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Mahadeo Gopal Pendse Vs. Hari Waman Bhate - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 648 of 1942
Judge
Reported inAIR1945Bom336; (1945)47BOMLR350
AppellantMahadeo Gopal Pendse
RespondentHari Waman Bhate
Excerpt:
.....115 of the civil procedure code, 1908, lies against an order passed by the court that the court-fees paid by the plaintiff on his plaint are insufficient, as it is tantamount to a finding that the court will not proceed with the trial unless the court-fees demanded are paid and is thus a refusal to exercise jurisdiction.;kulandaivelu. nachiar v. ramaswami pandia thalavan (1927) i.l.r. 51 mad. 664, ramautar sao v. ram govind sao (1941) i.l.r. 20 pat. 780, sailendranath kundu v. surendranath sarkar (1934) i.l.r. 62 cal. 417, balaji dhumnaji koshti v. mukta bai [1938] nag. 106 and ratnavelu v. varadaraja [1942] a.i.r. mad. 585, followed.;desikar v. gopala chettiar [1939] a.i.r. mad. 380 dissented from.;where a purchaser from a coparcener of a portion of his share in joint family property..........code. but the view taken by this court in certain unreported cases is that an order that the court-fees paid by the plaintiff on his plaint are insufficient is really tantamount to a finding that the court would not proceed with the trial unless the plaintiff paid the court-fees demanded. it is thus a refusal to exercise jurisdiction, although, according to the plaintiff, proper court-fees have been paid, and he is entitled to have his suit tried on merits. on this ground it has been held that an order demanding court-fees in excess of what the plaintiff has paid is virtually a refusal to exercise jurisdiction, and as such, if it is erroneous, the high court will interfere with it in revision. in desikar v. gopala chettiar a.i.r [1939] mad. 380 burn j. (sitting alone) took a different.....
Judgment:

Lokur, J.

1. One Gopal Pendse, the father of petitioners Nos. 1, 2 and 3 and the husband of petitioner No. 4, purchased at an auction the half share of Yeshwant, opponent No. 2, in three lands belonging to the joint family consisting of Yeshwant and his brother Hari, opponent No. 1. After the death of Gopal, the petitioners, who succeeded to his estate, filed this suit for recovering possession of Yeshwant's half share in the three lands and paid court-fees on the claim for the possession of that share only. On the contentions of the opponents, two preliminary issues were raised as to whether the plaintiffs were not bound to ask for a partition of the entire joint family property and whether it was necessary for them to pay court-fees on the entire share of their vendor Yeshwant. On the first issue the lower Court found that the plaintiffs were bound to bring a general suit for partition. The plaintiffs accepted that finding and included in the suit all the joint family property of the defendants. On the second issue the lower Court found that the plaintiffs must pay court-fees on the value of the share of defendant No. 2. In other words, the plaintiffs were called upon to pay court-fees as if they had asked for possession of the entire share of defendant No. 2, Yeshwant. It is against that order that the petitioners have now come in revision, and a preliminary objection is urged that such an application is. not maintainable under Section 115 of the Civil Procedure Code. But the view taken by this Court in certain unreported cases is that an order that the court-fees paid by the plaintiff on his plaint are insufficient is really tantamount to a finding that the Court would not proceed with the trial unless the plaintiff paid the court-fees demanded. It is thus a refusal to exercise jurisdiction, although, according to the plaintiff, proper court-fees have been paid, and he is entitled to have his suit tried on merits. On this ground it has been held that an order demanding court-fees in excess of what the plaintiff has paid is virtually a refusal to exercise jurisdiction, and as such, if it is erroneous, the High Court will interfere with it in revision. In Desikar v. Gopala Chettiar A.I.R [1939] Mad. 380 Burn J. (sitting alone) took a different view and held that where a Court having jurisdiction to decide what is the proper court-fee decides that question and orders the plaintiff to pay court-fee accordingly, revision does not lie from such order only determining the proper court-fee, because it cannot be said that the Court failed to exercise any jurisdiction or acted without jurisdiction. Distinguishing or differing from several earlier rulings, he observed that such an order, which by itself did not fall under Section 115 of the Civil Procedure Code, could not be revised by the High Court merely because it was bound to be followed by some other order which might be without jurisdiction. But in our opinion the very finding which calls upon the plaintiff to pay higher Court-fees amounts to a refusal to exercise jurisdiction unless such fees are paid, and shuts the plaintiff out of his right of suit, and there is no reason to require the plaintiff to wait till his plaint is rejected and then appeal against the rejection. Bum J.'s view has been dissented from by Chandrashekhara Ayyar J. in Ratnavelu v. Varadaraja A.I.R [1942]. Mad. 585 where he pointed out that when after a finding that the court-fee paid is insufficient is recorded time is given to the plaintiff to pay the deficit, that itself is denial of jurisdiction to proceed with the suit unless such deficit is paid, and no further specific order refusing to proceed with the suit is contemplated by the Civil Procedure Code. If the order for payment is not complied with, the plaint is to be rejected under O. VII, Rule 11, and such order is appealable as a decree. But without waiting till then, the plaintiff can treat the demand for higher court-fees as refusal by the Court to exercise its jurisdiction and apply to the High Court to have the order corrected in revision. The balance of judicial opinion is now in favour of this view (Kulandaivelu Nachiar v. Ramaswami Pandia Thalivan (1927) I.L.R. 51 Mad. 665 Ramautar Sao v. Ram Govind Sao (1941) . 20 Pat. 780, Balaji Dhumnaji Koshti v. Mukta Bai [1938] Nag. 106 and Shmilendranath Kundu v. Surendranath Sircar I.L.R (1934) Cal. 417) and we agree with it and hold that this application is maintainable under Section 115 of the Civil Procedure Code.

2. It is urged by Mr. Dharap on behalf of the petitioners that in this suit the petitioners do not seek any relief in respect of the entire share of defendant No. 2 Yeshwant, but they want to recover possession of only his half share in the three lands which Gopal purchased at the auction and, therefore, they are liable to pay court-fees only on their claim for possession of that much share of defendant No. 2. It has, however, been held, and rightly held, by the lower Court that the plaintiffs' claim for possession of Yeshwant's half share in the three lands in suit cannot be awarded to them unless Yeshwant's share in the entire joint family property is determined and declared. For that purpose a partition of the entire joint family property is first necessary and the plaintiffs must pay court-fees for that relief. Mr. Dharap argues, with evident plausibility, that even when a coparcener files a suit to recover his share in the joint family property, he must first ask for its partition and yet he is never required to pay separate court-fees for the partition of the estate and for possession of his share. But in that case, the partition and possession go together and he pays for the possession of the entire share which is separated and declared to be his. But where a purchaser brings a suit for partition of the joint family property, in which he has no coparcenary interest, he asks for a declaration of the entire share of his vendor and then seeks to recover possession of what he has purchased out of that share. It is, therefore, obvious that the separation or declaration of the vendor's share is a relief independent of the relief of possession which the plaintiffs claim for themselves, and, therefore, separate court-fees have to be paid for the two reliefs. The claim for a mere partition falls under sch. II, Article 17(vii), of the Court-fees Act, as amended by the Bombay Finance Act II of 1932, and the plaintiffs must pay a court-fee of Rs. 15 for that relief and an additional appropriate court-fee for the claim to recover possession of Yeshwant's share in the three lands in suit. The rule is made absolute to this extent, and the plaintiffs will be given two weeks' time to pay the deficit court-fees after the papers reach the lower Court.' The coats of the application will be costs in the suit. No order about costs of Government.


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