RAM BHUSAN DAS Vs. BACHU RAI

JUDGEMENT

(1.) This is a petition for the civil revision of a decision of the Subordinate Judge of Darbhanga. The plaintiff began the present suit (Title Suit No. 85 of 1931), against the defendant on the following allegation: The plaintiff alleged that he was the Chela of a certain former Mahant of a certain Math; that the defendant had become the Mahant of the Math, but had taken a wife and on the contention of the plaintiff he thereby vacated the office of Mahant. He sought a declaration that he (the plaintiff), was the Mahant of the Math and was entitled to get possession of all the properties, and he further asked that after declaring the plaintiff's title the Court should give him possession of the properties of the Math which were specified in the plaint. He paid court-fees upon the plaint on the basis of Section 7, C1. (5), Court-fees Act. The defendant contested that the proper fee payable Was under Section 7, Clause (4)(c), saying that a declaratory decree or order had been claimed and that the decree for possession, which was asked for, was consequential relief.

(2.) The plaintiff, on the other hand, contended that it was a mere suit for possession and in any case notwithstanding that there was a claim for a declaration of title, the suit being substantially a claim for possession, Clause (5) of the section was applicable and the proper stamp duty payable was ten times the Government revenue. The decision of the learned Subordinate Judge was in favour of the defendant upon this point, and he held that the stamp fee must be paid upon the valuation of the relief sought. Accordingly, before the merits of the suit could be gone into, the plaintiff comes up to this Court for revision of the Subordinate Judge's order in the matter of the stamp fee payable.

(3.) A preliminary objection was taken that the process of revision does not lie in such cases and a number of authorities have been cited and it was said that there was a conflict of judicial opinion as to whether revision lay or not. In my opinion there is no such conflict and I would respectfully Agree with the view of the late Jwala Prasad, J., in the case of Mani Lal V/s. Durga Prasad 5 PLT 425, and particularly with his observations on p. 429: There is however no conflict in the principle underlying these conflicting decisions. That principle is that ordinarily an interlocutory order is not capable of revision, particularly when there is another remedy available to the injured party; but where the order complained against is such as is calculated to cause irreparable loss to the injured party and there is no right of appeal and no remedy available to the party, an interlocutory order may be revised under S.115, Civil P.C., read with Section 15, Charter Act ( Section 107, Government of India Act).