BIMALA PROSAD MUKERJI Vs. LAL MONI DEVI

JUDGEMENT

(1.) The plaintiff filed a plaint in the Court of the Subordinate Judge of Alipur on the 2nd October 1920. After litigation up to the High Court it was decided that that Court had no jurisdiction to try the suit and the plaint was returned for presentation to the proper Court on the 31 October 1922. The plaintiff then filed it before the Subordinate Judge of Burdwan on the 14 November 1922. The question that arises in this Rule is "what Court-fee should be paid by the, plaintiff?" The lower appellate Court hag held that he should pay Court-fees in accordance with the amended Court-fees Act, which came into force on the 1 April 1922, after deducting the Court fees already paid.

(2.) For the plaintiff, the petitioner before us, it is contended that the Court-fee originally paid is sufficient. On behalf of the opposite party, the defendant, who appeared in this Rule, it is contended that the plaintiff should pay the Court-fee under the amended Act without any deduction for the cancelled Court fee stamp on the plaint that was originally filed. We think that the learned Subordinate Judge is right in holding that the Court-fee payable is that payable under the new Act after crediting the plaintiff with the Court-fee originally paid. The question as to the plaintiff being entitled to be credited with the Court-fee paid has been decided by Full Benches of the Madras and Bombay High Courts. No case of this Court clearly in point has been pointed out to us, but our experience is that the practice in this province is the same as in the other provinces, and we think that the Rule laid down in those cases should be followed.

(3.) As to the Court-fee payable it is undisputed that the Court-fee should be leviable under the law which was in force at the time when the suit was instituted.