BHIKAMDAS BALARAM Vs. MOTILAL GAMBHIRMAL

JUDGEMENT

(1.) THIS is a revisional application filed by the Petitioners who were originally defendants Nos. 1, 2 and 3 and it raises a question of court-fees. The plaintiff-opponent has filed a suit, being suit No. 6 of 1955, against the petitioners for dissolution and accounts of an alleged partnership between himself and the first petitioner. The plaintiff has also asked for a declaration that the transactions entered into by the first petitioner with the other petitioner were not binding upon him and did not in any way affect his rights to the suit properties and prayed that the accounts of the alleged partnership be taken after taking this fact into consideration. He has also prayed for partition of the partnership properties and possession thereof from the petitioners and for the amount found due upon taking accounts from the first petitioner. There is also a prayer for the appointment of a receiver or commissioner for the custody of properties and for taking accounts.

(2.) THE suit was originally filed in the Court of the Joint Civil Judge, Junior Division, Poona and it was resisted by the petitioners upon several grounds, one of the grounds being that proper court-fee stamp was not paid by the Plaintiff and the Court had no jurisdiction as the value of the subject-matter exceeded the pecuniary jurisdiction of the Court. Certain preliminary issues were raised. Issue No. 5 was: "is the Court-fee stamp paid by the plaintiff proper?" Issue No. 7 was: "has this Court jurisdiction?" and Issue No. 12 was: "is plaintiff entitled to relief against defendants 2 and 3 without payment of Court-fee stamp on the market value of the plaintiff's share in the properties in the possession of defendants 2 and 3?" The learned Judge tried all these preliminary issues and by his judgment dated 2-12-1954, he held that the plaintiff must pay ad valorem court-fee on the suit properties as he had, besides dissolution and accounts of alleged partnership between himself and the first petitioner, asked for partition and possession of suit immoveable properties from strangers to the alleged partnership. In view of this finding, the learned Judge held that the Court had no jurisdiction and he ordered the plaint to be returned for presentation to the proper Court and gave the plaintiff time till 10-12-1954 to amend the plaint, failing which the suit was to stand dismissed. In place of the abovesaid two orders, the learned Judge by his order dated 8-12-1954 called upon the plaintiff to amend the plaint so as to valuates it properly within a week. The first petitioner thereupon filed civil revision application No. 199 of 1955, contending that the orders passed by the learned Judge were without jurisdiction. Mr. Justice Gajendrasadkar, by his judgment dated 29-9-1955, confirmed the order of the learned Judge by which the plaint was directed to be returned for presentation to the proper Court, but he set aside the other two orders. The plaint was accordingly returned to the plaintiff on 5-1-1956 and on the same day the plaintiff presented it in the Court of the Joint Civil Judge, Senior Division, Poona and the suit was numbered as Special Civil Suit No. 6 of 1956. As the plaintiff had not valued the suit for jurisdiction, he on 21-4-1958 made an application for amendment of the plaint giving the valuation for jurisdiction at Rs. 22,500. The learned Judge raised a preliminary issue regarding valuation of the suit for the purposes of court-fee and an issue to whether the plaintiff's contentions were barred by res judicata. It was contended on behalf of the petitioners that the plaintiff could not agitate the question as it had already been held that he must pay ad valorem court-fee. It was also contended that the plaintiff not only wanted dissolution and accounts of the alleged partnership and a declaration that the transactions entered into by the first petitioner with the other petitioners did not affect his rights, but he also wanted partition and possession of properties from those who were strangers to the alleged partnership and, therefore, he must pay court-fee accordingly. It was also submitted for the petitioners that in view of the reliefs claimed by the plaintiff, the valuation for court-fee and jurisdiction must be governed by Section 7, Sub-section (iv), Clause (c) of the Court-fees Act read with Section 8 of the Suits Valuation Act and he must accordingly pay ad valorem court-fee. The learned Judge by his judgment dated 4-7-1956 held that the plaintiff could, be asked to pay court-fee for the properties of his share which could be ascertained only after taking accounts. It was also held that the suit was merely for accounts and the plaintiff could pay court-fee at the stage of the final decree. The learned Judge accordingly held that the court-fee paid by the plaintiff was proper and he ordered that the suit be proceeded with. It is from this order of the learned Judge that the present revisional application has arisen.

(3.) MR. Tarkunde for the petitioners has contended before me that the learned Judge acted with material irregularity in the exercise of his jurisdiction in not taking into consideration the nature of the reliefs claimed by the plaintiff-opponent. It is contended that the learned Judge should have seen that the plaintiff prayed for dissolution and accounts of the alleged partnership between himself and the first petitioner, for a declaration that the transactions entered into by the first petitioner with the other petitioners in respect of suit properties were not binding on his share, for accounts in the light of the said declaration and for partition and possession of his share in the suit properties from the petitioners. Mr. Tarkunde says that the plaintiff valued the suit for dissolution and accounts at Rs. 65/-and for a declaration at Rs. 200/-, his total valuation for court-fee thus being Rs. 265/ -. Mr. Tarkunde contends that the valuation for the purposes of Court-fee was not proper. According to Mr. Tarkunde, the learned Judge acted with material irregularity in the exercise of his jurisdiction in not taking into consideration the fact that the plaintiff had asked for further reliefs also which were incidental to the declaratory relief.