SUNDARI DEVI Vs. KAMKHYA PRASAD

JUDGEMENT

(1.) This application is directed against an order of the learned Munsif, third Additional Court at Arrah, in Title Suit No. 154 of 1954 deciding to hold an enquiry as to the valuation of the suit for purposes of jurisdiction. Plaintiff instituted the suit for a declaration of her title to and recovery of possession of a house after evicting the defendants therefrom. There was also a prayer for recovery of Rs. 612/- as damages for use and occupation. The suit was valued at Rs. 816/- which included Rs. 204/- as the value of the disputed portion of the house and Rs. 612/-, the amount of damages claimed. On this valuation plaintiff paid a court-fee of Rs. 119/4/-. It appears that plaintiff originally filed an eviction proceeding against opposite party No. 1 under the Bihar Buildings (Lease, Rent and Eviction) Control Act. The opposite party took the plea there that he was not the tenant of the petitioner and had never entered into possession of the house. He alleged further that the house was in occupation of opposite party Nos. 2 and 3. The House Controller accepted the plea that there was no relationship of landlord and tenant between the parties and dismissed the application. Thereafter the plaintiff brought the present suit. According to the report of the Sarishtadar who checked the plaint the court-fee paid by the plaintiff was correct. Later on a peripatetic stamp reporter examined the plaint and reported that a further declaratory court-fee of Rs. 22/8/- Was required on the plaint. He was of the view that the suit having been instituted after an adverse order of the House Controller a relief by way of declaration that the order of the House Controller was void, although not asked for, was implicit in the plaint. Plaintiff objected to the stamp report but the Court by its order dated 18-4-56 held that plaintiff was liable to pay a declaratory court-fee of Rs. 22/8/- as reported by the stamp reporter. The suit was thereafter transferred to the file of the third Additional Munsif, Arrah, for disposal.

(2.) On 20th June, 1956 the learned Additional Munsif observed that since the contesting defendant had alleged that the disputed portion of the house was worth Rs. 6,500/- and since an issue had been framed in the suit as to whether it was beyond the pecuniary jurisdiction of the Court it was necessary that the question of valuation should be determined at the first instance. The petitioner objected to the Court holding an enquiry into the matter. This objection was overruled.

(3.) Learned counsel appearing for the petitioner has urged that the question of valuation of the court-fee having already been decided on 18-4-56 by the learned Munsif, 2nd Court, the predecessor of the learned Additional Munsif, the latter could not reopen the order and his decision to hold an enquiry on the question of valuation was without jurisdiction. Reliance in this connection is placed on Harihar Prasad Narain Deo v. Maheshwari Prasad Narain Deo, AIR 1925 Pat 471 (A). That was a suit between two brothers for partition. The defence was that the property was an impartible raj. An issue was raised as to the sufficiency of the court-fee and the Subordinate Judge before whom the suit was instituted decided the issue in favour of the plaintiff holding that the suit was one for partition only. No appeal was made against this order. At a later stage the suit came before another Subordinate Judge who took up the question as to the sufficiency of the court-fee again and decided that the plaintiff was bound to pay ad valorem court-fee. This order of the learned Judge was held to be without jurisdiction. Their Lordships observed that the original order whereby it was held that the court-fee paid was sufficient was a judgment within the meaning of law and could not be altered save as provided by Section 152 or on review. In my opinion this authority has no application to this case at all. In the present case no issue was decided by the predecessor of the learned Additional Munsif as to the sufficiency or otherwise of the court-fee paid. All that happened was that on the report of the stamp reporter that a further declaratory court-fee of Rs. 22/8/- was payable the learned Munsif called upon the plaintiff to pay that amount. Nor was any issue decided at that stage whether the suit had been properly valued. The order dated 18-4-56 is no bar to the Court determining the valuation of the suit and the court-fee payable by the plaintiff. There having been no decision on any issue so far that order does not come within the purview of the expression "judgment". I have no doubt that having regard to the issue raised by the contesting defendant the learned Additional Munsif had full jurisdiction to determine the question of valuation.