1. This is a plaintiffs' appeal against an order of rejecting the plaint by Mr. Parshotum Sarup, Sub-Judge, First class, Delhi, dated 30-4-1951.
2. The following pedigree-table will assist in understanding the facts of the case:
| | |
Dev Karan Sheo Sahai Bhawani Sahai
| _______________|_____________ |
| | | | |
| Jai Narain Ram Raj Jai Dayal |
| (Defdt. 6) (Defdt. 7) (Defdt. 8) |
| | | |
Bhagireth Mal Chiranji Lal Dayalu Ram |
(Defdt. 3) (Defdt. 4) (Defdt. 5) |
| | | |
Sheo Parshad Ram Chander Asha Ram Prahlad Singh
(Plff. 1) (Plff. 2) (Defdt. 9) (Defdt. 10)
3. Defendant No. l Suraj Mal obtained a decree on 7-5-1947 for Rs. 5,246/10/3 against Bhawani Sahai and Bhagirath Mal defendants Nos. 2 and 3 at Lucknow. In April 1949 five-twelfth share of a house No. 2959/A was attached in execution of the decree. On 9-7-1949 plaintiffs Nos. 1 and 2 Sheo Parshad and Ram Chander filed an application under Order 21, Rule 58, Civil P. C., which was dismissed on 6-8-1949.
4. On 13-10-1949 plaintiffs Nos. 1 and 2 brought a suit under Order 21, Rule 63, Civil P. C. claiming declaration and injunction alleging that on 17-1-1940 one-third share of the house attached had been sold to the plaintiffs and defendants Nos. 9 and 10, i.e., Asha Ram and Prahlad Singh who are brothers of plaintiffs Nos. 1 and 2 and thus all four of them became owners of one-third undivided share of the house. They claimed a declaration that they along with their brothers Asha Ram and Prahlad Singh (Defendants Nos. 9 and 10 are the owners of four-twelfth share of the property and the same is not liable to be attached and sold in execution of the decree and for permanent injunction restraining defendant No. 1 Suraj Mal 'from proceedings against the said 4/12/- share of the plaintiffs and their 'brothers defendants Nos. 9 and 10.' It Is not necessary to give the pleadings of the parties.
5. Defendants Nos. 9 and 10 applied on 3-7-1950 under Order 1, Rule 10, Civil P. C., for being transposed as plaintiffs. In their application they alleged that their interest and that of the plaintiffs was common as four-twelfth share was purchased by them by the same sale deed, that the matter in controversy regarding the non-attach-ability of the share was also the same, that the same issues arose and that in order to avoid a technical objection that they (defendants Nos. 9 'and 10) were not plaintiffs they were asking to be transposed. This application was opposed by defendant No. 1, but the learned trial Judge allowed this application and ordered the transposing of defendants Nos. 9 and 10 as plaintiffs. At page 41 of the paper book, and I quote from the order of the learned Judge, it is said in this order:
'The objection petition under Order 21, Rule 58 was filed by the plaintiffs with respect to their own share as well as the share of the defendants Nos. 9 and 10, therefore, for all intents andpurposes the petition was on behalf of thedefendants Nos. 9 and 10 and the plaintiffs andthe defendants Nos. 9 and 10 have a right tobring a suit under Order 21, Rule 63.'
6. On 7-12-1950, an amended plaint was filedand now objection was taken by defendant No. 1.that proper court-fee' had not been paid. Thelearned trial Judge held that qua plaintiffs Nos. 1and 2, i.e., the original plaintiffs the plaint hadbeen properly valued but by the transposition ofdefendants Nos. 9 and 10 as plaintiffs Nos 3 and 4 the position had changed and as these twoplaintiffs had not made an application underOrder 21, Rule 58, their suit would not fall under Order 21,Rule 63, and therefore all the plaintiffs must payan 'ad valorem' court-fees on Rs. 5,246/10/3.
7. On 27-3-1951 the plaintiffs' counsel made a statement to the effect that plaintiffs Nos. 3' and 4 (original defendants Nos. 9 and 10) had filed objections under Order 21, Rule 58, which had been dismissed as being belated and that they had filed a suit under order 21, Rule 63 which was pending in the Court of Ch. Bahal Singh, and then an application was filed for re-transposing Asha Ram and Prahlad Singh as defendants Nos. 9 and 10 but this was refused. As the court-fee had not been made up the plaint of the plaintiff was rejected:. (8) The suit as brought by plaintiffs Nos. I and 2 was properly valued as was held by the learned Subordinate Judge also and therefore if defendants Nos. 9 and 10 had not been brought in as plaintiffs no objection could be taken. As a matter fact, in suits such as these the rule laid down by their Lordships of the Privy Council in -- 'Phul Kumari v. Ghanshyam Misra', 35 Cal 202 (PC) (A) applies. Does the bringing in of defendants Nos. 9 and 10 make any difference to the situation? The learned Judge had himself held that the previous application which was made under Order 21, Rule 58 must be taken to be for and-on behalf of all the four brothers and really it; was on that ground that he allowed these defendants to be transposed as plaintiffs, and if that was his finding at that stage he could not in the-same proceedings come to a different finding at another stage, and as far as I can see the bringing; in of defendants Nos. 9 and 10 does not really make any difference to the nature of the suit or the valuation.
It is really a suit under Order 21, Rule 63 and in my opinion the learned Subordinate. Judge was in error in holding and in ordering that even plaintiffs Nos. 1 and 2 had after the amendment of the plaint to pay court-fee 'ad valorem' on the value of the decretal amount. I would therefore allow this appeal, set aside the order of the trial Court rejecting the plaint and remand the case for trial in accordance with law.
9. The parties have been directed to appear -in the trial Court on 26-4-1954.
10. Costs will be costs in the cause.
11. I agree.