COLLECTOR OF GORAKHPUR Vs. BUDHU KALWAR

JUDGEMENT

(1.) In the view that have take it is unnecessary to decide the points that have been raised and ably argued by Mr. Khwaja, the learned junior Counsel on behalf of the Collector of Gorakhpur, the appellant in the present appeal the facts that led to this appeal are as follows : A suit for partition of certain properties alleged to be joint family properties was filed in the Court of the Munsif of Gorakhpur in forma pauperis by Budhu Kalwar, one of the respondents in the present appeal. The defendant to the suit was Khaksa Kalwar, the other respondent in the appeal. It was alleged in the plaint that Khaksa had forcibly dispossessed Budhu from the joint family properties that were specified at the foot of the plaint and accordingly the prayer contained in the plaint was that the plaintiff be put in possession of his half share in those properties after partitioning the same. The suit was valued at Rs. 4000. The application of Budhu to be allowed to sue in forma pauperis was granted by the Court. During the pendency of the suit the parties entered into a compromise on 4 July 1932. In accordance with the compromise Khaksa was to pay a sum of Rs. 40 and the costs of the suit to the plaintiff and was further made liable to pay to the Government the court-fee payable on the plaint. A decree in terms of the compromise was drawn up.

(2.) It appears that after the compromise the office reported that the court-fee payable on the plaint was a sum of Rs. 225 and then on 2 August, 1932 Khaksa, who was liable under the compromise to pay the court-fee, applied to the Court praying that the Court should either order that the court-fee payable was only Rs. 10 and not Rs. 225 or vacate the compromise and proceed with the trial of the suit. This application was granted by the Court on 11 February 1933 to this extent, that the Court set aside the compromise and restored the suit. In the course of its order the Court observed that the compromise was arrived at under a misconception as to the amount of the court-fee chargeable on the plaint.

(3.) After the restoration of the suit Budhu, the plaintiff, applied for amendment of the plaint. This application was filed on the very date on which the compromise was set aside by the Court, viz. on 11 February 1933. The prayer contained in the application for amendment was that the allegation in the plaint as to the dispossession of Budha from the joint family properties be struck off and so be the relief as regards the decree for possession. The application was granted by the Court. The order granting the amendment was also passed on 11 February 1933. The parties then on the same date filed a fresh compromise by virtue of which Khaksa was made liable to pay a sum of Rs. 120 in all to Budhu and further the liability to pay a sum of Rs. 15 on account of court-fee was cast on Khaksa. The terms of the compromise were embodied in the decree which was signed by the Presiding Officer of the Court on 1 March 1933. Thereafter on 20 March 1934 the Collector of Gorakhpur filed an application praying that the defendant be directed to pay Rs. 225 on account of the court-fees and the decree of the Court be directed to be amended accordingly.