BANSIDHAR AGARWALLA Vs. REMESHWARLAL AGARWALLA

JUDGEMENT

(1.) The plaintiffs-petitioners filed a partition suit against the defendants-opposite party in regard to several schedules of properties. On an earlier occasion, by an order, dated the 4-6-1969, the learned Subordinate Judge asked the plaintiffs to pay ad valorem court-fees on their one-half share which they claimed in the suit, in regard to certain properties mentioned in some of the schedules. The plaintiffs came up in revision to this Court in Civil Revision No. 637 of 1969. The civil revision was partly allowed by Anwar Ahmad, J. on the 9th March, 1970. It was held that in regard to some schedules the order of the Court below directing the plaintiffs to pay ad valorem court-fees was correct; but in regard to some schedules ad valorem court-fee was not payable as directed by the Court below. By the present impugned order, dated the 26th September, 1970, the learned Subordinate Judge has asked the plaintiffs to pay ad valorem court-fees separately in regard to the various schedules on which ad valorem court-fees had been directed to be Paid by this Court in the previous civil revision, in accordance with Section 17 of the Court-fees Act. Feeling aggrieved by this direction, the plaintiffs have again come up in revision to this Court.

(2.) In my opinion, In a suit of this kind, where the main cause of action is one of partition, it is difficult to take the view that the plaintiffs asking for displacement of the title of the different sets of defendants for the purpose of making the properties liable to partition are different causes of action and, therefore, distinct subiects within the meaning of Section 17 of the Court-fees Act. In exactly a similar situation, Das, J. (as he then was), with whom Manohar Lall, J. does not seem to have disagreed, said in Salahuddin Hyder Khan v. Dhanoo Lal, (AIR 1945 Pat 421 at p. 424):--

(3.) Learned Subordinate Judge seems to be obsessed with the fact in his previous order he had directed the plaintiffs to pay court-fees separately, which direction was not interfered with by this court in the earlier civil revision. In my opinion, he is completely wrong there. In the previous order, the learned Subordinate Judge had assessed the values of the different schedules of the properties in respect of which he thought that the plaintiffs will have to pay ad valoram court-fees on their half share separately and in passing went on saying that the plaintiffs will have to pay court-fees on that value. There was absolutely no consideration of Section 17 of the Court-fees Act in the previous order. On the other hand, there is a reference in the judgment of Anwar Ahmad, J. to the aforesaid Bench decision of this Court in (AIR 1945 Pat 421), although on a different point. Tacitly, therefore, it must be assumed to have been held that the law laid down in that case was to be followed for payment of court-fees on the aggregate of the value of the plaintiffs' share. In the previous order, the learned Subordinate Judge had referred to another Bench Decision of this Court in Kaulasen Singh v. Ramdut Singh, (AIR 1951 Pat 633). In that case also, court-fee was held to be payable on the value of the plaintiffs' share in the different properties in regard to which it was held that ad valoram court-fee was payable. The value taken was aggregate, and not separately under Section 17. It is, no doubt, true that there was no discussion of this point in that decision. But, what I want to emphasise is that, when on the previous occasion the learned Subordinate Judge purported to follow that decision, it must be held that he purported to follow it in full, and not by asking the plaintiffs to pay ad valorem court-fees separately in accordance with Section 17 of the Court-fees Act.