RAJ RAJESWARI JIU Vs. GATI KRISHNA CHAKRABARTI

JUDGEMENT

(1.) This appeal raises a question of some novelty and of considerable importance.

(2.) The plaintiff, who is the appellant in this court, instituted a suit for recovery of possession of land and mesne profits in the Court of the Second Munsiff at Midnapore. The subject-matter of the litigation was valued at Rs. 600 and court-fee was paid accordingly. The defendants objected that the suit had been undervalued and that, if properly valued, it would be found to be beyond the pecuniary jurisdiction of the court where it had been instituted. This point was investigated and on the 1 December, 1921, the Munsiff came to the conclusion that the value of the subject-matter of the litigation was Rs. 6,000. The result was that the plaint was returned to the plaintiff for presentation to the proper court. On the 21 December, 1921, the plaint was presented in the court of the Subordinate Judge at Midnapore; but notwithstanding the finding of the Munsiff, the suit was valued at Rs. 1,125 and court-fee was paid accordingly. The defendants objected that the suit had been undervalued. The objection was manifestly of vital importance from a two fold standpoint. In the first place, if the value of the suit was Rs. 6,000 instead of Rs. 1,125, the forum of a possible appeal would be the High Court and not the court; of the District Judge. In the second place if the value was Rs. 6,000 instead of Rs. 1,125, a considerable amount of additional court-fee would be leviable from the plaintiff. The suit was taken up for trial on the 14 September, 1922. The hearing lasted for three days and on the 16 September, 1922, the suit was dismissed on the merits. The judgment of the Subordinate Judge embodied a direction upon the plaintiff to pay the deficit court-fee. The parties are not agreed as to what happened at the trial and how this order came to be made. This much is clear that the court-fee demanded by the Subordinate Judge was not paid. The decree dated the 23 October, 1922, recited, first, that although the suit had been valued at Rs. 1,125 by the plaintiff, its value had been determined by the Subordinate Judge to be Rs. 6,000 and, seeondly, that the deficit court-fee had not been paid up to that date by the plaintiff. On the 3 February, 1923, the decree was amended in respect of costs. In the decree as originally drawn up, the costs had been calculated on the basis of a valuation of Rs. 1,125. The decree was amended, and costs were calculated on the basis of a valuation of Rs. 6,000. The decree further directed that separate costs would be paid to the different sets of defendants. The plaintiff, who was apparently satisfied with, the decree as originally drawn up, now found himself in a position of embarrassment and. on the 20 April, 1923, lodged the present appeal in this Court against the amended decree. The grounds were directed not to the merits but to the question of costs. The memorandum of appeal was valued at the difference between the original and amended costs and the court-fee was paid accordingly. The Stamp Reporter did not fail to notice the note made in the decree that the deficit court-fee had not been paid by the plaintiff; but the question could not be considered at that stage, because till the records were received, it could not be ascertained whether the amount due from the plaintiff had or had not been deposited in the lower court. On the receipt of the records, the matter has now been placed before us for orders. The appellant has urged that there is no provision of the law which entitles this Court to compel him to pay the deficit court- fee. The respondent has relied upon the provisions of Section 12 of the Court-Fees Act 1870. The first clause of the section provides that the decision of the trial court upon the question of valuation is final as between the parties to the suit. The second clause provides for the correction of error, if any, committed in this respect by the trial court. The second clause is in these terms: But whenever any such suit comes before a court of appeal, reference or revision, if such court considers that the said question has been wrongly decided, to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided and the provision of Section 10, paragraph ii, shall apply.

(3.) Paragraph ii of Section 10 provides that where in the opinion of the court, the valuation of the suit has been wrongly estimated and the plaintiff has consequently been required to pay an additional fee, the suit shall be stayed until the additional fee is paid. If the additional fee is not paid within such time as the court shall fix, the suit shall be dismissed.