HARI NATH MITTAL Vs. SATISH KUMAR AND OTHERS

JUDGEMENT

(1.) This revision petition has been filed by Hari Nath Mittal plaintiff against the order of the Subordinate Judge 1st Class Ambala Cantt dated 4th February, 1985 ordering the plaintiffs to pay court fee on half of the valuation of the house in dispute. The case of the plaintiffs is that they were the owners of half of the house and were in possession of a part thereof. Consequently they filed a suit for possession by partition of one half share. They fixed a court fee of Rs. 25/- under Schedule II, Article 12(vi) of the Court Fees Act as amended in Haryana. The Court, after framing the issues, ordered that the plaintiffs should pay the court-fee on half valuation of the house which had been assessed by the plaintiffs at Rs. 1,00,000/-. The plaintiff, Hari Nath Mittal, has come up in revision to this Court.

(2.) The only question that arises for determination is whether the plaintiffs are liable to pay court-fee under Article 12(vi) of Schedule II or they are liable to pay court-fee on half of the valuation of the house. It is well settled that if the plaintiffs allege that they are in part possession of the property, then in suit for partition they are liable to pay court-fee under the aforesaid Article. Reference in this regard may be made to a Full Bench decision of the Lahore High Court in Diwan Chand v. Dhani Ram,1941 43 PunLR 147. It was observed by Tek Chand, J., speaking for the Court, that the wording of Article 17 of the Court Fees Act shows clearly and indubitably that when a suit falls under any one of the clauses of Article 17 the plaint as well as the memorandum of appeal arising from such a suit, is chargeable with a fixed court-fee of ten rupees only, irrespective of whether the subject-matter in appeal is or is not capable of being estimated in money-value. Therefore, in an appeal arising from a suit for partition of joint properties, of which the plaintiff claimed to be in actual or constructive possession, a court-fee of rupees ten is payable on the memorandum of appeal, even though the trial Court had found the plaintiff not to be in possession of some or all such properties. It may be mentioned that Article 12(vi) of Schedule II of the Court Fees Act, as amended in Haryana, is equivalent to Article 17(vi) of the Schedule II of the Court Fees Act. Therefore, the above observations are fully applicable to the present case.

(3.) For the aforesaid reasons I accept the revision petition, set aside the said part of the order dated 4th February, 1985 and hold that the plaint is properly stamped. No order as to costs.