COMOLATA DUTTA Vs. ISHWAR INDUSTRIES LTD.

JUDGEMENT

(1.) Smt. Comolate Dutta widow of Late Shri Walter Dutta filed a suit claiming a declaration that the sale of the suit property in execution of the decree passed in Civil Suit No. 11 -A of 1947 of the Court of the first Additional District Judge, Jabalpur, in favour of the Ishwari Industries Limited (defendant no. 1) or in favour of Rajendrana h Bhaskar (defendant no. 4) did not confer on the purchaser any right, title or interest in the suit property and as such, the purchaser was not entitled to take possession of the same in pursuance to the sale. The second relief sought in the plaint was for a decree for perpetual injunction restraining the defendants 1 and 4 from disturbing the possession of the plaintiff. She valued the claim for the declaratory relief at Rs. 20,000/ - and paid Court -Fee of Rs 20/. She further valued the relief of injunction at Rs. 200/ - and paid for this a Court -Fee of Rs. 20/ -.

(2.) Defendant no. 4 in his written statement contended that the plaintiff's suit in substance was one for setting aside the decree passed in Civil Suit No. 11 -A of 1947 and, therefore, the plaintiff had to pay ad valorem Court -Fee on the aggregate amount of Rs. 20,200/ -.

(3.) The trial Court framed issue no. 37 (a) and (b) covering the question of Court -Fee which was payable and by the finding recorded by it on 29 -2 -1960. it held that the plaintiff was liable to pay Court -Fee on at least Rs. 20,200/ -. It held that after allowing deduction of the Court -Fee already paid, the plaintiff had to pay further Court -Fee of Rs. 1285/ -10/ -. The plaintiff failed to pay the Court -Fee within time which was allowed by the Court and, therefore, it rejected the plaint under Order VII rule 11 (b) of the Code of Civil Procedure on 25 -3 -1960. The plaintiff (appellant) feeling aggrieved by the aforesaid order of rejection of the plaint has filed this appeal.