SHAMA SOONDARY Vs. HURRO SOONDARY

JUDGEMENT

(1.) The plaintiff, as a member of a partnership concern, brings this suit against her co-partners and certain persons, who have acted as servants of the concern, to obtain from them certain account papers which she specifies. She estimates the loss arising from the defendants not rendering these accounts to her at Rs. 4,000, but she values the suit at Rs. 10 only, as she seeks to obtain a simple declaratory decree, and intimates her intention of bringing a 1 further suit for account alter she has received the account papers which she requires.

(2.) The first Court framed certain issues, none of which had reference to the valuation of the suit, and finally gave a partial decree in favour of the plaintiff. Against this judgment the defendants appealed, and their memorandum of appeal was engrossed on a stamp of like valuation. The District Judge, on taking up the appeal, was of opinion that the plaint bere an inadequate stamp, and under the proviso in the 1st clause of Section 12 of the Court Fees Act, VII if 1870, called upon the plaintiff to make good the stamp due upon the full amount of her claim, viz., Rs. 4,000. As she failed to do this within the required time, the District Judge set aside the decision of the Subordinate Judge "as void for want of jurisdiction." Against this order a special appeal has been preferred to this Court, and the ground taken is, that the District Judge has erred in law in the construction which he put upon the 12th section of the Court Fees Ace; in other words, that, as no question relating to valuation for the purpose of determining the amount of fee chargeable on the plaint was decided by the Court of first instance, the Appellate Court was not competent, under the 2nd clause of Section 12, to raise the point of its own motion and require an additional fee to be paid. In support of this contention, the case of Kala Chand Sen v. Anund Kristo Bose (22 W. R., 433) is referred to, in which, in a case presenting somewhat similar circumstances, a Division Bench of this Court expressed the opinion that "the object of the proviso," (to Section 12)" was no doubt to enable the Appellate Court to interfere for the protection of the revenue in a case where a question of that sort might be raised and improperly decided. In the present case, even if it be assumed that the stamp originally paid was, what it really was not, insufficient, there was no question raised in the Court of first instance. It seems to us, therefore, that the Subordinate Judge ought not to have allowed to be raised on this occasion a question which neither had been raised in the first Court, where, if necessary, the amount of additional stamp might have been at once paid, nor in the grounds of appeal."

(3.) We observe that, in that case, the Court held that the stamp originally paid was not insufficient, and therefore this expression of opinion relative to Section 12 of the Court Fees Act taking the form of an obiter dictum cannot be regarded as an authoritative declaration of the law.