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Ganesh Tavanappa Burde Vs. Tatya Bharmappa Mirji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application for REvision No. 312 of 1925
Judge
Reported inAIR1927Bom257; (1927)29BOMLR280; 101Ind.Cas.343
AppellantGanesh Tavanappa Burde
RespondentTatya Bharmappa Mirji
Excerpt:
.....fee is not made good within that time, then the suit shall stand dismissed. on august 7, 1925, the plaintiff paid the deficient court fees, but the subordinate judge of hukeri dismissed the suit on august 8, 1925, on the ground that the district judge had given only a fortnight's time to make good the deficient court fees and as the plaintiff did not amend the plaint and pay the deficient court fees stamp on august 6, 1925, he had no other recourse but to dismiss the suit. 313:-where a court fee on the institution of a suit has been paid in a court which cannot possibly afford the relief sought, it does not seem consistent with sound principle that the plaintiff should be condemned to lose the fee thus paid, or that he should not be allowed to ask without paying a second fee for an..........if and when the plaint is presented to it, to take the requisite steps to have the deficient court fees paid within a time to he fixed by that court. then the case would in that court fall under the provisions of order vii, rule 11, el. (b) or (c), and the court, if the requisite payment was not made in proper time, could then reject the plaint. i think, therefore, that the district judge exercised a jurisdiction which was not vested in him and that, there being no other remedy available, this court should intervene under section 115 of the civil procedure code. our order varying the order of the district judge so as merely to dismiss the appeal to him must be taken as effecting the dismissal of that appeal to-day, and our order setting aside the subordinate judge's order rejecting the.....
Judgment:

Patkar, J.

1. The plaintiff in this case sued to recover possession of the property with past and future mesne profits and costs in the Subordinate Judge's Court of Hukeri. Thus defendant contended that the market value of the property in suit was more than Rs. 5,000 and that the Hukeri Court had no jurisdiction to try the suit. On April 14, 1924, the Hukeri Subordinate Judge held that the market value of the subject-matter in suit was more than Us. 5,000 and therefore the Court had no jurisdiction to try the suit and directed the plaint to be returned for presentation to the proper Court. The plaintiff appealed against this order and the learned District Judge hold that the best order to pass was to follow the directions of Section 10 of the Court Fees Act. He, therefore, vacated the order of the trial Judge and instead of that he passed the following order :-

Plaintiff do within a fortnight of the reaching of the Record in the trial Court amend the plaint by showing the market value of the house to bo Rs. 5,397 and paying the deficient Court fee on the plaint. If that amendment is not made and the deficiency of the Court fee is not made good within that time, then the suit shall stand dismissed. If it is so made, then the plaint shall be returned for presentation to the proper Court.

2. Application No. 312 of 1925 has been filed against this order. On August 7, 1925, the plaintiff paid the deficient Court fees, but the Subordinate Judge of Hukeri dismissed the suit on August 8, 1925, on the ground that the District Judge had given only a fortnight's time to make good the deficient Court fees and as the plaintiff did not amend the plaint and pay the deficient Court fees stamp on August 6, 1925, he had no other recourse but to dismiss the suit. Against this order application No. 311 of 1925 has been filed in this Court by the plaintiff. Mr. Desai for the plaintiff contended that the only Court which could pass the order dismissing the suit under Section 10 of the Court Fees Act was the Court having jurisdiction, and that, under Order VII, Rule 10, of the Civil Procedure Code, it was the imperative duty of the Court to return the plaint for presentation to the proper Court. Under Order VII, Rule 11, the plaint shall be rejected if the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so. Order VII, Rule 11, may apply to the initial stage of the suit before the plaint is registered, and Section 10 of the Court Fees Act may apply to a subsequent stage of the suit. But I think that the Court which can dismiss the suit for non-payment of the Court fees within time is a Court which has jurisdiction to dismiss the suit. If the plaint was returned for presentation to the proper Court the plaintiff could take advantage of the Court fees that had been paid on the previously filed plaint and he could pay the deficient Court fees in the Court having jurisdiction to hear the case. There was a doubt entertained for some time under the old Civil Procedure Code whether a plaint should not be returned before it was registered or whether it might be returned at any stage of the suit The Bombay High Court took the view which is now embodied in Order VII, Rule 10, that the plaint may be returned at any stage of the suit. The Full Bench decision of the Bombay High Court in Prabhakarbhat v. Vishwambhar Pandit I.L.R. (1884) 8 Bom. 313:-

