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Lakshmi NaraIn Rai Vs. Dip NaraIn Rai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All350
AppellantLakshmi NaraIn Rai
RespondentDip NaraIn Rai
Cases ReferredPoran Lal v. Rup Chand
Excerpt:
.....has stated before us in express terms that the consequential relief of the cancellation of the compromise decree is not asked for and that the applicant is prepared to take the consequences of the failure to ask for such consequential relief whatever they may be. suraj karan air1932all560 it was held by a bench of this court that, for the purpose of determination of the court-fee, the actual relief asked for should be looked into, and it is entirely beside the consideration of the court whether the suit is likely or not to fail, because the plaintiff did not ask for a consequential relief. it was held by a bench of this court that the order appealed from was clearly an order deciding a case within the meaning of section 115, civil p. we think that the order of the learned subordinate..........of the prayer for relief. the amended prayer read as follows:on account of the fact that the decree in suit no. 24 of 1901 is according to law null and void, illegal and ineffectual, it may be declared, etc....2. the court below held that by the insertion of these words the plaintiff was asking for the cancellation of the decree in suit no. 24 of 1901 and, this being a consequential relief, an ad valorem court-fee should be paid based on the value of the property concerned. the learned munsif relied for this view on the decision of the full bench of this court in kallu ram v. babu lal : air1932all485 . the correctness of the order of the learned munsif is challenged by the plaintiff in the present application for revision on the ground that the relief asked for is still only one of.....
Judgment:

Kisch, J.

1. The question raised in this application for revision is what is the correct court-fee payable on the applicant's petition of plaint in which he seeks a declaration that he is the owner in possession of certain zamindari property. The plaint recites that Suit No. 24 of 1901 was instituted by the plaintiff when a minor under the guardianship of his mother to get possession of the said property in respect of which Mangla Prasad Rai, the half brother of the plaintiff's grandfather and the father of the defendant, had got his name entered in the revenue papers on the death of Mt. Ram Dei Kuar, the widow of the' plaintiff's great-uncle. It further avers that this suit has been struck off through the collusion of the Mukhtar Khas of the plaintiff's mother with Mangla Prasad Rai and that the latter had caused an appeal to be preferred and a compromise to be entered into in the appellate Court by a person incompetent to enter into a compromise on behalf of the minor plaintiff. The allegation in. the plaint is that the compromise decree was obtained by fraud. The relief prayed for in the plaint as originally preferred was that it may be declared by the Court that the plaintiff is the owner in possession of the property in suit. A court-fee of Rupees 10 was paid on the plaint. Thereafter the plaintiff applied for the plaint to be amended by the addition of certain words at the beginning of the prayer for relief. The amended prayer read as follows:

On account of the fact that the decree in Suit No. 24 of 1901 is according to law null and void, illegal and ineffectual, it may be declared, etc....

2. The Court below held that by the insertion of these words the plaintiff was asking for the cancellation of the decree in Suit No. 24 of 1901 and, this being a consequential relief, an ad valorem court-fee should be paid based on the value of the property concerned. The learned Munsif relied for this view on the decision of the Full Bench of this Court in Kallu Ram v. Babu Lal : AIR1932All485 . The correctness of the order of the learned Munsif is challenged by the plaintiff in the present application for revision on the ground that the relief asked for is still only one of declaration and that no consequential relief is prayed for. It is contended on behalf of the applicant that the only effect of the amendment of the plaint is that two declarations are now asked for firstly, that the decree in Suit No. 24 of 1901 is null and void as against the plaintiff, and secondly, that the plaintiff is the owner of property in suit, and that accordingly only the court-fee payable in respect of prayers for mere declaration need be paid. The learned Counsel for the applicant has stated before us in express terms that the consequential relief of the cancellation of the compromise decree is not asked for and that the applicant is prepared to take the consequences of the failure to ask for such consequential relief whatever they may be.

3. In view of these clear statements by the applicant's counsel it seems to us that his contention as to the court-fee payable must be accepted. It has been held by this Court in a very similar case that a suit for a mere declaration that a compromise and a decree on its basis are null and void is not to be deemed one in which consequential relief is prayed: Radha Krishna v. Ram Narain : AIR1931All369 . In that case the relief originally prayed: and on which a court-fee of Rs. 10 had been paid was for cancellation of a compromise and the decree based upon it on the allegation that the plaintiff was a minor and that he was bound by the compromise and decree which were obtained by fraud. On objection being raised the plaintiff amended his plaint to the effect that it be declared that the petition of compromise and the decree were ineffectual as against the plaintiff and that he was not bound thereby. It was held by a Bench of this Court that the plaint as amended was sufficiently stamped, the suit as framed being to obtain a declaratory decree when no consequential relief was prayed. It was further held that the question of court-fee must be decided on the plaint and the decision is not affected by the question whether the suit is maintainably under Section 42, Specific Relief Act, or by any action subsequently taken by the plaintiff to obtain an injunction otherwise than by amendment of the plaint. Similarly in Brij Gopal v. Suraj Karan : AIR1932All560 it was held by a Bench of this Court that, for the purpose of determination of the court-fee, the actual relief asked for should be looked into, and it is entirely beside the consideration of the Court whether the suit is likely or not to fail, because the plaintiff did not ask for a consequential relief.

