SUBRAMANIA AIYAR Vs. VRAMA AIYAR

JUDGEMENT

(1.) This is an appeal against the order of the Additional Subordinate Judge of East Tanjore at Mayavaram dismissing O.S. No. 40 of 1921 on the ground that the proper court-fee has not been paid. The order rejecting the plaint could have been passed only under Order 7, Rule 11, Civil Procedure Code. The suit was brought by the plaintiff claiming to be the reversioner, under the Hindu Law, of one Ramaswami Aiyar and he claimed the property after the death of his widow and his daughters. The plaintiff is his daughter's son. The suit was filed on the last day allowed by the law of limitation. To some extent this fact seems to have prejudiced the Subordinate Judge against the plaintiff. While we have no particular sympathy with a stale suit, I do not see any reason why one should be prejudiced against the plaintiff on that ground. The plaint was presented on 28 August, 1920. It was returned by the office with four requisitions. The fourth is "valuation has not been given in respect of all the properties described in the plaint schedules." This was on the 30 August. The plaintiff's pleader re- presented the plaint on 7 September with the note "Those mentioned in the lots have been amended. Re-presented after amendment." It is now admitted that the first three requisitions have been satisfied, but it is urged for the respondents that the fourth was not. I will discuss this point later on. The office was, however, satisfied with the re-presentation and a note was made "Stamp correct; plaint may be filed." The plaint was then numbered and notices were issued to the defendants. In the written statement a plea was taken that "the court-fee paid is not correct. The court-fee should have been paid in respect of the suit properties on their market value." An issue was framed, "Has proper court-fee been paid on the plaint?" and the suit was adjourned. Before it came on for trial on 30 March, 1922 there was a petition by the defendants under Order 7, Rule 11, raising various objections to the valuation and the payment of court-fee made by the plaintiff, and a counter-petition was filed; and the petition was posted to 26 April. On that day the plaintiff wanted a commission. So the case was adjourned to 20 July. On 20 July the plaintiff said that he did not want the commission and that he would adduce evidence. The matter was adjourned to 10 August. On that day some arguments were heard. The same day the plaintiff filed a petition for amendment. The amendment was refused and the plaint was rejected on 21 August.

(2.) Under Order 7, Rule 11, a plaint cannot be rejected unless the plaintiff is given an opportunity to correct the valuation within a time fixed by the Court where the relief is under- valued, or the plaintiff is given an opportunity to supply the requisite stamp paper within the time fixed by the Court where the plaint is filed on an insufficient stamp. It is contended by Mr. Bhashyam Aiyangar, vakil for the respondents, that Clause (b) applies and that an opportunity was given to the plaintiff to correct his valuation but he did not avail himself of the opportunity. In support of this contention he relies on the fourth requisition when the plaint was originally returned. The requisition itself does not show in respect of what property valuation was not given. No details were mentioned in it. The respondents vakil 110 doubt filed a list of details in the petition of 1922. This is list D, but there is nothing to show that these were the matters intended by the Court when the plaint was returned on 30 August, 1920. It is likely that they were not, because the plaint was accepted on re-presentation. It may be that, when there is a clear omission in the original plaint, and the Court demanded the plaintiff to rectify the defect and returned the plaint, and the plaintiff represented the plaint without rectifying it, the mere fact that the Court accepted the plaint overlooking the plaintiff's failure to rectify (foes not estop the Court from rejecting the plaint some time afterwards, though even then, such action on the part of the Court is undesirable. In the present case it cannot be said that there was any clear requisition by the Court. It was too general. Taking the matters in detail, in list D, the first objection is that certain items were omitted. The plaintiff accepted this objection and paid court-fee in respect of these three items, and he applied by I. A. No. 285 for permission to amend the plaint by adding these three items. But this is not an omission to value the items. The items themselves were omitted by a slip, and seeing that the suit was of some magnitude, for the plaintiff had admittedly paid court-fee on Rs. 10,000, such an amendment ought to be allowed. At any rate the matter does not come under Order 7.

(3.) The next objection is that some trees ought also to be separately valued. In so far as the trees standing on specific items claimed in the plaint are concerned, it is not necessary to value them separately. [Vide Kullappa Goundan V/s. Abdul Rahim (1916) ILR 40 M. 824.] They are included in the valuation of the items themselves. It was made according to the Court- Fees Act, namely, five times the assessment on the items. But it is said that there are some trees on poramboke lands. The plaintiff has made it clear that in respect of all porambokes, such as channel, burial grounds, etc., the only rights he seeks are rights accessory to ownership of plots in the village and not rights of actual ownership as in the case of specific cultivated plots. That being so, these trees need not be valued.