1. The question raised in 'this petition is whether the order of the lower Court requiring the plaintiff to- pay additional Court-fee on the plaint is correct. The suit was for declaration that the plaintiff is entitled to the amount of Rs. 9863/- lying in deposit in the' Savings Bank account in the Taluk Treasury at Hosanagar in the name of the Amildar of that Taluk. It appears the Amildar was a Receiver in Cr. Misc. No. 1 of 50-51 on the file of the First Class Magistrate, Sagar, and that as a result of the order in the proceedings the amount is payable to the plaintiff. In addition to declaration, the plaintiff sought for a permanent injunction to restrain the 1st defendant from withdrawing the amount from the Treasury.
The relief for injunction was valued at Rs. 45/-and ad valorem Court-fee was paid on that amount besides the fixed fee for the relief of declaration. The defendants contended that the Court-fee paid was insufficient and the objection has been upheld. The learned Subordinate Judge seems to be of opinion that the claim for relief of injunction affects the Court-fee payable for the relief of declaration and that the value of the relief of injunction at Rs. 45/- is arbitrary and low. lie has ordered that ad valorem fee on the amount in deposit should be paid.
2. Sri Somasekhara Rao learned Counsel for the petitioner has- cited the decision in '7 Mys LJ 41 (A)' and '16 Mys CCR 50 (B)'; to show that in a case like this it is open to the plaintiff to ask for a bare declaration without consequential relief. These may be of help to determine the maintainability of the suit but do not deal with the amount of the Court-fee to be paid. The plaintiff has not applied for a direction to pay the money and the prayer if granted does not entitle him to enforce the realisation of the amount in execution of the decree which may be passed. The officer who has control over the fund and competent to pay it is not a party to the suit. The adjudication of the right to it in plaintiff's favour may suffice for the plaintiff getting the amount. The officer in charge of the money is_ not interested in the person to whom payment is to be made whether he is' the plaintiff or any other and all that he wants is a judicial recognition of the claim. The person who disputes the claim is the defendant and since the money is not with him it does not seem to be necessary or reasonable to call upon the plaintiff to pay ad valorem Court-fee on the amount in deposit. That contingency may arise if the custodian declines to pay it and the plaintiff wants to enforce his claim for payment.
In view of this I do not think the plaintiff need pay any thing more than the fixed Court-fee prescribed under Article 4 (iv) (c) to the schedule to the Court-fees Act for the relief of declaration. In -- Ponnuswami Nadar v. Secy, of State : AIR1935Mad318 , it was pointed out that relief of injunction is superfluous and unnecessary in snob cases, and the proper relief should be only a declaration for which the fixed Court-fee is sufficient.
A similar view is expressed in -- Mt. Uttam Devi v. Dina Nath', AIR 1923 Lah 359 (D). --'Urmilabala Biswas v. Binapani Biswas : AIR1938Cal161 , cited by Sri Malur Subba Rao learned Counsel for the respondent to justify the order of the lower Court is distinguishable as the plaintiff wanted in that case the money in deposit to be given proportionately to the plaintiff. There is no such relief in the present case.
3. The. order of the lower Court is set aside as, in my opinion, the Court-fee paid already is sufficient. The suit will be proceeded with and disposed of on the merits expeditiously.
4. Order accordingly,