MOHD. AZAM GORI Vs. MOHD. SALAHUDDIN GORI

JUDGEMENT

(1.) THIS is a miscellaneous appeal against the order of the District and Sessions Judge, Warangal, rejecting the plaint under Order 7, R. 11, Sub -clause (3), Code of Civil Procedure. This was a suit by the Plaintiff, who is the Appellant before us for possession of a house situated in Girmajipet, Warangal and for a decree for mesne profits for three years prior to the date of the suit. An objection was raised by the office that the two reliefs viz., the relief relating to the possession of immovable property and the relief as regards the mesne profit's should be valued separately and court -fee payable on each relief should be paid. It was contended by the Plaintiff, that where the main relief was for possession of the immovable property the claim as regards mesne profits was only an ancillary relief and, therefore, he was entitled to value the reliefs separately, add them up and pay court -fee thereon. An issue was raised in this behalf and after hearing the arguments of the Plaintiff's advocate the District Judge held that the court -fee paid by him on the above calculation was not correct. He, therefore, called upon the Plaintiff to pay the additional court -fee and granted two weeks' time to pay the deficit court -fee. This order was passed on 14 -71950. Again on 12 -8 -1950 inasmuch as the deficit court -fee was not paid by the Plaintiff within the time granted by the court, the court rejected the plaint for not making up the deficient court -fee. It is against this order that this appeal has been filed. We heard the arguments of the respective advocates and also the Government pleader and we are of opinion that the order of the lower Court is wrong.

(2.) FOR the determination of this question, the relevant section of the Court -fees Act that would have to be looked into is Section 13, Hyderabad Court -fees Act, corresponding to Section 17 of. the Indian Act. It has to be observed that the words of Section 17 of the Indian Court -fees Act are to the following effect:

(3.) A claim for possession and mesne profits is treated as one entire claim. This was the view taken by the Calcutta High Court in the case of - Kishorilal v. Sharat Chunder, 8 Cal 593 (D) and this decision was followed by the Madras High Court in the case of In Re: Parameswara Pattar, AIR 1930 Mad 633 (E).