VALLI ISE AMANJI Vs. MAHMAD ADAM ASMAL

JUDGEMENT

(1.) IN this case we are of opinion that the order of the District Judge is wrong and must be reversed. The suit was brought in 1911, and there was a reference to a Commissioner in regard to the value of the houses and sites claimed in the suit for the purposes of Court-fees. The Commissioner reported unfavourably to the plaintiffs, who, however, did not accept the report and obtained a further enquiry by the Court. Ultimately the Court adopted the Commissioner s valuation with some modification and directed the plaintiffs, if they wished to continue the suit, to pay the required additional Court-fee. They were given a month in which to pay that Court-fee. They failed to do so. The Court then acting under its powers under Section 10 of the Court-fees Act dismissed, the suit. The dismissal of the suit was of importance to the defendant, because it had only been filed just before the period of limitation elapsed for a suit of that nature, and any suit filed subsequently to the order of dismissal would be barred. From the order of dismissal an appeal was preferred to the District Judge on the ground that the lower Court had misused its discretion in rejecting the plaintiffs application for further time, that is to say, time beyond the 13th February 1913. The learned District Judge, however, thought that the discretion was wisely used. So then, as far as the exercise of discretion goes, both Courts were of the same opinion. The learned District Judge, however, thought the order should have been in the form of rejection of plaint under Order VII, Rule 11 and that there was authority contained in Raghubans Puri v. Jyotis Swarupa (1907) I.L.R. 29. All to show that an option should have been given to the plaintiffs to abandon part of their claim and retain only that part for which they had paid a sufficient Court-fee prior to the 13th February 1913. We are of opinion that the Allahabad decision referred to does not justify the conclusion of the learned Judge, and we are not aware of any provision of law or any authority which shows that a plaintiff who has not properly valued his claim or paid a sufficient Court fee is entitled at the last moment to an option such as was allowed to him by the District Judge. The plaintiffs have only themselves to thank for the result of the case in the first Court. The defendants are entitled to rely upon the important benefit that they have obtained through the order of dismissal. We, therefore, set aside the order of the District Judge and restore that of the first Court dismissing the suit with costs. The plaintiffs must pay the costs throughout. The cross-objections are also dismissed with costs.