DUGGEMPUDI RAMAKRISHNA REDDI, MINOR BY NEXT FRIEND AND MATERNAL GRANDFATHER GADEY PEDA VENKATA REDDY Vs. DUGGEMPUDI VEERAREDDI

JUDGEMENT

(1.) This second appeal arises out of a suit for partition filed by the appellant claiming a third share in the family properties. The suit was at first filed against two defendants, first defendant being the father and the second defendant being the brother of the plaintiff. The third defendant was later on added on the ground that that he was an alienee of item 6 of the plaint properties from the father, the first defendant. The Subordinate Judge then raised an additional issue whether the plaintiff can claim any relief in respect of item 6 of A schedule without having the sale set aside and whether the court-fee paid is correct. He held that the sale ought to be set aside and that court-fee should be paid on the value of item 6. This item was valued in the plaint at Rs. 1,012 and therefore the Subordinate Judge called upon the plaintiff to pay an additional court-fee of Rs. 119-15-0. Time was given till the 23 December, 1943, for payment. Plaintiff took time for payment till the 30 December. The Subordinate Judge did not attend Court on that day and the case was posted to the 10 January, 1944. On that day instead of paying the deficit court-fee, the plaintiff filed a memorandum giving up the third defendant and the sixth item of the A schedule property and said that he would go on with the suit as regards the other items which were admittedly in the possession of defendants 1 and 2 and as to which there was no trouble about the valuation. The Subordinate Judge held that the plaintiff was not entitled to relinquish any portion of his claim without filing a petition for amendment of the plaint and that as no such petition was filed he had under Order 7, Rule 11, Civil Procedure Code, no option but to reject the plaint. He therefore dismissed the entire suit. On appeal the District Judge has confirmed the decree of the trial Court agreeing that : When the withdrawal of a part of the claim is not accompanied by a petition to amend the plaint, the plaint remains at large as a document on which the required court-fee has still to be paid.

(2.) The District Judge recognised that under Order 23, Rule 1, the plaintiff may at any stage withdraw his suit or abandon part of his claim and that he can do so without the leave of the Court, but he held agreeing with the trial Court that until the plaint is amended by a petition filed for that purpose, the plaint remains at large as a document on which the required court- fee has still to be paid and that Order 7, Rule 11 compels the Court to reject the entire plaint. I am unable to agree. Under Order 23, Rule 1, Civil Procedure Code At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or-abandon part of his claim,

(3.) No permission of the Court is necessary for this purpose, He has only to intimate to the Court that he withdraws the suit against all or any of the defendants or that he abandons a part of his claim. The plaintiff intimated to the Court that he withdrew the suit against the third defendant and that he abandoned his claim to item 6 of the plaint A schedule. It is difficult to see what else is necessary to take item 6 and the third defendant out of the plaint. It is too much of a techni-cality to say that it must be in the form of an application for amendment of the plaint. No authority has been cited in the judgments of either of the lower Courts in support of the position that an application for amendment must first be made before the plaint can be treated as restricted to the other defendants and the other properties. The trial Judge relied upon the decision in Midnapore Zamindari Co., Ltd. V/s. Secretary of State for India (1916) I.L.R. 44 Cal. 352, in support of his conclusion. There the plaint was rejected by the trial Court when after being required to supply the deficit court-fee, the plaintiff failed to do so. An appeal was taken to the High Court and it was first urged that the valuation as given in the plaint was correct and that no further court-fee could be demanded. The Judges seem to have expressed the opinion during the course of the arguments that the position taken up was Untenable. Then in the course of the arguments the appellant's counsel prayed for permission to have a particular prayer struck off and for restoration of the suit. It is in respect of that prayer that additional court-fee was required. The learned Judges first dealt with the question whether the plaint as it stood required the additional court-fee and they decided that it did. Then they dealt with the request made by the appellant's counsel to strike off the particular prayer which led to the trouble. They pointed out that at the stage when the matter came before them, there was no longer any plaint and that it had already been dismissed by the trial Court. It is under those circumstances that the learned Judges refused to allow the appellant's request to strike out the particular paragraph. They first pointed out that the trial Judge rightly came to the conclusion that the plaint was written on paper Insufficiently stamped and that the plaintiff on being required by the Court to supply the requisite stamp paper within the time fixed by the Court, failed to do so. They pointed out that, therefore, the trial Judge had no other alternative except to reject the plaint, in accordance with the terms of the rule. In fact they said that the trial Judge had no other alternative except to reject the plaint. Then dealing with the request for striking out the prayer at the stage of the appeal, Sanderson, C.J., said this: In my judgment he ought not to be allowed to do so for the reasons I have already given and this Court has no more power than the learned Judge when it is shown that the case comes within Order 7, Rule 11. this Court has no jurisdiction, the provision is mandatory, and this Court, just the same as the Court below, is bound by that section which provides that under the above-mentioned circumstances the suit shall be rejected.