John Stanley, C.J., Banerji and William Burkitt, JJ.
1. This appeal arises out of a suit for pre-emption which was instituted on the 18th of April 1905. The sale which is sought to be pre-empted took place on the 18th of April 1904, so that the plaintiff left it to the lust day available to him for bringing the suit. The valuation for the purpose of court fee was estimated at five limes the revenue, the plaintiff being under the impression that the case fell under sub-division (b) of Sub-section v of Section 7 of the Court Fees Act, Act No. VII of 1870. At the hearing an objection was taken as to the court fee and the Munsif determined this objection in favour of the objector, holding that there was a deficiency, us the court fees ought to have been estimated under subdivision (d) of the section to which we have referred and not under sub-division (b), namely, at the market value of the land, The deficiency was ordered to be made good by the 19th of August 1905, and this was done and the case disposed of on the merits. The Munsif gave the plaintiff a decree for pre-emption.
2. Upon appeal the lower appellate Court held that, inasmuch as the deficiency in the court fee was made good after the period allowed by the law of limitation had expired, the suit was barred, by limitation, and reversing the decision of the Court below dismissed the plaintiffs claim. The present appeal was therefore preferred.
3. Mr. Howard on behalf of the appellant relies upon the provisions of Section 28 of the Court Fees Act. That section provides that 'if any document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the Presiding Judge... may, if he thinks fit, order that such document he stamped as he may direct, and on such document being stamped accordingly the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.' It is admitted that if the mistake in the matter of the court fee had been a mistake on the part of the officer of the Court, this section would apply. But it is contended on behalf of the respondents that the mistake in the matter of the court fee was a mistake of the plaintiff and not a mistake of any officer of the Court. The question therefore narrows itself down to this simple question, whether or not in this case the deficiency in the court foe was due to a mistake of the plaintiff or a mistake of the officer of the Court?
4. We find in the plaint the following statements made with a view to the determination of the proper court fee, namely: 'The suit is valued at Rs. 197-8-0, five times of Rs. 39-8-0, the amount of revenue of the property,' and later on the property is described as '41 bighas 10 biswas and 5 biswansis, paying a revenue of Rs. 39-8-0, entered as holding No. 2 in the khewat out of a 3 biswa 10 biswansi 18 kachwansi 9 nanwansi 15 tanwansi share, comprising an area of 101 bighas, paying a revenue of Rs. 95, situate in thok, et cetera.' The Munsarim reported that the court and process fees were sufficient. Now it appears to us that the fair inference from the language which we have quoted from the plaint is that the 41 bighas odd, the subject matter of the suit, formed only part of the share comprising an area of 101 bighas which was assessed to revenue. The plaintiff does not state that the 41 bighas were separately assessed to revenue or recorded in the Collector's register as such, He merely states, as we infer, that the fair proportion of the revenue payable by the larger area of 101 bighas would be Rs. 39-8-0, and calculating five times this amount ho assessed the value of the suit in accordance with the provisions of sub-division (b) of the section. If the plaintiff had stated that the revenue payable in respect of the 41 bighas had been separately assessed and recorded in the Collector's register as such, then undoubtedly the Munsarim of the Court would have been in no default in the matter; but the plaintiff did not state so, and therefore it was the duty of the Munsarim to inquire whether or not the smaller area was separately assessed for revenue. We think, therefore, that the mistake or inadvertence in this case was that of the officer of the Court, and such being the case that the plaintiff is entitled to the benefit of Section 28 of the Act. We therefore allow the appeal, set aside the decree of the lower appellate Court, find, inasmuch as the appeal was decided upon a preliminary point and we have reversed the decision upon that point, we remand the appeal to the lower appellate Court with directions that it be re-entered in the file of pending appeals in its proper number and be decided on the merits. Costs here and hitherto will abide the event.