SHAMRAO JANRAO Vs. AMOLAK CHIMNIRA MAHESHWARI

JUDGEMENT

(1.) THE applicants sued the non-applicants for possession of the entire field or of 2/3rds share therein after setting aside a sale, deed in respect of it executed by their father Janrao in favour of the non-applicants for a consideration of Rs. 2000. Their allegation was that the Joint field was the property of themselves and their father and that the sale was not for legal necessity. They valued the suit for purposes of court-fees at Rs. 600 which, they alleged, was the present market value of the field. The Court, after the trial was completed but before writing judgment, raised the point of proper court-fee on the plaint and recorded a finding that the court-fee should be paid ad valorem on Rs. 2000 which was the consideration mentioned in the sale-deed. Time was allowed to the plaintiffs to pay the deficit court-fee. That not having been paid, the following order was recorded on 25th March 1947: 25th March 1947.--Parties by counsel. Mr. Rohi for plaintiffs says that his client does not want to pay the court-fees. Suit dismissed for non-payment of court-fees Costs on plaintiff. This revision is filed for setting aside the above order.

(2.) THE non-applicants have raised a contention that the order was appealable and the application in revision is not, therefore, tenable. The order would be appealable if it amounts to a decree within the definition in Section 2(2), Civil P.C., and it would be a decree if it can be treated as an order under Rule 11(c) of Order 7, Civil P.C. of rejection of the plaint and may not be treated as an order of dismissal for default. The argument on behalf of the applicants is that this should be treated as an order dismissing the suit for default in complying with the Court's order. In Sm. Annapurna Dassi v. Sarat Chandra Bhattacharjee A.I.R. (22) 1935 Cal. 157 an order of dismissal of a suit made in similar circumstances was held to amount to a rejection of the plaint under Order 7, Rule 11(b) and (c).

(3.) A decision on the point of valuation can be taken by an appellate Court also under Section 12(ii), Court-fees Act and additional fee, if necessary, can be demanded. The consequence of nonpayment of the additional fee at that stage is that the suit is liable to be dismissed as provided under Section 10 ibid. The use of the word 'dismissed' at that stage is appropriate because, when the proceedings in a suit have already been terminated, the question of filing or rejection of the plaint becomes immaterial and the order to be passed should then be relating to the suit as a whole.