KRISHNA KUMAR RAY CHOWDHURI Vs. CHANDRA KANTA MITRA

JUDGEMENT

(1.) THIS is an appeal from a decree rejecting a plaint under the provisions of Order VII, Rule 11, Clause (c), Civil Procedure Code. We have not had the advantage of hearing any one for the respondent; but the facts appear to be as follows:

(2.) THE plaint is dated the 20th February 1914, and originally it bore a stamp of the value of Rs. 10. It is perfectly clear, however, as the learned Pleader for the plaintiff-appellant now concedes, that the suit is much more than a suit for a mere declaratory decree. THE learned Subordinate Judge, therefore, was perfectly correct when he decided by his order of the 7th March 1914, that the Court-fee paid was insufficient. That order, however, might have been to some extent misleading in regard. to the amount of the Court-fee that ought to have been paid. THE suggestion then made was that the plaint should have been stamped as if it was a plaint for the recovery of the property to which the suit related. THE plaintiff founding himself on that part of the order of the 7th March, put in an additional fee, the whole fee then paid being the proper ad valorem fee for a suit for the recovery of possession of the property. THEre is no doubt, however, that the fee payable in the present suit, a suit under Sub-clause (c), Clause 4, of Section 7 of the Court Fees Act, should have been computed under that section according to the amount at which the relief sought had been valued in the plaint. It is true that the plaint contains no valuation of the relief sought. In its paragraph however, a valuation of that suit is made for the purpose of jurisdiction; and under Section 8 of the Suits Valuation Act, the value for the computation of Court-fees ad the value for the purposes of jurisdiction are to be the same. THE learned Subordinate Judge, therefore, was again correct when by his order of the 21st March 1914 he refused to accept as sufficient, the additional fee which the plaintiff had put in. By that order, he gave the plaintiff a further week for the purpose of putting in the proper fee. THE plaintiff failed to carry out that order and on the 30th March 1914, the suit was dismissed by the decree under appeal. THE case is perhaps one of some hardship. In the first place, it may be that the plaintiff was originally misled by the form in which the order of the 7th March 1914 was drawn up. In the second place, the amount at which the suit was valued for the purposes of jurisdiction was possibly greater than the actual value of the relief sought. If that be so, however, the plaintiff should not have contented himself with a simple failure to carry out the Subordinate Judge s order, but should have asked for leave to amend the plaint. In the circumstances, the conclusions at which we have arrived is that we should set aside the decree of the learned Subordinate Judge and direct that the plaint be accepted, provided that plaintiff pays the Court-fee computed on the footing that the value of the relief sought is six thousand rupees, within fourteen days of the receipt of the record by the Court below. If the deficit fee is not paid within that time, this appeal will stand dismissed.