DEOKINANDAN Vs. JHOTHA LAL

JUDGEMENT

(1.) The plaintiffs filed a suit in the Court of the Civil Judge, Kanpur, for recovery of a sum of RS. 7,645.43. The plaintiffs' case was that the defendants were plaintiffs' Commission Agents working at Collectorganj, Kanpur, and the plaintiffs had sent to the defendants mustard seed for sale, but as the price was rising they had instructed the defendants not to sell the goods till farther instructions, and contrary to the directions given by the plaintiffs the defendants sold the goods which caused a loss of Rs. 7,345-4-3 to the plaintiffs which the plaintiffs were entitled to recover. The suit was decreed in part on 17 11-1945, and a decree for Rs. 3,039 9-0 was passed in plaintiffs' favour. The defendants thereafter filed an application for review under Order 47, Rule 1, Civil P. C., on 27-8-1946, and claimed that the decretal amount should be reduced by a sum of Rs. 426-15-0. Court fee of only Rs. 0.15 0 was paid on the application as the defendants' Contention was that there were clerical errors in the judgment which could be corrected under Section 152, Civil P. C. and that it was not necessary for them to make an application for review under Order 47, Rule 1 of the Code. The Court was, however, of the opinion that there were no accidental errors and Section 152, therefore, did not apply. The defendants were required to pay proper court, fees on the application for review and the question that has been referred to us for answer is what was the proper court-fee payable on the application.

(2.) The learned civil Judge was of the opinion that in view of the language of Article 5 of Schedule 1, Court-fees Act (VII [7] of 1870) the defendants must pay the court-fees payable on the original plaint. On behalf of the defendants, however, a contention was raised that they wanted the amendment of the decree only to the extent of Rs. 426 15-0 and they should be asked to pay court-fee on that sum and no more. The lower Court decided against the defendants relying on certain decisions of this Court, to which reference will be made later, and the defendants filed an appeal to this Court under Section 6-A, Court fees Act. The case came up before a bench of learned Judges, who, in view of certain decisions of the Madras and Rangoon High Courts, thought it desirable that the question should be decided by a larger bench.

(3.) Article 5 of Schedule 1, Court-fees Act, is as follows: