B.N. VIYALIE Vs. PRAGI LAL

JUDGEMENT

(1.) THIS is an application by the Plaintiff to revise the order dated 16 -2 -52 passed by the Civil Judge, First Class Gwalior in Civil Suit No. 28 of 1951.

(2.) THE question involved in this petition is one of Court -fees. The Plaintiff has filed a suit for a declaration that a certain receipt acknowledging the receipt of Rs. 6000/ - and purported to have been signed by him and which is now in the possession of the Defendant, is a forgery and that he never received from the Defendants Rs. 6000/ -. The Plaintiff filed the suit on a Court -fee stamp of Rs. 15/ -. One of the issues framed by the Court was whether the Court -fee paid by the Plaintiff was proper. On this issue, the lower Court found that advalorem Court -fee was payable on Rs. 6000/ -. The applicant challenges the correctness of this finding.

(3.) IN support of this petition, Mr. Moti Lal Gupta relying on the decision of the Madras High Court in 'Nagabhushanam v. Venkatfpayya' : AIR 1935 Mad 203, argued that inasmuch as the Plaintiff was impeaching the receipt as having been forged, he could not be regarded as being a party to it and that, therefore, it was not incumbent on him to have it cancelled or set aside and that he could sue for a mere declaration that the document was a forged one and pay Court -fees in the suit accordingly. The Madras decision is, no doubt, an authority for the proposition that when a person impeaches a deed as having been forged, to refer to him as being a party to it, is an obvious misuse of words and where a forged instrument has been brought into existence as if he were a party to it, it is not incumbent on him to have it. cancelled or set aside by a suit and that he can file a suit for a mere declaration that a document is a forged one and such a suit is governed by Article 17 -A(1), Court - fees Act. Learned Counsel for the non -applicant, does not question the correctness of this decision. But he argues that in the present case the Plaintiff is seeking not merely the relief of a declaration that the receipt is a forged one but also, the relief that it is held to be a genuine one, the amount of Rs. 6000/ - evidenced by the receipt was not in fact received by the Plaintiff. This contention of the non -applicant must, in my opinion, be accepted.