MT MOHRI KUNWAR Vs. BKESHRI CHANDRA

JUDGEMENT

(1.) On 18 August 1937 plaintiff, Mt. Mohri Kunwar, instituted a suit in the Court of Civil Judge of Earrukhabad for a declaration of title to a half share in a garden known as Pannilalwalabagh situated in the district of Parrukhabad. The claim was valued at Rs. 15,000 for purposes of jurisdiction and the court-fee was paid on the plaint such as is required for a suit in which relief is claimed of a declaratory nature. The defendant, Babu Keshri Chand, contested the suit and inter alia he raised a plea that the plaintiff was not in possession of property and the claim was barred by Section 42, Specific Relief Act. As a result of this plea, the plaintiff on 16 August 1938 applied for amendment of plaint by praying that a relief be added in the plaint to the effect that if plaintiff be not deemed to be in possession of property possession might be awarded to her on payment of court-fee. This amendment was allowed on 17 August 1938 and on that date another order was passed staying the suit under Section 10, Civil P.C., till the disposal of P.A. No. 157 of 1936 pending in the High Court. By virtue of that order the case is yet pending in the Court of Civil Judge of Farrukhabad and all proceedings have been stayed.

(2.) On 5 November 1938, while proceedings in the suit were thus stayed, the Government Inspector of Stamps reported that the plaint was not properly stamped and he made a report for demand of additional court-fee. His contention in brief was that the garden, the subject-matter of suit, should be valued as garden and not as revenue paying land, it should be valued at Rs. 15,000 the full value of garden as given in the plaint and that ad valorem duty should be paid for the relief of declaration and possession. On 1 December 1938, the plaintiff filed objection to the report of Inspector of Stamps and on 3 March 1939, and on 22 April, 1939, the plaintiff made two applications praying for further amendment of plaint. By these amendments, in substance, she wanted to reduce the valuation from Rs. 15,000 to half its amount the value of her share in the garden, she wanted to make out that the garden was a revenue paying land and she further wanted to amend her reliefs. By an order dated 15 May 1939, the learned Civil Judge refused the plaintiff's application for amendment, he disallowed the plaintiff an opportunity to prove that the garden in dispute was a revenue paying land. He further disallowed her objection to the report of the Inspector of Stamps and has ordered her to pay the court-fee as reported by the said Inspector.

(3.) Against the said order, the plaintiff has made an appeal to this Court under Section 6A, Court-fees Act as amended by Act 19 of 1938, and the respondent has taken a preliminary objection that the appeal is not competent. The contention of the respondent is that at the date when the suit was filed, viz., 18 August 193Y7 U.P. Court-fees Act, 1870 as amended by Act of 1923,1924, 1932 and 1936, was in force and there was no appeal provided in those Acts against an order for payment of Court-fee passed in pending suit.