AZIZ BHAT Vs. SULTAN BHAT

JUDGEMENT

(1.) THIS is a revision petition under Section 115 of the Code of Civil Procedure directed against the order of the Sub -Judge at Srinagar calling upon the plaintiff -petitioner to pay additional court -fee on his plaint. The suit was for possession of a building and the land appurtenant thereto. The plaintiff valued the suit at Rs. 1100/ - and paid court -fee thereon. The defendant raised an objection that the suit is under -valued. The trial court after recording the evidence adduced on either side came to the conclusion that the market value of the property in suit is Rs. 2500/ - and directed the plaintiff to pay the deficit court -fee. The plaintiff has, therefore, come up in revision against that order,

(2.) A preliminary objection is taken by the defendant -respondent that the order in question is not revisable under the provisions of S. 115 of the Code of Civil Procedure. He urges that the proper and only remedy of the plaintiff -petitioner is to prefer an appeal as and when the plaint comes to be rejected for non -payment of adequate court -fee. He has sought to reinforce his contention by pointing out that a court has jurisdiction to decide wrongly as well as rightly on a pure question of court -fees and that even if the order be erroneous, it will not fall within the purview of S. 115. We have to examine the validity of these contentions.

(3.) WE find it extremely difficult to accept the contention that when a court has wrongly ordered payment of court -fee over and above what was paid upon the plaint, the only course open to the aggrieved plaintiff is to pursue the somewhat cumbrous remedy of filing an appeal after his plaint is rejected for non -payment of the amount directed to be paid. The question in such a case will he really one of jurisdiction. The Court refuses to proceed with the suit until additional court -fee is paid. A specific order that the court will not proceed with the suit until the payment is made is not contemplated by the Code of Civil Procedure and is not generally made by a court. But in truth and substance an order directing payment of additional court -fee amounts to such an order.