VASAVATTULA SARABHAMMA Vs. VASABATTULA PEDA VEERANNA

JUDGEMENT

(1.) In this case I was at first inclined to think that the lower Court's order required a reversal; but on a careful comparison and contrast instituted by me between the allegations and reliefs of the plaint as originally filed in the District Munsif Court of Peddapuram and the allegations and reliefs of the plaint as presented to the Sub-Court at Coconada on return by the former Court, I am satisfied that there are substantial and material points of difference between the two plaints which preclude the application to the present case of the ruling of the Full Bench reported in Viswaswara Sarma v. T. M. Nair, 35 Mad. 567 : (10 I. C. 201 F.B.) on which. strong reliance was placed by Mr. V. Suryanarayana the learned advocate for the petitioner.

(2.) The question which arose, for decision in the Full Bench case was whether, where a Court after receiving a plaint and cancelling the stamp affixed thereto returns the plaint for presentation to the proper Court under Order 7, Rule 10, Civil P. C., the latter could to which the plaint is presented is bound to give Page 1 of 3 Vasavattula Sarabhamma vs. Vasabattula Peda Veeranna and Anr. (08.04.1949 - MA... credit for the fee already levied by the former Court. The unanimous answer given by the three learned Judges, Sir Charles Arnold White C. J., Munro and Sankaran Nair JJ. is in the affirmative. That this ruling is applicable only to cases in which the same plaint is presented to the proper Court as was originally presented to the Court without jurisdiction, is unmistakably clear from what all the three learned Judges expressly say. Says the Chief Justice at p. 572 of the report :

(3.) What I have therefore to decide is whether the plaint returned for presentation and the plaint as presented to the proper Court are in : the present case substantially, if not verbatim et literatim the same, as required for the application of the Full Bench ruling. I am of opinion that they are not. For, it is not, as Mr. Suryanarayana would contend, that defendants 1 and 2 and 7 to 10 who figured in the original plaint simply disappeared from the plaint at the stage of its presentation to the Sub-Court at Coconada. If all that happened was that these defendants disclaimed any interest in the suit property in their written statements filed in the Peddapuram Court, and that therefore the plaintiff deleted their names from the plaint before its presentation to the Sub- Court, Mr. Suryanarayana would perhaps be right in his submission that credit should be given to him for the court-fee paid on the plaint as originally filed in the Court of the District Munsif by the Sub-Court to which the plaint was presented later. I am saying "perhaps," because, I have a doubt in my mind whether the only changes permitted to the plaintiff before presenting the returned plaint to the proper Court are not such as are necessitated by the order of return for presentation to the Court. If the changes allowed are not merely such, but more, it seems to me that the rest of the same plaint laid down by the Full Bench ruling may not be receiving the Ml effect that it ought to receive. However that may be, as pointed out by the learned Subordinate Judge in his order under revision and borne out by my own comparison and contrast of the two plaints there are substantial changes made in the allegations part as well as in the causes of action part of the plaint before it came to be presented to the Sub-Court. The gist of the action in the original plaint is that