(1) This is a petition to revise the order of the Subordinate Judge, Amalapuram in O. S. No. 33 of 1957 on his file.
(2)The relevant facts are briefly as follows:
The petitioner is the first defendant and the respondent is the plaintiff in O. S. No. 33 of 1957. Plaintiff filed that suit for possession of plaint A and B schedule properties, after ejecting the defendants there from and for future profits. After the plaint had been presented, an objection had been taken by the office that the valution of the properties was low. There upon, the plaintiff produced registered sale deeds showing a valution between Rs. 500/ to Rs. 1000/ per acre. The plaintiff also represented that the Village Munsif was one of the defendants in the suit and as such, she could not secure certificates of the village officers with regard to the valution of the suit properties. The Head Ministerial Officer put upan office note dated 20-1-1957 to this effect before the predecessor of the learned Subordinate Judge for orders regarding the court fee. That learned Judge heard the plaintiff and finally passed an order on 25-9-1957, as follows:
'Heard Sri R. V. He filed another sale deed for wet lands. Valution given already is proper. File if otherwise alright.'
(3)Subsequently, the defendants filed written statements and twenty one issues were framed. issue No. 18 was 'whether the court fee paid is not correct'. On this issue, both sides let in evidence regarding the valution of the suit properties. The learned Subordinate Judge(successor) declined to go into the evidence and passed an order to the following effect:
'................ in my opinion, it is no longer open to me as a successor of my learned predecessor to interfere with the order regarding the adequacy of court fee. The order of my learned predecessor dated 25-1-1957 has become final .............. I find on this issue that the Court fee paid is correct.' The first defendant felt aggrieved with that order and, therefore filed this revision petition.
(4) In para 14 of his judgement, the learned Subordinate Judge has referred to the circumstances under which his predeccessor passed the original order dated 25-1-1957. In paras 15 to 18, he considered the position of law and has discussed the various decision. He referred to and reliedon Sec. 12(i) of the Court Fees Act (Act VII of 1870) as amended in Madras which enacts:
'Every question relating to Valution for purposes of determining the amount of any fee chargeable on a plaint..............shall be decided by the Court in which such plaint or memorandum as the case may be, is filed, and such a decision shall be final as between the parties to the suit.' The learned Subordinate Judgehas referred to the following decisions of the Madras High Court: Lakshmana Ayyar v. Palaniappa Chettiar, 69 Mad LJ 479 : (AIR 1935 Mad 927); In Re: Chukka Durgiah, 1938-2 Mad LJ 647; Alaga Pillai v.Daraiswami Pillai, 1948-2 Mad LJ 551 : (AIR 1949 Mad 413); Mahalakshmamma v. Venkata Narayanamurthi, 1941-1 Mad LJ 796 : (AIR 1941 Mad 626); Gopalakrishna Chetty v. Srimulu Chetty, 1947-1 Mad LJ (N. R. C.) 6 and Venkata Subba Rao v. Venkatarao, : AIR1951Mad698 . These decisions were all to the effect that the earlier order of the Judge fixing the Court fee is final for all purposes till the matter is carried to a higher court and that the question of court fee cannot be reopened, and that the matter is pre-eminently one between the Government and the party seeking relief.
(5) In the present case, the suit was filed in 1957 after Andhra Court Fees and Suits Valution Act (Andhra Act VII of 1956) came into force in this State with effect from 1-5-1956. Section 79 of the Court-fees Act specifically provides that Central Act VII of 1870, in its application to the State of Andhra (in relation to the fees of the type with which we are now concerned in this petition) was repealed. The above decision of the Madras High Court would certainly be binding on this Court as authorities relating to Sec. 12(i) of Act VII of 1870, if that provision of statute regarding Court-fee were in force here. But, that provision was not in force on the date on which the plaint was presented i.e., in 1957. With effect from 1-5-1956, the provision regarding the finality or otherwise of decisions on Court fee is contained in Sec. 11 of the later Andhra Act VII of 1956. That section runs as follows:
'(11) (1) (a). In every suit the Court shall, before ordering the plaint to be registered, decide on the allegations contained in the plaint and on the material furnished by the plaintiff the proper fee payable thereon.
(b) The decision of the Court under cl. (a) regarding the proper fee payable shall be subject to review from time to time as occasion requires.
(2) Any defendant may plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit.....................'
If the order dated 25-9-1957 were an order passed under Sec. 12 of Act VII of 1870, it would become final as between the parties to the suit. On the contrary, if the same order was passed under Section 11(1)(a) of the Andhra Act (VII of 1956) it would not become final according to the provisions of that Section for, Sec. 11(1)(b) provides for the decision under Sec. 11(1)(a) being reviewed not necessarily once, but 'from time to time as occasion requires' and sub-sec. (2) clearly provides for the court-fee already made to be challenged by any defendant and the question raised by such challenge(by way of pleas) to be heard and decided by the Court. It is thus clear that, on material features relevant to the present subject-matter of this revision petition, the provision in the Andhra Act (Act VII of 1956) is substantially different from the provision in Sec. 12 of theAct VII of 1870. Under Sec. 11(2) of Act VII of 1956 the lower court had to consider the pleas raaised by the defendant and decide. Issue 18 afresh in the light of the pleadings, and evidence,unaffected by the fact that his predecessor had already passed an order under Sec. 11(1)(a) on 25-9-1957. Therefore, it is obvious that the finding of the lower court on issue No. 18 is wrong and untenable.
(6) Hence, I allow there vision petition, set aside the finding of the lower court as regards the Court fee(Issue No. 18) and direct that Issue No. 18 should be decided afresh on the material evidence already placed before the Court. Costs will abide the result and may be provided for in the judgement in the suit.
(7) Order accordingly.