KRISHNA MOHAN CHOWDHURY Vs. GOUR SUNDAR CHOWDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the District Judge of Chittagong, confirming a decision of the First Subordinate Judge. The facts necessary for the understanding of this appeal are as follows: The present plaintiff in the year 1914 commenced a suit for partition and his brother who was a party in that suit filed a written statement. At this stage friends of the parties intervened and the plaintiff's case is that he was induced by misrepresentations to sign a solenama compromising the matters in this suit. Then the plaintiff commenced the suit out of which this appeal arises and in this suit he asked for a declaration that the decree based on the solenama filed in the partition suit might be declared null and void and inoperative as having been obtained by undue influence, coercion and fraud. This was what the plaintiff asked for in this suit and he asked for nothing else. When the matter came before the First Subordinate Judge of Chittagong he said without taking any evidence that such a suit would not lie having regard to the provisions of Section 42 of the Specific Belief Act and he also stated that the suit was not properly valued the suit having been filed on a Court-fee of Rs. 10. Against this decision an appeal was preferred to the District Judge and he stated that) the appeal was not maintainable having regard to the fact that only a Court-fee of Rs. 10 had been paid and he referred to the provisions of the Court Fees Act. It seems to us that the decisions of both the Courts were wrong. It was not, we think, having regard to the decision in Gokul Nath Jiu V/s. The New Birbhum Coal Co. Ltd. A.I.R. 1924 Cal. 183, open to the first Court to say that the suit did not lie without going into the facts and considering the relief that was asked and this being so, it was not open to the lower Appellate Court to dismiss the appeal, upon the ground upon which it was dismissed. It may be, as the respondents contend, that it will ultimately be found that the suit does not lie as a mere declaration will not suffice. But this is a matter that has to be decided after the facts have been ascertained and the Judge is in a position to deal with the point upon the facts as ascertained. The appellant before us contends that no consequential relief is necessary. He may be right or he may be wrong but it appears to us that it is impossible for the Court to decide the matter as the first Court purported to decide it without ascertaining the facts.

(2.) In the circumstances, we allow the appeal and the matter must go back to the first Court in order that the suit may be registered and dealt with on its merits. After that has been done if an appeal results it will then be possible to say whether a second appeal lies or not or whether having regard to the value of the suit there should be a first appeal to this Court, if appeal there be.

(3.) The appellant will be entitled to his costs in this Court. Costs of the lower Appellate Court will abide the result. Chakravarti, J.