VISHWANATH VASUDEO Vs. SAKAL ALYA PANCH

JUDGEMENT

(1.) A suit was instituted by the Plaintiffs, on behalf of Sakal Alya Panch Khargone, against the Defendant applicants, for the possession of a temple. The allegation is that the temple of Ramjee belongs to the Panchas, and after the death of Mahant Shri Kuberdas, the Panchas appointed Defendant No. 1 as the pujari. Defendant No. 2 is the brother of Defendant No. 1. The plaint stated that the duty or Defendant No. 1 was to arrange the Puja, to manage the temple and to take the offerings. Due to mismanagement of the temple, the Panchas desired to appoint a new Pujari; but Defendants No. 1 and 2 did not leave the temple and hence the suit is instituted. The Plaintiffs valued the relief of possession at Rs. 100/ - and 5 rupees was the valuation put for purposes of injunction and they paid Court fee of Rs. 8/14/0. The trial Court held that the subject matter of the suit is not capable of money valuation and, therefore, the Court fee ought to be levied under Schedule II Article 17(VI) of the Court fees Act and the Plaintiffs were ordered to pay Rs. 15/ -.

(2.) AGAINST this order the Defendant has come up to this Court and wants me to revise it. The first question that arises is: Whether such a revision is entertainable?

(3.) THEIR Lordships refused to allow a Defendant to utilise the provisions of the Act to obstruct his opponent, and refused to entertain his objection raised for the first time in appeal, that the Court had no jurisdiction to proceed upon an insufficiently stamped plaint. An inference was rightly drawn from this by the Full Bench of the Nagpur High Court in - 'Balaji Dhumnaji v. Mukta Bai' : ILR (1938) Nag. 106 : AIR 1938 Nag. 122 (FB) that a question about the sufficiency or otherwise of Court -fee is only a side -issue. It is not inter, partes and does not invalidate a decision simply because the plaint or the Memorandum of appeal was under -stamped.