Where a Court fee on the institution of a suit has been paid in a Court which cannot possibly afford the relief sought, it does not seem consistent with sound principle that the plaintiff should be condemned to lose the fee thus paid, or that he should not be allowed to ask without paying a second fee for an adjudication from a Court which can really give one.

3. These remarks show that, according to the prevalent practice consonant with justice, the plaintiff should be allowed to pay the deficient Court fees in the Court which has jurisdiction to hear the case and he should get credit for the Court fees which have been previously paid. This view has been accepted by the Madras High Court in Visweswara Sarma v. Nair I.L.R. (1911) Mad. 567 where it was held that:-

Where a Court after receiving a plaint and cancelling the stamp affixed thereto returns the plaint for presentation to the proper Court under order 7, Rule 10, of the Civil Procedure Code of 1908 the latter Court to which the plaint is re-presented is bound to give credit to the fee already levied by the former Court.

4. There is, however, a decision of the Madras High Court in Kandasami Goundan v. Subbai Goundan (1923) 46 M.L.J. 345 in which there are some remarks which would favour the contention of Mr. Nilkant for the opponent. But the point does not seem to have been fully argued in that case. I think that Section 10 allows a Court to dismiss a suit for non-payment of the additional Court fee when it has jurisdiction to dismiss the suit. When at a subsequent stage of the suit it is found that the Court fees are insufficient and that the value of the property has been under-estimated, the Court has power to make an inquiry as to the value of the property and if the Court has jurisdiction to decide the case, the Court can dismiss the suit if the additional Court fee is not paid within such time as the Court shall fix and that is because the party disobeys the order of the Court and the suit must fail for want of prosecution. Where, however, the market value of the property goes beyond the pecuniary jurisdiction of the Court which has made such an inquiry, then, I think, it is the imperative duty of the Court under Order VII, Rule 10, to return the plaint for presentation to the proper Court. I think, therefore, that the District Judge was wrong in fixing the time within which the additional Court fee should have been paid in this ease and in directing that on default the suit should be dismissed. I also think that the order of the Subordinate Judge (who had no jurisdiction in the case) dismissing the suit is erroneous. We make the rule absolute in both the cases. We set aside the order of the Subordinate Judge of Hukeri dated August 8, 1925, and also set aside the order of the District Judge dated July 18, 1925, and in its stead we would substitute the order that the appeal to the District Judge should be dismissed with costs.

Fawcett, J.

5. I agree that there is a case here for our interference under Section 115 of the Civil Procedure Code. No doubt Section 10 of the Court Fees Act, 1870, does afford a basis for the contention of Mr. Nilkant that, on finding the market value to have been underestimated, the Court has an obligation to require the deficient Court fees to be paid, but I think that that direction in the section presupposes that the Court has jurisdiction to try the suit. That is supported by the fact that in the second clause of Section 10 provision is made for the suit being stayed until the additional Court fee is paid, and it is enacted that if the additional fee is not paid in time the suit shall be dismissed. The word 'dismissed' contemplates ordinarily a stage where a Court has jurisdiction to try a suit, and does not merely reject a plaint. This construction, I think, is also in accordance with the principle that the Court should try and construe enactments that otherwise may be inconsistent in a manner that reconciles them as far as possible. The Civil Procedure Code in Order VII, Rule 10, gives a mandatory direction that, if the Court finds that it has not jurisdiction to try a particular suit, the plaint shall be returned to be presented to the proper Court. Rule 11 of the same Order seems to me to cover cases where the Court has jurisdiction to try the suit, even if the relief claimed is undervalued. Accordingly, if the Court finds that the relief claimed is undervalued and that in consequence it has no jurisdiction to try the suit, then, in my opinion, the case falls under Rule 10 and not under Rule 11 (b) of Order VII, and Section 10 of the Court Fees Act, in so far as it requires the same Court to collect additional fees, is meant to apply to a case of the nature dealt within Clause (b) of Rule 11. Therefore the original order of the Subordinate Judge is, in my opinion, the correct one to pass, especially having regard to the general principle accepted by a Full Bench of this Court in Prabhakarbhat v. Vishwambhar Pandit I.L.R. (1884) 8 Bom. 313 It would be for the

Fawcett, J.

