1. This is a report by the office that the court-fee paid by the plaintiff-respondent on the plaint was deficient by a sum of Rs. 380 and the respondent must be asked to make good that deficiency. It is further mentioned in the report that the appellant should pay a further court-fee of Rs. 476. Ordinarily a report as regards deficiency due from an appellant is put up for orders before the Taxing Officer while the question of deficiency by the respondent is decided by the Court. Since the deficiency demanded from the appellant as well as from the respondent is based on the same ground, the whole report has been put up before us for orders. Mr. Jagdish Swarup on behalf of the respondent and Mr. Kartar Narain Agarwala on behalf of the appellant both contest the office report.
2. The facts of the case are very simple. The plaintiff, Mt. Parmesra, became a widow in the year 1936 and became entitled to inherit the property of her husband. She was a minor on the date when her husband died. Her step mother-in-law, Mt. Jileba, put some sort of claim to the property and got into possession. A suit was filed on behalf of Mt. Parmesra for possession of the property on the ground that the property had belonged to her husband, Ram Lakhan, who was the last male owner and Mt. Parmesra was, therefore, entitled to inherit the property under the Hindu law. There was a compromise. Under the compromise Mt. Jileba was given one-fourth share. The present suit was filed by Mt. Parmesra. The only relief claimed in the plaint is for possession; but in the body of the plaint it is stated that the compromise was entered into during her minority by her guardian and it was not binding on her for various reasons, which are set out in the plaint. No relief was, however, claimed for adjudging void the compromise or for declaration that the compromise was not binding on Mt. Parmesra. The suit was decreed by the lower Court and the defendant has filed this appeal.
3. Mt. Parmesra had paid court-fee under Section 7, Sub-section (v), Court-fees Act, on the relief for possession. The office has made this report that she was bound to pay court-fee under Section 7 (iv-A) also as the suit involved cancellation or adjudging void the compromise of the year 1936. Before this amendment to the Court-fees Act, there was a difference of opinion in this Court whether the plaintiff should pay court-fee only on the relief actually claimed or the Court could go behind the relief claimed and see what was the real nature of the suit and the relief. The later view was that the plaintiff was liable to pay court-fees on the relief actually claimed and the Court could not make him pay court-fees for a relief which he ought to have claimed but which he had not claimed; and if the plaintiff's suit could not proceed without claiming the relief he had not the Court may dismiss the suit. This amendment to the Court-fees Act was probably made to set at rest this controversy and Section 7 (iv-A) has been so worded that even if the plaintiff has not claimed the relief of cancellation or adjudging void or voidable an instrument, if the suit involves such cancellation or adjudging void or voidable such instrument, court-fees under Section 7 (iv-A) are payable.
4. We are, therefore, of the opinion that the office report is right and the plaintiff was bound to pay court-fee under Section 7 (iv-A) also.
5. Mr. Jagdish Swarup on behalf of the respondent has urged that there is no provision in the Court-fees Act for payment of court-fee-both under Section 7 (iv-A) and Section 7 (v) and the respondent should be asked to pay court-fees under only one of the two sub sections and whichever may be the larger amount. Section 17, Court fees Act provides that in any suit in which two or more separate and distinct causes of action are joined, the plaint, or memorandum of appeal shall be chargeable with aggregate amount of the fees with which the plaints or memorandum of appeal would be chargeable, if separate suits were instituted in respect of each such cause of action. The second part of the section deals with alternative reliefs. Section 17 is clearly not applicable to this case as the adjudging of the compromise as void and giving the plaintiff a decree for possession is not based on two causes of action nor do they amount to alternative reliefs. We, therefore, accept learned Counsel's contention to this extent that the plaintiff is not bound to pay separate court-fees under Sections 7 (iv-A) and 7 (v). The proper order seems to be that the plaintiff should be asked to pay court-fee on the aggregate amount of the two reliefs. It would make some difference in the amount payable as the rate at which court-fee is payable is fixed on a sliding scale and the rate is less as the amount or value of the subject-matter is increased.
6. The office will make a fresh report about the amount payable by the respondent and the appellant and after showing it to learned Counsel put it up for orders on 13th December 1948.