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Mt. Asghari Begum Vs. Fasihuddin - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1934All989; 152Ind.Cas.816
AppellantMt. Asghari Begum
RespondentFasihuddin
Excerpt:
- - 492. on this report, by order dated 18th august 1928, the plaintiff was called upon to make good the deficiency. subsequently she without having made good the deficiency made an application to permit her to withdraw the suit and for liberty to sue again. this application was granted on 8th september 1928. shortly after that it occurred to the court that the plaintiff should have paid the deficiency in stamp duty and her pleader was called upon to make good the deficiency. he having failed to do so, a notice was issued to the plaintiff, and thereafter an attachment of her property was ordered to enforce the payment......of rs. 492. on this report, by order dated 18th august 1928, the plaintiff was called upon to make good the deficiency. she did not protest but accepted the position that she was liable to pay that amount of court-fee. subsequently she without having made good the deficiency made an application to permit her to withdraw the suit and for liberty to sue again. this application was granted on 8th september 1928. shortly after that it occurred to the court that the plaintiff should have paid the deficiency in stamp duty and her pleader was called upon to make good the deficiency. he having failed to do so, a notice was issued to the plaintiff, and thereafter an attachment of her property was ordered to enforce the payment. thereupon, the plaintiff paid on or about 12th december 1928. i am.....
Judgment:
ORDER

Mukerji, J.

1. This is an application in revision made under peculiar circumstances. It appears that the plaintiff, Mt. Asghari Begum, who is the applicant before me, filed a suit No. 38 of 1928, asking for several reliefs including one for declaration and another for injunction with respect to her rights over certain property having regard to her dower debt. The suit was filed with Rs. 13 as the proper court-fee stamp, and the plaint was admitted by the Court. Later on the chief stamp inspector reported that there was a deficiency in court-fee to the amount of Rs. 492. On this report, by order dated 18th August 1928, the plaintiff was called upon to make good the deficiency. She did not protest but accepted the position that she was liable to pay that amount of court-fee. Subsequently she without having made good the deficiency made an application to permit her to withdraw the suit and for liberty to sue again. This application was granted on 8th September 1928. Shortly after that it occurred to the Court that the plaintiff should have paid the deficiency in stamp duty and her pleader was called upon to make good the deficiency. He having failed to do so, a notice was issued to the plaintiff, and thereafter an attachment of her property was ordered to enforce the payment. Thereupon, the plaintiff paid on or about 12th December 1928. I am told that she subsequently brought a suit for a dower and that it succeeded. But we are not concerned with this fact. It appears that one of the learned Judges of this Court held in a decision, which is reported in Mohammad Ismail v. Laiyaqat Hussain 1932 All. 316, that it was not open to a Court to issue an order of attachment; for realisation of deficiency in court-fee stamp. On the strength of this decision the present application for revision was filed in Juno 1932 to revise the order of the learned Subordinate Judge issuing an attachment: for recovery of deficiency in court-fee. The learned Government Advocate has conceded that in view of the ruling of this Court, it is open to him to contest the correctness of the view that the deficiency in court-fee could not be realised by issue of an order of attachment. But the contends, and in my opinion rightly, that the deficiency in court-fee was payable by the plaintiff, and if she paid it, although unwillingly, she should not be permitted to get back the same.

2. There would be no proper suit before the Court till the deficiency in court-fee had been paid. The only order that could be passed by the learned Subordinate Judge was one rejecting the plaint. No order permitting the plaintiff to withdraw the suit and to bring a fresh suit could have been made on the basis of an insufficiently stamped plaint, which was liable to be rejected. In this view of the case, the plaintiff has paid what was due by her, and she is not entitled to get back the money. The application in revision is accordingly dismissed with costs.


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