MOULVI BAZLAR RAHMAN CHOUDHURY Vs. COMMISSIONER OF WAKFS

JUDGEMENT

(1.) The question in this appeal is whether a legal demand has been made upon the plaintiff to pay the sum of Rupees 2175 as additional Court-fees. If the demand is a legal one the order for rejection of the plaint passed by the Court below cannot be re-opened. If however the said demand was not a legal one the order cannot stand. Two jotes held under the Government fell into arrears. A sale was held by the Government under the provisions of the Public Demands Recovery Act. There being no bidders the Government purchased each of the jotes at one pice. Thereafter the Government settled the said jotes with Obaidul Huq Chowdhury. The plaintiff's case is that the original settlement-holder under the Government, one Fateh Ali Chowdhury, had created a wakf of those two jotes long time ago, that the sale by the Government had not affected the wakf because Jariman Bibi, the widow of Fateb. Ali Chowdhury against whom certificate proceedings had been taken had not been made party therein as mutwali of the wakf. The plaintiff on the allegation that he is interested in the wakf in the sense that he is a worshipper of the mosque and the manager of the wakf estate has instituted this suit. He made the Secretary of State principal defendant 1 and the Commissioner of Wakfs, Bengal, a proforma defendant. Later on the Commissioner of Wakf was on his own application transferred as a co-plaintiff. Obaidul Huq Chowdhury was later on added as a principal defendant and Jariman Khatun widow of Fatehali Chowdhury, was made a proforma defendant. In prayer No. 1 he prayed for a declaration that the properties were wakf. In prayer No. 2 he asked for a declaration that the certificate sale was fraudulent, collusive, ultra vires and illegal and as such liable to be set aside. In prayer No. 3 he asked for a declaration that the wakf had not been affected by the certificate sale and that the Secretary of State and Obaidul Huq Chowdhury had not acquired any right on the basis of the certificate sale. In prayer No. 4 he prayed for recovery of a portion of the properties in suit in respect of which he admitted dispossession. In prayer No. 6 he stated that if it transpired that the mutwali had been dispossessed from the rest of the suit lands he may be given a decree for recovery of possession of that also. Prayer No. 7 was a prayer for mesne profits.

(2.) We need not consider in this appeal the other prayers made in the suit, one of them being a prayer for specific performance on the basis of an alleged contract said to have been made by the Secretary of State with Jariman Khatun for re-settlement o? the lands in consideration of a premium of Rs. 9786. In para. 19 of the plaint as originally filed the plaintiff valued the subject matter at Rs. 2100 for purpose of jurisdiction. He also admitted that ad valorem court, fees were payable on a valuation in terms of Section 7(iv)(c) and Section 7(v)(a), Court-fees Act. He stated the market value of the subject-matter to be 6 pies only, the amount at which the Secretary of State purchased the properties at the certificate sale. With the plaint he filed a statement giving particulars of valuation required to be given in terms of the notification issued by the Government under the provisions of Section 8(A), Court-fees Act. Those particulars relate to valuation under Section 7(v). He stated in those particulars that the annual net profits of the year immediately preceding the institution of the suit was Rs. 56-2-0 in respect of the lands of Schedule 1 and Rs. 17-2-0 in respect of the lands of Schedule 2. The net profit according to him of the lands in suit in the year preceding the institution of the suit was Rs. 1098-12-0. He then stated that as the market value however was 6 pies only he was required to pay court, fees upon that amount under the provisions of Section 7(v)(a), Court- fees Act. He accordingly stamped his plaint with a court-fee of 6 as only. On the day the plaint was presented the Sheristadar submitted a report. Ha stated that the price at which the Government purchased the property at the certificate sale, namely 6 pies, cannot be taken as the market value of the subject-matter. He calculated court-fees apparently on the capitalised value of the nett profits stated by the plaintiff in his valuation statement. His recommendation to the Court was that the court-fee was short by Rs. 127-2-0.

(3.) The report was made to the Court by the Sherisbadar on 15 January 1937, the day on which the plaint was presented to him. On the same date the Court asked the plaintiff to show cause why the plaint should not be charged with additional court-fees. On 25 January following the plaintiff appeared and showed cause. It appears that before the Court did pass final orders the plaintiff amended his plaint and accepted the position that he was liable to pay court-fees on the amount of Rupees 1098-12-0. He accordingly paid a further court-fee stamp of Rs. 127-2-0 as required by the Sheristadar in his report. Thereafter summonses were issued upon the defendants. They entered appearance and raised the question which was made the subject-matter of issue 1 that the court-fees paid on the plaint were still insufficient. The Court found that an ad valorem court-fee on Rs. 9786 was required for the relief for specific performance. It required the plaintiff to put in a further sum of Rs. 750 as court-fees on the basis of the said prayer. That was done and there is no further question with regard to this order which was made by the learned Subordinate Judge and which has been accepted by the plaintiff by putting a further court-fee stamp of Ra. 750. The learned Subordinate Judge then took up the question as to whether in the valuation statement the plaintiff had assessed the nett annual profit correctly. The nett annual profit estimated by the plaintiff was as we have already stated a sum of Rs. 73-4-0. The learned Judge held that the said assessment was absurd apparently because from the valuation statement it appeared that the subject- matter of the suit comprised an area of 762.9 acres of land. He accordingly took up the question as to what was the correct net profit of the land in suit in the year preceding the institution of the suit. He came to the conclusion that the net profit was Rs. 4000. He thereafter stated that court-fees will have to be calculated on a sum obtained by multiplying the said sum by 15, that is to say on the valuation of Rs. 60,000. He accordingly passed the following order: Court-fees payable according to para. 7(v), Court-fees Act would be upon Rs. 60,000, viz., Rs. 2175.