4. We are of opinion that the principles-laid down in these rulings apply to the present case. The case is distinguishable from Kallu Ram v. Babu Lal : AIR1932All485 , because in that case there were distinct prayers for the cancellation of the-mortgage-deed impugned in the plaint and for the cancellation of the compromise and the decree. In our opinion the effect of the amendment is to add to the relief originally prayed a prayer for a further declaration that a decree in Suit No. 24 of 1901 is ineffectual against the plaintiff, for which he must pay a further court-fee of Rs. 10. It has been contended by the learned Counsel for the opposite party that no revision lies because the order of the Court below directing the payment of additional court-fee is merely an interlocutory order, no case has been decided within the meaning of Section 115, Civil P.C. and the plaintiff's proper course was to wait for the dismissal of the suit by disobeying the order and then move this Court by way of appeal.

5. In our opinion this contention cannot be accepted. In Ramrup Das v. Sitaram Das (1910) 7 I.C. 92 it was held by a Bench of the Calcutta High Court that the High Court can interfere in revision in such interlocutory orders where the orders appear to be a denial of jurisdiction. The same view was taken by the Madras High Court in Dodda Sannekappa v. Sakravva (1917) 36 I.C. 831 in which it was held than an order for payment of deficient court-fee was really an order declining to entertain jurisdiction unless certain things were done. The High Court can interfere in revision with an erroneous order for payment of deficient court-fee and it is not necessary that the plaintiff should wait for the dismissal of the suit by disobeying the order and then move' the High Court by way of appeal or revision. A number of earlier decisions of the Madras High Court on the subject were reviewed by a Bench of that Court in Kulandai Pandichi v. Ramaswami Pandia A.I.R. 1928 Mad. 416 and the competency of the High Court to interfere with such an order in revision was re-affirmed. The Patna High Court has also interfered in revision with similar interlocutory orders in Banki Behari v. Ram Bahadur (1918) 4 Pat L.J. 191 and Maharaj Bahadur Singh v. Raja Prithichand Lal A.I.R. 1929 Pat. 427.

6. No case of this Court interfering in revision with an order to pay additional court-fee has been brought to our notice, but there are certain decisions of this Court which have a bearing on the point under consideration. In Jagannalh Sahu v. Chedi Sahu : AIR1929All144 the question before this Court was whether it could interfere in. revision with an order refusing to supersede an arbitrator when such arbitrator had been appointed without compliance with the provisions of Section 5, Schedule 2, Civil P.C., and the Court had refused, to supersede him on the application of the aggrieved party. It was held by a Bench of this Court that the order appealed from was clearly an order deciding a case within the meaning of Section 115, Civil P.C., and therefore the application for revision was competent. In the course of their judgment the learned Judges observed that:

On 29th Hay 1928, the controversy between the parties was whether the arbitration should he superseded or should be continued or another arbitrator appointed in place of B. Bhagwati Prasad, as desired by the defendant. The Court settled that controversy by its order of that date, which directed that the arbitration should continue and B. Ganesh Prasad should act as arbitrator. The controversy thus terminated. We think that the order of the learned Subordinate Judge in that, connexion is clearly an order deciding a case.

7. A similar view, was taken in Poran Lal v. Rup Chand : AIR1931All761 . The ratio decidendi in these cases is that, where the order of the Court below disposes of the entire matter in controversy at the particular stage of the case, such an order can be made the subject of an application in revision. We think that the same reasoning is applicable to the present case and the determination of the question whether an additional court-fee should be paid or not marked the termination of a definite stage of the suit and settled the controversy between the parties on the particular point.

8. In our opinion therefore the order of the Court below is an order deciding a case and amounts to a failure to exercise a jurisdiction vested in that Court. Such an order can be the subject of an application in revision to this Court. It is further contended that this Court ought not to interfere as there is another remedy open to the applicant. In the present case it is doubtful whether in all circumstances the applicant would have another remedy open to him; If the applicant having paid the additional court-fee was successful in his suit and the other side did not appeal the applicant would have no further opportunity to agitate the matter of his wrongly having been called upon to pay additional court-fee, even though he might fail to recover his costs from the defendant. We accordingly allow the application in revision with costs and direct that the plaint be admitted on the payment within two months of a further sum of Rs. 10 as court-fee.


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