MOOL CHAND Vs. PANNA LAL

JUDGEMENT

(1.) This is a petition for revision of the order of the court of Shri S.N. Chadha, Subordinate Judge Second Class, Narnaul, dated May 28, 1975, whereby he decided the preliminary objection relating to the valuation of the suit for purposes of court-fee against the defendants and held that the court-fee paid on the suit was proper. The defendant has argued that the decision of the learned Subordinate Judge on merits is incorrect in view of the law laid down by their Lordships of the Supreme Court in Shamsher Singh v. Rajinder Prashad etc., 1974 CurLJ 201.

(2.) Mr. M.L. Sarin, learned counsel for the plaintiff-respondent, has raised a preliminary objection to the maintainability of this revision petition under Section 115 of the Code of Civil Procedure relying on the judgment of the Supreme Court in Sri Rathnavarmaraja v. Smt. Vimla, 1961 AIR(SC) 1299He has argued that whether proper court-fee is or is not paid on the plaint is primarily a question between the plaintiff and the State and that the defendant who may even raise any such plea that proper court-fee has not been paid by the plaintiff has no right to move the superior courts in revisional proceedings. When a similar objection was taken up before the Supreme Court to the maintainability of the appeal of the defendant in Shamsher Singh's case , their Lordships made it clear that the observations made in Sri Rathnavarmaraja's case must be understood in the background of the facts of that particular case. Their Lordships made it clear in Shamsher Singh's case that the ratio of their earlier decision was that no revision on the question of court-fee lay at the instance of a defendant where no question of jurisdiction was involved, but that the said principle would not apply to the case of an appeal, wherein the question of court-fee has been raised. Shamsher Singh had gone up to the Supreme Court, it must be remembered, against an appellate order of the High Court. The question of jurisdiction was also involved in that case inasmuch as the plaintiff had valued his suit for Rs. 16,000/- but had not paid ad-valorem court-fee. In the instant case the plaintiff has not valued the suit in accordance with the market value of the property or the consideration involved in the sale which is sought to be avoided even for purposes of jurisdiction. In these circumstances it appears to me that the case falls squarely within the dictum of their Lordships in Sri Rathnavarmaraja's case and it is, therefore, not open to one in these proceedings to go into the merits of the controversy relating to the question of court-fee at the instance of the defendant who has come up to this Court.

(3.) The apprehension in the mind of the defendant-petitioner about the case being handled by a Subordinate Judge of the Second Class can be allayed by directing that the suit may be heard and decided by a Subordinate Judge of the First Class.