APPARAO SHESHRAO DESHMUKH Vs. MT. BHAGUBAI

JUDGEMENT

(1.) THE plaintiff appellant Apparao filed a suit in the Court of the Additional Sub-ordinate Judge, Second Class, Pusad, against the widows of one Yeshwantrao and one Gunwantrao for a declaration that Gunwantrao was not the adopted son of Yeshwantrao and in the alternative for a declaration that the adoption of Gunwantrao by the widows or anyone else was null and void. The plaintiff, who claims to be one of the next reversioners of Yeshwantrao, valued the suit for the purposes of jurisdiction at Rs. 400 and paid a fixed court-fee of Rs. 15. Subsequently, on the order of the Court he paid a further court fee of Rs. 15, as the Court apparently took the view that he was claiming two separate declarations. The defendants contended that the claim was undervalued and under-stamped, and on 20th February 1941 the Court held that as Yeshwantrao's estate was admittedly worth more than Rs. 5,000 the value of the claim for the purposes of jurisdiction exceeded Rs. 5,000 and the plaintiff must pay ad valorem court fees in accordance with the decision in Noksing v. Bholusing A.I.R. (17) 1930 Nag. 73.

(2.) AGAINST that decision, Apparao filed an application for revision in this Court contending that the suit was for a mere declaration and was properly stamped and valued. Gruer J. on 2nd April 1941, following the decision in Nohsing v. Bholusing A.I.R. (17) 1980 Nag. 73, held that the decision about court fees was correct. On 26th April 1941, the Subordinate Judge of the second class returned the plaint for presentation in the proper Court, and on 2nd April 1941 Apparao presented it in the Court of the Subordinate Judge of the first class, Yeotmal. He altered the plaint, so as to show the value for the purposes of jurisdiction as Rs. 6,000, but the court-fee paid remained at Rs. 30 and nothing was said about the decision of this Court that an ad valorem court fee was necessary. The defendants objected that the value of the claim for the purposes of jurisdiction exceeded Rs. 10,000 and that ad valorem court fees must be paid. That Court on 17th July 1942, without deciding the value of the claim for the purposes of jurisdiction, held that the High Court's order that ad valorem court fees must be paid was final, that the plaintiff therefore ought to have paid ad valorem court fees on Rs. 6,000 when he presented the plaint, that he had made no effort to pay it, nor had he asked for any extension of time to pay, and that therefore the plaint was liable to be rejected for not being properly stamped. On that day he accordingly rejected the plaint. Against that decision the plaintiff has preferred this appeal.

(3.) THE main contention, however, has been that under Order 7, Rule 11, Civil P.C. the plaint cannot be rejected for being insufficiently stamped unless the plaintiff on being required by the Court to supply the requisite stamp paper within a time fixed by the Court fails to do so. The natural meaning of this seems to me that the Court must fix some time in which to allow the plaintiff to supply the requisite stamp paper, and it is only if the plaintiff fails to supply it within the time fixed that the plaint shall be rejected, That interpretation has been placed on this rule by many Courts in many cases. In Jagatram v. Kharaiti Ram A.I.R. (25) 1938 Lah. 361: 175 I. C. 699 F. B., however, the referring Judges expressed the view that the authority to grant. time to make up the deficiency is conferred by Section 149, Civil P.C., and that Order 7, Rule 11 is merely a disabling provision enjoining the Court to reject the plaint if the deficiency is not made good as. ordered by the Court, That decision was cited with approval in Shiva Charan Lal v. Behari Lal A.I.R. (28) 1941 oudh 30. Where a plaint is unstamped or is on the face of it understamped, then under Section 6, Court-fees Act, the Court may refuse to receive it. Where, however, the plaint is not on the face of it understamped and the Court did not refuse to receive it, then, if subsequently it is discovered that the plaint is understamped, Order 7, Rule 11, in my opinion, comes into play and the Court must give time to the plaintiff in which to make up the deficiency. The decisions in Jagat Ram v. Khariati Ram A.I.R. (25) 1938 Lah. 361 and Shiva Charan Lal v. Behari Lal A.I.R. (28) 1941 Oudh 30 may be distinguished on the ground that there the plaint was on the face of it understamped. It has been contended that Section 149 is the governing section and that it is a matter for the Court's discretion to allow time for making up the deficiency. Section 149 is a general section applicable to all understamped documents, but it cannot, in my opinion, overrule the more particular provision in Order 7, Rule 11 that the Court before rejecting a plaint as improperly stamped must allow an opportunity to the plaintiff to make up the deficiency. The lower Court, therefore, was not justified in rejecting the plaint immediately.