RAMADHIN SINGH Vs. BAIJNATH PDSINGH

JUDGEMENT

(1.) THE question is on what basis the court-fee is to be calculated both in the lower Courts and here on a suit for the recovery of malikana money claimed from a number of defendants by several plaintiffs. In the plaint as instituted there were thirteen plaintiffs. THE prayer was for a decree for. Rs. 3482-4-11 dams payable to those plaintiffs J with interest. In the course of the plaint there was a specification of the shares of plaintiffs among themselves, that is to say, plaintiffs 1 to 10 one set, plaintiff 11 one set and plaintiffs 12 and 13 one set; but relief No. 1 was not a prayer for the payment to each plaintiff or set of plaintiffs of his or their share but was a single prayer for rupees 3482-1-11.

(2.) THE cause of action was one and I have no doubt the Court of first instance was correct in accepting the court-fee of Rs. 28-5 as sufficient. At a later stage one of the cosharer malikanadars who had been impleaded as a pro forma defendant was transposed as plaintiff 14 and the claim was amended so that the relief asked for now stands thus a decree for Rs. 3482-1-11...in favour of plaintiffs 1 to 13 and for rupees 816-1-3 in favour of plaintiff 14. THE newly added plaintiff paid court-fee of Rs. 80-8-0; which is the correct court-fee on Rs. 815-1-3. THE total of the court-fees paid in the first Court thus came to Rs. 365-8-0, and the same court-fee was paid and accepted in the lower appellate Court. In this Court the plaintiffs who are all presenting one joint appeal have tendered court-fee amounting to Rs. 345 only, this being the court-fee payable on one single lump sum claim of Rs. 4297-5-14 dams which is the total of the reliefs asked for by plaintiffs 1 to 13 and the relief asked for by plaintiff 14. THE stamp reporter is of opinion that Section 17, Court-fees Act is applicable and that court-fee should be paid in respect of claims (a) of plaintiffs 1 to 10, (b) of plaintiff 11, (c) of plaintiffs 12 and 13 and (d) of plaintiff 14. 4. On that view the total court-fee payable on the appeal would be Rs. 403, and the same court-fee would have been payable in each of the Courts below so that there would be a deficit court-fee of Rs. 58 in this Court and of Rs. 37-8-0 in respect of each Court below to be realised. 5. Mr. Lalnarain Sinha for the appellants has contended that the suit is concerned with only one cause of action which is the right to malikana and the fact that this right happens to be vested in several persons or the fact that on the other band it is to be realised from a large number of defendants makes no difference to the unity of the cause of action on which, he says, the method of calculation of court-fee depends, I must, however, point out that the language: of Section 17 of the Court-fees Act as in force in Bihar, is not identical with the form in which the Section stands in Bengal. THE Bengal Section no doubt speaks of a suit in which "two or more separate and distinct causes of action are joined" and "Separate and distinct reliefs are sought" in respect of each. Now, it may be that in order to demand separate court-fees, as if there had been separate suits, the Section requires both two causes of action and also two separate and distinct reliefs sought. But the Section as it stands in Bihar applies whenever a suit embraces two or more distinct subjects and the construction of the expression distinct subjects has been most carefully examined in the Calcutta High Court in Haru Bepari V/s. Kshitishbhusan Ray A.I.R. 1935 22 . All the available authorities are there collected and I do not propose to go through them again now. It will be enough for me to say that I entirely agree with the learned Calcutta Judges in the view that subject in Section 17 is not the same as cause of action that on the one hand it is difficult to see how distinct causes of action can ever be one subject within the meaning of Section 17, while on the other hand it is possible for a suit based on one cause of action to embrace more than one subject within the meaning of the section, and it will be sufficient for the determination of this reference if I express my clear conviction that separate claims to relief are ordinarily to be considered as separate and distinct subjects. Applying this to the facts before me I find that the claim for Rs 3482-4- 11 dams for which the suit was originally presented was one subject and court-fee was correctly taken at Rs. 285 in the first Court; that the claim for Rs. 813-1-3 payable to plaintiff u was a separate and distinct subject and that separate court-fee was correctly paid on this claim in both the Courts below. Prom the rule that court, fee in the appeal is the same as in the Court of first instance, it follows that the court-fee payable in this Conrt is Rs. 365-8-0 and as Rs. 345 has been paid there remains a deficit court-fee payable in this Court of Rs. 20-8-0 for which three weeks time is allowed. THE consequences of default, in the Calcutta case, were dealt with as follows by Henderson, J.: In one matter the order is not very clear but it was not disputed by the learned Government Pleader that the petitioners cannot be made jointly and severally liable to pay all the court-fees; any plaintiff who pays the fees necessary for the determination o? his own claim will be entitled to prosecute his appeal. 7. Following that observation the entire appeal will not be dismissed if the plaintiffs within the time fixed apply for the court-fee deposited to be accepted as sufficient court-fee either in respect of the reliefs claimed by plaintiffs 1 to 13 or in respect of relief claimed by plaintiff 14. THEre will be no order for costs of this reference.