FALKUMARI Vs. GHANSHYAM MISRA

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Purnesh dismissing a suit on the ground of the plaint being insufficiently stamped. The suit is one to establish the plaintiff's right to certain property and for a perpetual injunction restraining its sale, as the property of the defendant No. 2. It is, therefore, a suit of the nature referred to in Section 283 of the Civil P. C..

(2.) The Subordinate Judge has pointed out that in certain cases decided by the Allahabad, Madras and Bombay High Courts, a suit of this kind has been held to be one coming under Art. 17, Schedule II of the Court Fees Act and therefore subject to a Court-fee duty of Rs. 10 only. He has, however, followed two rulings of this Court, viz., Ahmed Mirza Saheb v. Thomas (1886) I.L.R. 13 Calc. 162 and Modhusudun Koer V/s. Rakhal Chunder Roy (1887) I.L.R. 15 Calc. 104, according to which a suit of this nature is one in which consequential relief is prayed for and therefore subject to an ad valorem Court-fee duty.

(3.) The learned pleader, who appears for the appellant, has invited us to come to the conclusion that the above cited rulings of this Court are erroneous and to refer the question of the Court-fee duty payable on such a suit to a Full Bench with the view of having the decisions in these two cases set aside. We do not see any necessity to adopt this course. The earlier of these two cases only followed the still older decision of Mufti Jalaluddeen Mahomed V/s. Shohorullah (1874) 15 B.L.R. Ap. 1 : 22 W.R. 422; so that the rule of this Court on the subject is one of very many years standing. Moreover, in this case the plaintiff seeks not only for a declaration of her right, but for the grant of a perpetual injunction restraining the sale, as the property of defendant No. 2, of the property she lays claim to. Hence, she would seem to us to seek for more than a mere declaratory decree and the suit comes within the purview of the Full Bench decision of the Allahabad High Court in Ram Prasad V/s. Sukh Dai (1880) I.L.R. 2 All. 720 which seems to have been overlooked in some at least of the later cases decided by the Allahabad High Court, which are cited in the Subordinate Judge's judgment.