GAINDA MAL Vs. MADAN LAL

JUDGEMENT

(1.) The facts giving rise to this first appeal shortly stated are as follows: On 2-8- 1988, Gainda Mal instituted a suit against his brother and a number of collaterals for partition of the property that he claimed to be joint, for rendition of accounts and for permanent injunction. Though it was stated in the plaint that the value of the suit for purposes of jurisdiction was Rs. 13,550, (Rs. 20 for purposes of rendition oft accounts, Rs. 5 for permanent injunction and Rs. 13,525 for purpose of partition), court-fee of Rs. 11/4 only was paid on the ground that the plaintiff fixed the value of the first two reliefs at Rs. 20 and Rs. 5 and a fixed fee of Rs. 10 was payable in respect of the relfef of partition, because the suit property was in the joint possession of the plaintiff and the defendants. On the defendants objection and on the plaintiff's own admission that the value of his one-fourth share to which he alleged to be entitled was Rs. 50,000. On 19-6-1939 the trial Court held that ad valorem court-fee for possession by partition had to be paid on that amount and ordered the plaintiff to make up the deficiency by 29 June. On 26 June the plaintiff applied for permission to sue in forma pauperis, alleging that he was unable to pay the full court-fee required by the trial Court without going into the merits of the plaintiff's allegation that he was a pauper dismissed his application as well as the suit on 3-7-1939. On appeal to the High Court, Lahore, a Division Bench of that Court set aside the trial Court's order dismissing the plaintiff's application for permission to sue in forma pauperis as well as the decree by which he was non-suited and remanded the case with the direction that the application should be decided on merits, and if the Court came to the conclusion that the plaintiff was not a pauper, time should be granted to him to make up the deficiency in court-fee. After the remand the trial Sub-Judge found that the plaintiff had not been able to prove that he was a pauper. Accordingly he dismissed his application and ordered him to make up the court-fee within a month of the date of his order, that is, 15-8-1944. Against this order the plaintiff made a petition for revision to the High Court of Lahore. A learned Judge of that Court on 29-8-1944 stayed proceedings in the trial Court pending the hearing of the revision petition. The petition was ultimately dismissed by another learned Judge on 7-11-1944 and the trial SubJudge's order of 15-8-1944 was confirmed. On 8-11-1944, evidently before the records of the case could reach the trial Court, the plaintiff made an application to the trial Court under Section 151 and Order. 6, Rule. 17, Civil P.C. detailing all these facts, alleging inter alia that he was unable to pay the full amount of court-fee ordered by the Court and stating that he reduced his claim re: possession by partition of the suit property from one-fourth to one-four hundredth share so as to bring the value for purposes of court-fee to Rs. 500 instead of Rs. 50,000. He further prayed that though it was not necessary in law to amend the plaint, in order to avoid all possible objections on the part of the other party he be allowed to make a necessary amendment in the plaint with regard to the value of the relief for partition. The application was opposed by the contesting defendants, firstly, on the technical ground that it had not been properly signed and attested and, secondly, that the Court having ordered the plaintiff to pay court-fee on Rs. 50,000 it was not open to the plaintiff to reduce his claim. The following issues were framed: 1. Whether the plaintiff can be allowed to amend the plaint so as to reduce his claim to Rs. 500, when he has not paid court-fee as ordered by the Court ?

(2.) Whether for other reasons also the amendment should not be allowed ?

