GANESH TAVANAPPA BURDE Vs. TATYA BHARMAPPA MIRJI

JUDGEMENT

(1.) The plaintiff in this case sued to recover possession of the property with past and future mesne profits and costs in the Subordinate Judge's Court of Hukeri. Thus defendant contended that the market value of the property in suit was more than Rs. 5,000 and that the Hukeri Court had no jurisdiction to try the suit. On April 14, 1924, the Hukeri Subordinate Judge held that the market value of the subject-matter in suit was more than Us. 5,000 and therefore the Court had no jurisdiction to try the suit and directed the plaint to be returned for presentation to the proper Court. The plaintiff appealed against this order and the learned District Judge hold that the best order to pass was to follow the directions of Section 10 of the Court Fees Act. He, therefore, vacated the order of the trial Judge and instead of that he passed the following order :- Plaintiff do within a fortnight of the reaching of the Record in the trial Court amend the plaint by showing the market value of the house to bo Rs. 5,397 and paying the deficient Court fee on the plaint. If that amendment is not made and the deficiency of the Court fee is not made good within that time, then the suit shall stand dismissed. If it is so made, then the plaint shall be returned for presentation to the proper Court.

(2.) Application No. 312 of 1925 has been filed against this order. On August 7, 1925, the plaintiff paid the deficient Court fees, but the Subordinate Judge of Hukeri dismissed the suit on August 8, 1925, on the ground that the District Judge had given only a fortnight's time to make good the deficient Court fees and as the plaintiff did not amend the plaint and pay the deficient Court fees stamp on August 6, 1925, he had no other recourse but to dismiss the suit. Against this order application No. 311 of 1925 has been filed in this Court by the plaintiff. Mr. Desai for the plaintiff contended that the only Court which could pass the order dismissing the suit under Section 10 of the Court Fees Act was the Court having jurisdiction, and that, under Order VII, Rule 10, of the Civil Procedure Code, it was the imperative duty of the Court to return the plaint for presentation to the proper Court. Under Order VII, Rule 11, the plaint shall be rejected if the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so. Order VII, Rule 11, may apply to the initial stage of the suit before the plaint is registered, and Section 10 of the Court Fees Act may apply to a subsequent stage of the suit. But I think that the Court which can dismiss the suit for non-payment of the Court fees within time is a Court which has jurisdiction to dismiss the suit. If the plaint was returned for presentation to the proper Court the plaintiff could take advantage of the Court fees that had been paid on the previously filed plaint and he could pay the deficient Court fees in the Court having jurisdiction to hear the case. There was a doubt entertained for some time under the old Civil Procedure Code whether a plaint should not be returned before it was registered or whether it might be returned at any stage of the suit The Bombay High Court took the view which is now embodied in Order VII, Rule 10, that the plaint may be returned at any stage of the suit. The Full Bench decision of the Bombay High Court in Prabhakarbhat V/s. Vishwambhar Pandit, (1884) I.L.R. 8 Bom. 313, F.B. says (p. 317):- Where a Court fee on the institution of a suit has been paid in a Court which cannot possibly afford the relief sought, it does not seem consistent with sound principle that the plaintiff should be condemned to lose the fee thus paid, or that he should not be allowed to ask without paying a second fee for an adjudication from a Court which can really give one.

(3.) These remarks show that, according to the prevalent practice consonant with justice, the plaintiff should be allowed to pay the deficient Court fees in the Court which has jurisdiction to hear the case and he should get credit for the Court fees which have been previously paid. This view has been accepted by the Madras High Court in Visweswara Sarma V/s. Nair (1911) I.L.R. 35 Mad. 567 where it was held that:- Where a Court after receiving a plaint and cancelling the stamp affixed thereto returns the plaint for presentation to the proper Court under order 7, Rule 10, of the Civil Procedure Code of 1908 the latter Court to which the plaint is re- presented is bound to give credit to the fee already levied by the former Court.