UDAI CHAND LAL Vs. FIRM PANNALAL CHAMPALAL

JUDGEMENT

(1.) THIS is an application on behalf of the plaintiff who instituted title suit No. 17 of 1940 for certain declarations after he was defeated in a proceeding under Order 21, Rule 58, Civil P.C. The order complained against was passed by the learned subordinate Judge on 18 May 1940, requiring the plaintiff to pay an ad valorem court-fee of Rs. 1132-8-0. The learned subordinate Judge was of opinion that as the plaintiff sued for a declaration with injunction, both temporary and permanent, and also because it appeared to the learned subordinate Judge on a perusal of the record of the execution case that delivery of possession had also been effected of the property mentioned in the plaint, the plaintiff must sue for recovery of possession. Hence the learned subordinate Judge thought that court-fee ad valorem was payable by the plaintiff. In so doing he has completely overlooked the well-known decision of their Lordships of the Judicial Committee in Bibi Phul Kumari V/s. Gansyam Misra (08) 35 Cal. 202 The plaintiff in that case also asked for relief (c), as stated at page 203, that a permanent injunction may issue on the defendant first party not to execute his said decree against the said properties of the plaintiff. 3. Lord Robertson, in delivering the judgment of the Privy Council, expressly approved of the decision of the Bombay High Court in Dondo Sakharam V/s. Govind Babaji (85) 9 Bom. 20 in which the learned Chief Justice had held that the ruling in Parvati V/s. Kisansingh (82) 6 Bom. 567 which had always been followed in the Bombay High Court. shows that although the plaintiff may pray in such a suit to be awarded possession, the plaint is still to be treated as falling under Art. 17, Clause 1 of Schedule 2 of Act 7 of 1870, and chargeable with only a 10- rupee stamp. 4. Act 7 of 1870 was the Court-fees Act in force at that time. The present Court-fees Act has a similar provision, but the duty chargeable has now been raised to Rs. 15. In these circumstances I think the learned subordinate Judge was in error in construing the reliefs asked for in the present plaint and in requiring the plaintiff to pay ad valorem court-fees. The second relief only says that an order for permanent injunction be passed on the defendant first party so that no delivery of possession of the property in suit may take place and prevent them from taking any illegal action whatsoever to the detriment of the plaintiff. 5. It is therefore argued that the plaint in the present suit is not confined to the reliefs which can be properly granted in a suit instituted under Order 21, Rule 63, Civil P.C. But the cause of action in the plaint is stated to be the order in the claim case, passed on 17 July 1939, within the jurisdiction of the Court at Arrah. That being so, the question of the amount of court-fee is governed by the decision in Bibi Phul Kumari V/s. Gansyam Misra (08) 35 Cal. 202. 6. The order of the learned subordinate Judge is set aside, and he is directed to proceed with the suit from the stage at which he passed the order dated 18 May 1940. The plaintiff is entitled to the costs of this Court, hearing fee one gold mohar. Harries C. J. 7. I agree.