6. I agree that there is a case here for our interference under Section 115 of the Civil Procedure Code. No doubt Section 10 of the Court Fees Act, 1870, does afford a basis for the contention of Mr. Nilkant that, on finding the market value to have been underestimated, the Court has an obligation to require the deficient Court fees to be paid, but I think that that direction in the section presupposes that the Court has jurisdiction to try the suit. That is supported by the fact that in the second clause of Section 10 provision is made for the suit being stayed until the additional Court fee is paid, and it is enacted that if the additional fee is not paid in time the suit shall be dismissed. The word 'dismissed' contemplates ordinarily a stage where a Court has jurisdiction to try a suit, and does not merely reject a plaint. This construction, I think, is also in accordance with the principle that the Court should try and construe enactments that otherwise may be inconsistent in a manner that reconciles them as far as possible. The Civil Procedure Code in Order VII, Rule 10, gives a mandatory direction that, if the Court finds that it has not jurisdiction to try a particular suit, the plaint shall be returned to be presented to the proper Court. Rule 11 of the same Order seems to me to cover cases where the Court has jurisdiction to try the suit, even if the relief claimed is undervalued. Accordingly, if the Court finds that the relief claimed is undervalued and that in consequence it has no jurisdiction to try the suit, then, in my opinion, the case falls under Rule 10 and not under Rule 11 (b) of Order VII, and Section 10 of the Court Fees Act, in so far as it requires the same Court to collect additional fees, is meant to apply to a case of the nature dealt within Clause (b) of Rule 11. Therefore the original order of the Subordinate Judge is, in my opinion, the correct one to pass, especially having regard to the general principle accepted by a Full Bench of this Court in Prabhakarbhat v. Vishwambhar Pandit I.L.R. (1884) 8 Bom. 313It would be for the proper Court, if and when the plaint is presented to it, to take the requisite steps to have the deficient Court fees paid within a time to he fixed by that Court. Then the case would in that Court fall under the provisions of Order VII, Rule 11, el. (b) or (c), and the Court, if the requisite payment was not made in proper time, could then reject the plaint. I think, therefore, that the District Judge exercised a jurisdiction which was not vested in him and that, there being no other remedy available, this Court should intervene under Section 115 of the Civil Procedure Code. Our order varying the order of the District Judge so as merely to dismiss the appeal to him must be taken as effecting the dismissal of that appeal to-day, and our order setting aside the Subordinate Judge's order rejecting the plaint and dismissing the suit must also of course have effect from to-day. As an incidental consequence, the Subordinate Judge in returning the plaint to the plaintiff must also return any stamp papers that have been deposited in his Court in accordance with the direction of the District Judge.

7. As regards costs, under the original order of the Subordinate Judge directing the plaint to be returned, the plaintiff has to bear all costs up to that date of April 14, 1924. That order as to costs will stand. The District Judge ordered that, in case the amendment is made and the plaint is ultimately presented to the First Class Court, then the costs of the proceedings in the trial Court will be costs in the subsequent suit. We think that any subsequent costs incurred in the trial Court should be dealt with in that way, namely, that if the plaint is presented in the First Class Court they will be costs in the suit, but otherwise they should be borne by the plaintiff. As regards the costs of the appeal to the District Judge, there is no reason to interfere with his order that the respondent's costs of that appeal should be borne by the appellant. As to the costs in this Court, the applicant has been successful and following the ordinary rule, the opponent should bear his costs in both the cases.


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