SUDALAIMUTHU PILLAI Vs. PERIA SOMASUNDARAM PILLAI

JUDGEMENT

(1.) THIS is an application under Section 115, Civil Procedure Code to revise an order passed by the Additional Subordinate Judge of Tinnevelly declaring that ad valorem Court fee on Rs. 11,000 was payable on the plaint presented to him by the petitioner before me in this Court. The plaint was one under Section 92 of the Code and in the plaint he asked that the defendants should be made to refund to the trust the sum of Rs. 11,003 at which figure he estimated the amount misappropriated by them. He also asked that certain properties in the possession of the defendants should be handed over to the new trustees to be appointed under the scheme to be framed by the Court, and these properties were valued at Rs. 90, at 5 times the annual assessment of the lands described in the schedule. The figure 11,000 was arrived at in this manner. He actually paid a stamp duty only of Rs. 10 on the plaint as for a declaration and urged that the other reliefs which he claimed in the plaint were not capable of valuation because he was not asking that the property should be handed over to himself and because he claimed no beneficial interest in those reliefs. The Subordinate Judge held that the plaintiff was bound to pay Court fees on those reliefs as they formed part of the subject- matter in dispute. It seems to me that this view is not correct. The plaintiff does not claim any beneficial interest in these sums but only says that on going through the accounts a sum which he estimates at Rs. 11,000 would be found due by the trustees to the trust and that the trustee should be asked to make good to the trust itself that amount of money and hand over possession of the immovable property. In such a case we cannot treat those reliefs as being part of the subject- matter in dispute between the parties; they are merely ancillary reliefs. The case is covered by the ruling in Ramrup Doss V/s. Mohant Siyaram Das (1910) 12 C.L.J. 211. I respectfully follow the view taken in it by the learned judges of the Calcutta High Court. No doubt as pointed out by the Suboidinate Judge there is an observation in Srinivasa V/s. Venkata (1888) 11 Mad. 148 that if damages on account of misappropriated moneys are claimed Court fees will have to be paid on such amounts. But these observations were unnecessary for the purpose of disposing of that case and were only obiter dicta and therefore I do not think that I am bound by those observations. It would be a hardship to worshipper who brings Buit under Section 92 in order to see that the trusts are properly carried out and that the trustees do not misappropriate the moneys belonging to the trust or abuse the trust, to have to pay Court fees upon such a large sum of money. It will practically prevent them from bringing such suits. I am therefore inclined to think that this Court should take a lenient view as regards Court fees with reference to claims of this sort. As it seems to me that the relief claimed clearly falls under Art. 17(6) of the 2nd schedule to the old Court Fees Act, which was in force when the plaint was filed and there is no reason why the plaintiff should not be allowed to file the plaint on a ten rupees stamp. The view taken by the Calcutta High Court in the case above quoted seems to me to be the proper view. My attention has been drawn to Omrao Mirza V/s. Jones [1884] 10 Cal. 599 but that case was not one under Section 92 BO far as can be gathered from the report. If it is supposed to lay down a rule which is in conflict with the ruling in Ramrup Doss V/s. Mohant Siyaramdoss (1910) 12 C.L.J. 211, I think we should prefer to follow the later decision of the Calcutta Court. Omrao Mirza V/s. Jones [1884] 10 Cal. 599 was cited to the learned Judges in Ramrup Doss V/s. Mohant Siyaramdoss (1910) 12 C.L.J. 211 as appears from the arguments of the council before them, but no reference is made to it in the judgment. Thakuri V/s. Brahma Narain [1896] 19 All. 60 has also been brought to my notice but it is easily distinguishable. In fact in that case the learned Judges held at page 63 that Court fee need not be paid upon any claim for damages as part of the account asked for under Section 92 and they distinguish the cases in Keproos Banoo Begum V/s. Ashgur Ally Khan [1875] 15 Beng. L.R. 167 already referred to. They, no doubt, say that if a prayer for an injunction against interference was added and if that is valued, Court fee ought to be paid for it. Whether that portion of the decision is correct or not it is not necessary for me to say, for there is no such claim put forward in this case. The Subordinate Judge has referred to 37 M.L.J. 447. But there does not seem to be any case in that report, having any bearing; there is clearly some error here. With reference to the new Court Pees Act, there is a clear ruling by Venkatasubba Rao, J. in Ramanvja Naidu V/s. Alagappa Chettiar A.I.R. 1924 Mad. 882 in which he held in a case exactly similar to the present that a single Court fee of Rs. 50 only need be paid; I should have been content merely to follow that case in deciding this case, had it not been for the fact that this case arises not under the new Act but under the old Act. It seems to me that the tendency has been in such cases to hold that a Court fee of Rs. 10 is sufficient and the Legislature has now made it clear that extra Court fees are not payable even though claims are made for accounts to be taken and for moneys to be paid for by the defaulting trustee to the trust fund if he had misappropriated them, I hold that the Court fee of Rs. 10, paid on the plaint is sufficient in this ease.

(2.) IT was also argued that whatever might be my opinion in the case, I should not interfere in revision as the parties have another remedy by way of appeal to the proper appellate Court if the plaintiff refuses to pay the Court fees and gets the plaint rejected. No doubt, there is such a remedy. But it seems to me to be a cumbrous remedy, for if the plaint is rejected he will have to pay the same stamp duty on appeal. IT has been the practice of this Court to interfere in this class of eases in revision and set the matter right, so that no further trouble might arise. No conflict of opinion in this Court on this point has been brought to my notice, although it is true that the Patna High Court has taken a different view. In the case in Chandramani Koer V/s. Basdeo Narain Singh (1918) 4 Pat. L.J. 57 the main argument was that the cursus curiae of that High Court had been not to interfere under Section 115 in cases of this sort. But in this Court cursus curiae Las not been in that way at all. Therefore the argument loses much of its force in this Court. IT seems to me that it is open to this Court to interfere because the question is really one of jurisdiction as the plaint has to be rejected if the stamp duty is not paid. I am also of opinion that it is desirable that under Section 115, C.P.C. we should interfere and not leave the patty to his remedy by way of appeal. I am therefore inclined to interfere under Section 115 in this case and I do so. The Civil Revision Petition is allowed and the order of the Subordinate Judge is set aside and he is directed to take the suit on his file on the stamp of Rs. 10 already paid, and dispose of it according to law. Costs of this petition and costs in the lower Court will be dealt with by the Subordinate Judge in his final order.