SHEIKH MOHAMMAD ABDUL KARIM Vs. SHEIKH MOHAMMAD YUSUF

JUDGEMENT

(1.) IN this case the plaintiff appellant sued for a declaration of his title in one half of property valued at Rs. 2,100 and that upon an adjudication of his title ho should be put in possession of his share after a partition by metes and bounds. The Court of first instance found as a fact that he was out of possession at the time of the institution of his suit. The Court-fee on the suit having been Rs. 10 only, the Court of first instance thereupon recorded an opinion that the Court-fee payable was ad valorem on Rs. 2,100. On appeal to the District Court a Court-fee of Rs. 10 only was paid. The Sheristadar of the Court, therefore, recorded a note to the effect that the deficit Court-fee payable was Rs. 130 in the lower Court and Rs. 130 in the Judge s Court, in all Rs. 260, whereupon the learned District Judge recorded an order that he should pay Rs. 240 within a week. This order was brought to contest on the 23rd January 1918 but affirmed and an order made rejecting the appeal on the ground that the deficit Court-fee had not been filed. On the 27th February 1918 conditional order was made restoring the appeal if Rs. 240 be paid within a week, Rs. 120 was paid on the 14th March and nothing more having been paid by the 5th April, the appeal was dismissed. On the authority of the case of Chandramani Koer v. Basdeo Narain Singh 49 INd. Cas. 412 ; 4 I.L.J. 57 an appeal lies to this Court from an order rejecting a memorandum of the appeal if the Court below has made an error with regard to the category within which the suit falls. Clearly in this case an error has been made, for though in view of the prayer for a partition of the property in execution the subject-matter of the suit might be for the purposes of jurisdiction Rs. 2,109, yet the actual relief sought was valued at only Rs. 1,050 and therefore the Court fee payable in both the Courts below was Rs. 80 only. The deficit, therefore, in the learned Subordinate Judge s Court was Rs. 70 and in the District Court the proper Court fee had been filed by the 14th March and accepted. It remained only under Section 12 of the Court Fees Act to call upon the appellant to pay the deficit then due, which would according to our calculation amount to Rs. 20, before the suit should be proceeded with. No importunity was given to the appellant be make this deposit and it seems to us he has been seriously prejudiced by the errors made in the calculation of the Court fee due. We would, therefore, decree this appeal and in lieu of the order of the District Court, direct that the appeal be registered with discretion to the District Court to fix a date on which the deficit Court-fee of Rs. 20 shall be paid and if upon that date the Court fee is not paid, to refuse to proceed with the appeal and dismiss it. We would make no order as to costs.