MAHABIR PRASAD SARAOJI Vs. MTJAIDAYI BIBI

JUDGEMENT

(1.) This Rule has been secured by the plaintiff in respect of the order of the Special Subordinate Judge of Ranchi requiring him to pay court-fees under Section 7(iv)(c), Court-fees Act, ad valorem on the value of the suit under Section 8, Suits Valuation Act. The plaintiff contends that the court-fee payable is only Rs. 15 as upon a declaration and as paid by him and that the lower Court has acted with material irregularity in the exercise of its jurisdiction in coming to a contrary decision. The opposite party contends, first, that this Court has, in the circumstances, no power to interfere in revision and further that, even if it possessed such power, the order is correct in law. The declaration sought by the plaintiff (and it was the only relief claimed in the plaint) is: That it be declared that the plaintiff is the adopted son of Nandlal deceased and defendants 3 to 5 are trustees holding the properties of the deceased Kedarmall in trust for the plaintiff who is the sole owner of the properties described in Schedule 2 hereunder.

(2.) The learned Subordinate Judge has come to the conclusion that in any event the three parts of this declaration are distinct from each other and plaintiff must pay separate court-fee, so that there was a deficit of Rs. 30. This view is substantially not contested by the petition. The learned Subordinate Judge, however, went on to hold generally and especially in view of the fact that the plaintiff about the same time when he filed his plaint, sought a temporary injunction (and indeed actually secured an ad interim injunction) under Order 39, B. 1 and Section 7, Civil P.C. to prevent waste, damage or alienation of the properties in suit and to preserve the same till the disposal of the suit, that the plaintiff had in effect claimed the relief of confirmation of possession and that by putting: his relief in the form of a declaration he could not avoid the provisions of Section 7(iv)(c), Court-fees Act, under which his claim fell. Reliance is, as usual, placed on the observations of Jenkins, C.J., in Deokali Kuar V/s. Kedar Nath (1912) 39 Cal 704. The petitioner would reply that the suit for declaration is tenable even if it may obviously have to be dismissed later on under the provisions of Section 42, Specific Belief Act.

(3.) The question whether interference in revision is at all permissible in cases of this kind and whether if it is, it is restricted to cases which relate to category only and not merely to quantum of court-fee, has frequently been discussed in this Court, and there is some conflict in the decisions as to whether a mistake in respect of category would be a sufficient foundation for jurisdiction under Section 115, Civil P.C. But the bar cannot indicate, and I have been unable to discover that on any occasion there has been any interference with the order of the Court below except in Banke Behari V/s. Rambahadur 1918 Pat 131, the decision in which is specifically disapproved in subsequent rulings. In other decisions where interference in revision has been adjudged to be legal, it is held to be proper only where there is no other remedy available to the plaintiff and where irreparable loss would be caused if the High Court did not intervene at that stage. Now, even if the present application falls within the category of cases with which Section 115 is concerned, there is certainly another remedy, that is to say, by appeal if the suit is dismissed, and there is nothing to show that irreparable loss will be caused to the plaintiff if the order to pay court-fee under Section 7(iv)(c) is not set aside. But further I am unable on the materials presented to hold definitely that on the view taken by this Court the decision of the Special Subordinate Judge, on the amount of the court-fee due on the petitioner's obscure, and perhaps deliberately obscure, plaint, or the category within which the case falls, is erroneous. The Rule is discharged with costs. Pleader's fee one gold mohur. Let the record go down forthwith.