court -fee of Rs. 119 -15 -0. Time was given till the 23rd December, 1943, for payment. Plaintiff took time for payment till the 30th December. The Subordinate Judge did not attend Court on that day and the case was posted to the 10th January, 1944. On that day instead of paying the deficit court -fee, the plaintiff filed a memorandum giving up the third defendant and the sixth item of the A schedule property and said that he would go on with the suit as regards the other items which were admittedly in the possession of defendants 1 and 2 and as to which there was no trouble about the valuation. The Subordinate Judge held that the plaintiff was not entitled to relinquish any portion of his claim without filing a petition for amendment of the plaint and that as no such petition was filed he had under Order 7, Rule 11, Civil Procedure Code, no option but to reject the plaint. He therefore dismissed the entire suit. On appeal the District Judge has confirmed the decree of the trial Court agreeing that :

(2.) THE District Judge recognised that under Order 23, Rule 1, the plaintiff may at any stage withdraw his suit or abandon part of his claim and that he can do so without the leave of the Court, but he held agreeing with the trial Court that until the plaint is amended by a petition filed for that purpose, the plaint remains at large as a document on which the required court -fee has still to be paid and that Order 7, Rule 11 compels the Court to reject the entire plaint. I am unable to agree. Under Order 23, Rule 1, Civil Procedure Code

(3.) THESE observations no doubt seem to be in favour of the respondents, but the decision must be confined to the facts of the case which were that at the stage when the request was made to the High Court, the plaint had alrady been rejected. This is how this decision has been viewed and applied by the same High Court in Mt. Saiyadunnessa v. Gaibandha Loan Co., I.L.R.(1916)Cal. 352 There the trial Court held that a further court -fee ought to be paid and gave some time. On the adjourned date the plaintiff put in a petition to reduce the amount claimed so as to bring the claim within the court -fee paid. The application for amendment was rejected and the plaint also was rejected as being insufficiently stamped. The matter was taken to the High Court and it was held that inasmuch as the plaintiff had applied for amendment of the plaint by reducing the claim for compensation before the expiry of the time given to him for paying the deficit court -fee, or before any order rejecting the plaint was passed, the Court had power to consider the application on merits and allow the abandonment of the claim as prayed for and that the Court cannot be said to have lost this power of allowing amendment by reason of the fact that the plaintiff was allowed time to make good the deficit court -fees. The decision in Midnapore Zamindari Co., Ltd. v. Secretary of State for India, I.L.R.(1916)Cal. 352 was pressed upon their attention. In dealing with that decision the learned Judges said this: