BIBHAS MOHAN MUKHERJEE Vs. HARI CHARAN BANERJEE

JUDGEMENT

(1.) This reference arises out of an appeal from original decree filed by the plaintiffs against an order passed by the Subordinate Judge under Section 8-B (3) of the Court-fees Act. The facts leading up to this reference have been summarised in the order of reference and they are as follows :

(2.) The suit out of which this reference arises was one for a declaration that a certain preliminary decree is a suit for partition passed on compromise was invalid, inoperative and fraudulent and for certain other reliefs one of which was for a new preliminary decree. Initially the plaintiffs treated the reliefs claimed by them as for partition only and paid a court-fee stamp of Rs. 15/- upon the plaint. On the objection ot the Court, however, the plaintiffs put in an additional court-fee stamp of Rs. 20/-- This court-tee was tentatively accepted by the Court as sufficient subject to any objection that might be raised by the defendants. After the defendants had entered appearance in the suit, they raised a point as to the sufficiency of court-fees paid by the plaintiffs and upon that objection a preliminary issue was framed to the following effect : "Is the court-fee paid sufficient?" The issue as to sufficiency of court-ices was tried as a preliminary issue in the suit and upon that issue the learned subordinate Judge held that the suit filed by the plaintiffs was not for partition but one for a declaration with consequential reliefs under Section 7 (iv) (e) of the Court-fees Act and held that the plaintiffs were required to pay ad valorem court-fees upon a sum of Rs. 8,000/-. By an order dated June 20, 1949, the learned Subordinate Judge directed the plaintiffs to pay deficit court-fee to the extent of Rs. 610/- by June 27, 1949, in default, the suit would staud dismissed under Section 8-B (3) of the Court-tees Act. After an unsuccessful attempt to get an extension of time the plaintiffs eventually failed to deposit the additional court-fees as directed by the Court with the result that the suit stood dis- missed in accordance with the provisions of Section 8-B (3) of the Court-fees Act. A decree was drawn up by the Court and against that decree the plaintiffs filed an appeal to this Court. When the appeal came up for hearing a preliminary objection was raised on behalf of the respondents on the ground that the order passed by the learned Subordinate Judge under Section 8-B (3) of the Court fees Act was not a decree within the meaning of Section 2 (2) of the Code of Civil Procedure and as such the appeal filed by the plaintiff's was not competent. In support of this contention the respondents relied upon a decision of a Division Bench of this Court in the case of Mahaluxmi Devi v. Bamacharan Nandy. The decision relied upon by the respondents supports the preliminary objection raised by them but the Division Bench before which this preliminary objection was raised was inclined to differ from the judgment in the case of Mahaluxmi Devi, and referred the following questions to the Full Bench : (I) Is the order dismissing the suit under Section 8-B (3) of the Court-fees Act an appealable one? (2) Was the decision in correctly decided?

(3.) In Mahaluxmi Devi's case, the Division Bench consisting of Das and Guha Roy, JJ., gave two reasons for holding that an order of dismissal under Section 8-B (3) of the Court-fees Act is not appealable. In the first place, it held that such an order is not an order of rejection of plaint; in the second place, it further held that the order is not a formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit within the meaning of Section 2(2) of the Code of Civil Procedure. With regard to the first ground it is pointed out by the learned Judges that under Sub-section (2) of Section 6, which was added by the Bengal Amendment of 1935, the Court is authorised to receive an insufficiently stamped plaint subject to the condition that "the plaint shall be rejected" unless the plaintiff pays the deficit court-fees within a time to be fixed by the Court; but under Section 8-B (3) of the Court fees Act when the plaintiff fails to pay the court fee determined by the Court on the objection ot the defendant "the suit shall be dismissed". It was ruled by Their Lordships of the Division Bench that when the legislature uses two words 'reject' and 'dismiss' in the two sections, the one cannot be equated to the other and both of them cannot be given the same meaning and consequently an order of dismissal under Section 8-B (3) ot the Court-fees Act cannot mean rejection of a plaint.