KAILASH NARAIN Vs. GOPI NATH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for obtaining a declaration. The facts of the case may be stated as follows : Babu Kailash Narain, plaintiff, is the son of Babu Bankey Lal. He instituted a suit to obtain a declaration that decree No. 5 of 1928 of the Court of the Subordinate Judge of Etawah, Gopi Nath and Anr. v. Bankey Lal and Anr. passed on 27 February 1928 and obtained by the defendants cunningly, fraudulently and dishonestly against him ex parte was null and void, illegal, ineffectual and unenforceable. The plaintiff his plaint alleged that during his minority he had been living with his maternal uncles, that during that period his father Bankey Lal started an altogether new business in the name of Bankey Lal Kailash Narain at Etawah, that the entire business was carried on by Bankey Lal on his own responsibility and that the plaintiff had nothing to do with it. It was further alleged in the plaint that according to law the plaintiff's father had no right to start any new business with the aid of the ancestral assets, nor was that business started with his agreement. It was therefore contended that the plaintiff could in no way be liable for any losses in connexion with the aforesaid business. The case of the plaintiff was that the decree was prejudicial to his right. It may be remarked that the plaintiff filed the plaint on a court fee of Rs. 10 only. It appears that the munsarim of the Court made a report to the presiding officer pointing out that the court-fee paid was insufficient and that the plaintiff was liable for payment of the ad valorem court-fee. Upon this the plaintiff made an application on 28 February 1931, giving his reasons why, according to him, the court-fee paid by him was sufficient. We may refer only to one of the clauses in this application where it ia stated: That the plaintiff does not want cancellation of the ex parte decree in Suit No. 5 of 1928 which may stand as it ia against the assets of the firm Bankey Lal Kailash Narain, and even against the other joint family property, if any. All what he wants is, that in a new trade started by the manager, as distinguished from ancestral business, there can be no personal liability on the minor co-parcener, and a declaration to that effect only does never mean a cancellation of the ex parte decree No. 5 of 1928.

(2.) The learned Judge of the Court below was of opinion that the plaintiff was liable for payment of ad valorem court-fee and he therefore fixed a time limit within which the plaintiff should pay the additional court, fee. The plaintiff however did not comply with that order and the Court therefore rejected the plaint. The plaintiff has come up to this Court in appeal against that decision of the learned Subordinate Judge. The principal question for consideration in this appeal is whether the court-fee paid by the plaintiff was sufficient or whether he was liable for payment of the ad valorem court-fee. In oases of this description two questions often arise and in order to avoid confusion it is very necessary that they should be distinct and apart from each other.

(3.) There are oases in which the plaintiff makes up his mind beforehand that he is not going to claim further relief and he deliberately so frames his suit as to avoid asking for further relief. In a case of that description all that the Court has to see is whether on the allegations set forth in the plaint the suit is one for a mere declaration or it is a suit for a further relief plus a declaration though the real nature of the claim ia concealed. In cases of this kind the plaintiff is certainly entitled to institute a suit for a mere declaration and he can say to the Court that as no further relief is claimed by him the court-fee paid by him is quite sufficient. This point has been made clear by a recent Pull Bench decision of this Court in Bishan Sarup V/s. Musa Mal to which one of us was a party. It was laid down in that case that where a plaint is so worded as to disclose a suit falling either under Section 39 or Rule 42, Specific Relief Act, it is not open to the Court to treat the suit as one falling within the purview of Section 39, Specific Relief Act, if the plaintiff desires it to be construed as one under Section 42, Specific Relief Act. The case definitely decides that it is not the function of the Court in a case like this to insist that the plaintiff should seek further relief. The plaintiff is entitled to frame a suit in any manner he likes and there is no duty cast upon the Court to give him advice that unless he seeks further relief his suit may not be successful. The plaintiff takes the consequences of his selection and he runs the risk of his suit being dismissed if later on it is found by the Court that the case was one in which a further relief should have been asked by the plaintiff. The provisions of Section 42, Specific Relief Act, would then be applicable to the case and the Court will refuse to grant a declaration to the plaintiff because he had failed to ask for further relief to which he was entitled. Another question which arises in cases of this kind and which should be kept distinct from the question referred to above is whether the Court can go into the question of insufficiency or otherwise of the court-fee by looking into the allegations in the plaint. In Bishan Sarup V/s. Musa Mal it has been laid down that the Court is fully competent to go into this question. In this connexion it is important to bear in mind the provisions of Section 6, Court- fees Act, which enacts that: Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in Schedule 1 or Schedule 2 to this Act annexed, shall be filed, exhibited or recorded in any Court of justice, or shall be received or furnished by any public officer unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.