(3.) Whether it is necessary that the application should be signed and attested by the applicant ? By his order dated 9-2-1945 the trial Sub-Judge found the third issue for the plaintiff but decided the other two against him and ordered him to make up the deficiency in the court-fee by the 10th. Since the deficiency was not made upon the 10 the plaint was rejected under order. 7, Rule 11, Civil P.C. This order is the subject-matter of appeal before us. 2. The Court below while rejecting the plaintiff's prayer that he be allowed to reduce his claim took the view that after an order made under Order 7, Rule 11 for the deficiency in court-fee to be made up, the plaintiff cannot be allowed to relinquish any part of his claim, and relied upon Midnapur Zemindary Co. V/s. Shey. of State 4 A.I.R.1917 Cal.77. The position taken up by the appellant's counsel is that according to Order 23, Rule 1, Civil P.C., the plaintiff has an absolute right to abandon a part of his claim against all or any of the defendants, and as is laid down in Sub-rule (1) of that rule he can exercise this right at any time after the institution of the suit and before the suit is finally disposed of. The counsel further urged that Order 7, Rule 11 and Order 23, Rule 1 should be read together. The relevant words of Order 7, Rule 11 are: 11. The plaint shall be rejected in the following cases: (c) where the relief claimed is properly valued, but 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 23, Rule 1 reads as below: At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. Sub-rule (3) is to the effect that: where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-Rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. It is, therefore, clear that if a plaintiff wishes to withdraw a suit or abandon a part of his claim he can do so at his sweet will In certain cases it is necessary for him to obtain the permission of the Court under Sub-rule (2), but according to the words of Sub-rule (8) the only penalty to which he subjects himself for not obtaining the Court's permission under Sub-rule (2) is that he shall be precluded from instituting any fresh suit in respect of the subject-matter or part of the claim about which he withdraws his suit or abandons his claim. 3. To start with, the respondents counsel took up the position that when a plaintiff has once fixed the value of his suit for purposes of jurisdiction he has no right whatsoever to reduce it at any stage of the suit, and when a suit is for possession of property court-fee must be paid on the value so fixed. The learned Counsel in order to support his contention referred us to Mt. Zebunnisa V/s. Din Mahomed 28 A.I.R.1941 Lah.97, a Full Bench decision of the Lahore High Court. I have no hesitation in coming to the conclusion that that ruling has absolutely no application to the facts of the present case. In that case a Mohammadan had executed a family trust in respect of his property and had constituted himself to be the first mutwalli. The trust deed provided that after his death his son was to succeed him as mutwalli. The son after his father's death repudiated the trust and along with his brother effected several alienations of the dedicated property. The plaintiffs instituted the suit for a declaration that the property was wakf and that alienations thereof were null and void. They valued the relief at rupees ten lacs for the purposes of jurisdiction and paid court-fee of Rs. 10 under Clause (iii) of Art. 17 of Schedule II, Court-fees Act. The Full Bench held that the first part of the relief that the property was wakf was purely declaratory and did not involve any consequential relief and would, therefore, require Rs. 10 for the purposes of court-fee, and that as regards the second part of the relief that the alienations be declared null and void etc., it was tantamount to a substantive relief in the shape of the setting aside or cancellation of the alienations in question and could not be treated as purely declaratory or as a declaration with a consequential relief within the meaning of Section 7 (iv)(c) and required advalorem court-fee on the value of the subject-matter of the sales, viz., rupees ten lacs as put in the plaint for the purposes of jurisdiction, for the reason that in a suit of that kind the value for the purposes of court-fee and jurisdiction was the same. There was no question of the plaintiff's right to withdraw a part of his claim and consequently there was no reference much less discussion of the provisions of Order 23, Rule 1, Civil P.C. The counsel drew our attention to an observation made by Tek Chand, J. in the course of his judgment that when a plaintiff fixed a certain value of the property, which is the subject-matter of the suit, for purposes of jurisdiction, it is not open to him to fix a different value thereof in respect of court-fee. These remarks should be read in the light of the facts of the case with which the learned Judge was dealing and do not imply that if the plaintiff wishes to relinquish a part of his claim he cannot be allowed to do so, because it would entitle him to pay less court-fee than he would have ?one if there had been no relinquishment. Where the plaintiff relinquishes a part of his claim the subject-matter of the suit would be confined to that part of the claim which is not relinquished and the value of the suit both for purposes of jurisdiction and court-fee will be reduced accordingly.