MANOHARSINGH NATHASINGH Vs. PARMESHARI W/O. NATHASINGH

JUDGEMENT

(1.) THE applicant Manoharsing who is a son of Sardar Nathasing has brought a suit No. 3-A of 1945 in the Court of the 1st Additional District Judge, Akola, against the non-applicants who are his mother, minor brother and un-married sister. Nathasingh died on 18th June 1944 leaving behind large properties which are described in Schedules A. to P. These are alleged to be his self- acquired properties. The reliefs claimed by the plaintiff with which we are concerned in this revision are: (1) a declaration that he and his brother, defendant 2 are the joint owners of these properties, his own share therein being one-half, his mother being entitled to maintenance for life and the sister being entitled to maintenance till she is married and a provision for her marriage, and (2) a declaration that he (the plaintiff) is entitled to act as manager of the family of the parties in respect of these properties. In respect of each of these two reliefs a fixed court-fee of Rs. 20 has been paid.

(2.) ON behalf of the defendants a contention was raised that the plaintiff should pay court-fee ad valorem on the value of the share claimed by him of these properties. The trial Court has found that court-fee is payable ad valorem and has ordered the plaintiff to amend his plaint as regards valuation for purposes of court-fee and to pay ad valorem court-fee on such value. Against that order this revision petition has been filed.

(3.) THE non-applicants have raised an objection that no revision lies. In Nathu v. Ratan singh A.I.R. (20) 1933 Nag. 107 a Full Bench of the Judicial Commissioner's Court no doubt held that when a Court holds on a point of law involved that the court-fee paid is insufficient, there can be no interference in revision on the ground that the revisional Court takes a different view on such points of law. But this has been dissented from by a Full Bench of this Court in Balaji Dhumnaji Koshti v. Mt. Mukta Bai A.I.R. (25) 1938 Nag. 122 in which the view taken is that an order demanding additional court-fees on a memorandum of appeal is revisable, though one accepting the court-fees paid is not. One reason for which such interference in revision was considered to be appropriate has been thus stated: It is not desirable that litigation should end in so unsatisfactory a fashion or that litigants should, without remedy, be compelled to pay a sum which may be beyond their resources save at the cost of great sacrifices which in law ought never to have been demanded. In Hiralalsa v. Rambhu A.I.R. (33) 1946 Nag. 160, Niyogi J. has preferred to follow the view taken in Nathu v. Ratansingh A.I.R. (20) 1983 Nag. 107 F.B. to the one adopted in Balaji Dhumnaji koshti v. Mt. Mukta Bai A.I.R. (25) 1938 Nag. 122 F.B. The learned Judge appears to have been mainly influenced in favour of the view that no revision is tenable because in his opinion Section 12(2), Court. fees Act, provides for the correction of an erroneous decision of a lower Court by a Court of appeal, reference or revision. He also thought that the Judges responsible for the decision in in Balaji Dhumnaji Koshti v. Mt. Mukta Bai A.I.R. (25) 1988 Nag. 122 F.B. did not have their attention drawn to this provision in the Court-fees Act. This is not however so. The Judges have quoted the following decision of the Privy Council in Bachappasubrao v. Shidappa Venkat Rao A.I.R. (5) 1918 P.C. 188. The Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. This is evident from the character of the Act, and is brought out by Section 12, which makes the decision of the first Court as to value final as between the parties, and enables a Court of Appeal to correct any error as to this, only where the First Court decided to the detriment of the revenue. It cannot therefore be said that the provision in Section 12, Court-fees Act, was not present to the minds of the learned Judges. In fact, the scope of Section 12 has been pointed out in the above quoted decision of the Privy Council. It is that where the opposite party has raised a point that court-fee paid is insufficient but the Court decides that it is sufficient and allows the proceedings to continue the additional court-fee may be demanded by a Court of Appeal if it is satisfied that the point was decided in the first Court to the detriment of revenue. Section 12 is thus intended to provide a means for protection of court-fees revenue and is not intended to afford a remedy to a litigant against a demand of additional court-fee which he may be unable to pay and which he thinks could not be legally demanded of him. For such a person the only way to seek redress would seem to be to invite interference under Section 115, Civil P.C. I prefer to follow the view in Balaji Dhumnaji Koshti v. Mt. Mukta Bai A.I.R. (25) 1938 Nag. 122 F.B. and hold that the revision lies.