K MANAITHUNAINATHA DESIKAR Vs. GOPALA CHETTIAR

JUDGEMENT

(1.) This is an appeal from the order passed by the learned Subordinate Judge of Tiruvarur in O.S. No. 4 of 1937 directing the plaintiff to pay additional court-fees over and above the amount paid with the plaint. I have advisedly called it an appeal because that is what it really is though it purports to be a Revision Petition. The petitioner has no fault to find with the order of the learned Sub-Judge, except that on its merits it is wrong. I am clearly of opinion that this is not a matter falling under Section 115, Civil Procedure Code.

(2.) The suit was one for a permanent injunction to restrain the defendants from interfering with the plaintiff's joint possession of the suit properties as joint trustee and if necessary to put the plaintiff in joint possession of the office of trusteeship and of the properties described in the plaint. A contention was raised before the learned Subordinate Judge that the court-fee paid was not sufficient and issue 9 was framed in this form, "has proper court-fee not been paid?" The learned Subordinate Judge has examined the terms in which the plaint is cast and has discussed various cases and has decided that the plaint was insufficiently stamped. He has concluded that the suit was really a suit for a declaratory decree with consequential relief and if that be so his decision that the suit falls under Section 7 (iv)(c) of the Court-Fees Act is correct It is not contended before me that the learned Subordinate Judge had no jurisdiction to decide what was the proper court-fee. On the other hand learned Counsel for the petitioner has agreed that the learned Subordinate Judge had full jurisdiction to decide this matter. It has not been alleged either in the petition or in argument that the learned Subordinate Judge in the exercise of his jurisdiction to decide this question has acted illegally or with material irregularity. It is therefore impossible to bring this case within the terms of Section 115, Civil Procedure Code.

(3.) I have been referred to several cases in which I am told that learned Judges of this Court have interfered in circumstances similar to these. The only case decided by a Bench of this Court to which ray attention has been drawn is the case of Kulandai Pandichi V/s. Ramaswami Pandia Thalavan (1927) 55 M.L.J. 345 : I.L.R. 51 Mad. 664. In. that case Mr. Justice Kumaraswami Sastri and Mr. Justice Wallace held that where the lower Court passed an order directing the plaintiff to pay additional court-fees on an erroneous view of the court-fee payable, and refused to proceed with the suit unless such sum was paid, the High Court will entertain a revision petition to set aside the order, although an appeal would lie later on the consequential order that might be passed by the lower Court if the additional stamp duty was not paid. That case is clearly distinguishable from the one now under consideration. The learned Subordinate Judge has not in this case refused to proceed with the suit. He has decided what is the proper court-fee in his opinion and he has ordered the plaintiff to pay court-fees accordingly. In doing so he has done no more and no less than his duty. All that he has done in addition to this is to order on the 21 July, 1938, that the suit be called again on the 4 August, 1938, for the plaintiff to pay the deficit court-fees. I am unable to see in what way the learned Subordinate Judge can be said to have failed to exercise any jurisdiction in this case. He has not refused to proceed with the suit and therefore this case does not fall within the principle of Kulandai Pandichi V/s. Ramaswami Pandia Thalavan (1927) 55 M.L.J. 345 : I.L.R. 51 Mad. 664. I am aware that single Judges of this Court have taken the view that the order of a Subordinate Court determining the amount of court-fee payable by a plaintiff is liable to be revised when it is unfavourable to the plaintiff and I am aware that there is a decision of a Bench of this Court in the case of Secretary of State for India V/s. Raghunathan to the effect that the Crown cannot be heard in revision when the decision of the Court on the subject of court-fees is favourable to the plaintiff and unfavourable to the Government. On the other hand, there are several decisions of single judges to the effect that an order determining the proper court-fee is not liable to be revised under Section 115. See the case reported in Acha V/s. Sankaran and the decision unreported of Waller, J., in C.R.P. No. 451 of 1926.