MT SAIYADUNNESSA KHATUN Vs. GAIBANDHA LOAN CO LTD

JUDGEMENT

(1.) This is an appeal by the plaintiffs and it arises under the following circumstances: The suit was for setting aside a certificate sale held by the Collector for arrears of cess on the allegation that the sale was fraudulently brought about by defendant 1 in collusion with the peons of the Collectorate. There is a further prayer that if the Court should decide that the sale is not liable to be set aside, a decree may be passed directing defendant 1 to return the properties to the plaintiffs or, failing that, to pay a sum of one lac of rupees to the plaintiffs as compensation. Para. 8 of the plaint runs thus: For the purposes of the jurisdiction of this Court this suit is valued at Rs, 1,00,000 and the property in suit being a revenue-paying Mahal this plaint in this suit ia filed by paying a court-fee of Rs. 1,020 on Rs. 15,505-5-0 as being ten times the revenue thereof amounting to Rupees 1,550-8-6 per year under Section 7; Clause (v), Court-fees Act.

(2.) Thereupon the question of adequacy or otherwise of court-fees came up for decision and was considered by the Subordinate Judge in his order dated 17 May 1934. He decided that the governing factor should be the larger relief asked for, which in this case was the alternative prayer for payment of one lac of rupees, and he accordingly directed the plaintiffs to pay court-fees on one lac of rupees. On 31 May 1934 the plaintiffs put in a petition praying for time to file the balance of the court-fees as ordered and three weeks time was allowed till 21 June 1934. On that date the plaintiffs, instead of paying the balance of court- fees, filed a petition for amendment, which is printed at p. 36 of the paper-book. The prayer was that they should be allowed to value their alternative claim for compensation at present on Rs. 16,000, and if after hearing they are found to be entitled to additional compensation then they pray that they may be allowed to get a decree for that excess amount by paying additional court-fee thereon; and they asked that the prayer Kha of the plaint might be amended accordingly. The order which the Subordinate Judge passed upon this petition on 21 June 1934 does not show that he considered the prayer on its merits, but it is also clear that he understood that the prayer was to reduce the amount of compensation. The order runs thus: In this case plaintiffs relief in the suit was for possession of the property or compensation to the extent of one lac of rupees. The Court held that the larger of the two reliefs would determine the value of the stamp and asked the plaintiffs to supply the requisite stamp paper on one lac of rupees within a certain time. The plaintiffs pray today for amendment of the plaint by reducing the amount of compensation. In view of the decision in Midnapore Zemindari Co. V/s. Secy, of State AIR 1917 Cal 77,I think the prayer for amendment cannot be allowed. The petition is therefore rejected.

(3.) Upon that the plaintiffs filed a petition praying for further time to file deficit court-fees, but this was rejected. Thereupon as the plaintiffs did not take any further steps, the plaint was rejected on 23 June 1934. Against that order this appeal has been filed. The contention for the appellant is that the learned Judge below was wrong in thinking that in the present case he was bound by the decision in Midnapore Zemindari Co. V/s. Secy, of State AIR 1917 Cal 77, and that what the plaintiffs were asking for by the aforesaid petition of 21 June 1934 was to abandon a part of their claim, which they are entitled to do at any time after the institution of the suit under Order 23, Rule 1, Civil P.C. Mr. Gupta for the respondent-defendant 1, on the other hand, has contended that the decision in Midnapore Zemindari Co. V/s. Secy, of State AIR 1917 Cal 77 governs the facts of the present case. In that case, a court-fee of Rs. 10 was paid in a suit purporting to be under Section 111.A, Ben. Ten. Act, but the plaintiffs prayed for the declaration (a) that they were occupancy raiyats, and (b) that the entry in the Record of Rights, showing them as tenure-holders, was a nullity; the plaintiffs, on being required to supply the deficit court-fee on the second relief claimed, failed to do so within the time fixed by the Court and so the plaint was rejected under Order 7, Rule 11, Civil P.C. Thereupon, at the time of the argument before the High Court, the Advocate for the appellants prayed for permission to have that prayer struck off and for restoration of the suit. The judgment of Sanderson, C.J. shows that the Court agreed with the decision of the Judge below and held that he had no alternative but to reject the plaint under Order 7, Rule 11. Turning to the suggestion made in the High Court for permission to have the prayer for consequential relief struck off, Sanderson, C.J. remarks as follows: The learned counsel who appeared on behalf of the plaintiff asked this Court to give the plaintiff leave to amend his plaint by striking out para, (b) of Clause 11 in his plaint. 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.