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Jagdish Rai and ors. Vs. Sant Kaur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision No. 386 of 1975
Judge
Reported inAIR1976Delhi147
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 11 - Order 14, Rule 2; Court fees Act, 1870 - Sections 9, 10 and 12
AppellantJagdish Rai and ors.
RespondentSant Kaur
Appellant Advocate G.N. Aggarwal, Adv
Respondent Advocate G.L. Rawal, Adv.
Cases Referred and Dewari Lal v. Sunder Lal
Excerpt:
.....- order 7 rule 11 of the civil procedure code, 1908, had expressly conferred on the court, the power to require the plaintiff to correct the valuation of the suit - further, the provision of section 9, 10 and 12 of the court fees act, 1870, also prescribes to see whether the valuation of the suit was properly made by the plaintiff - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained..........to require the payment of any court-fee. to record findings on all issues and after dismissing suit on merits, to require payment of additional court-fee is illegal and contrary to correct legal procedure. (see mahadei v. ram kishan das, 2nd (1885) 7 all 528, abdullah v. secretary of state, air 1925 lah 131; ismail shah v. saleh muhammad shah, air 1925 lah 326; durga devi v. parbati, air 1933 lah 208 and sri sri mahabirji v. saraswati devi, : air1960pat527 ). 7. in uttar pradesh section 6 of the court-fees act has been amended. sub-section (4) of section 6 specifically directs the court to decide the question of court-fee before any other issue. it cannot be postponed till the decision of the entire suit. (see baijnath v. tejpal, : air1941all55 ; narain parsad, v. banarsi das, :.....
Judgment:
ORDER

1. This is a revision petition against the order of the subordinate Judge dated April 16, 1975.

2.The plaintiff brought a suit for possession and recovery of damages. The defendant raised the plea that the suit is not properly valued for purposes of court-fee and jurisdiction. An issue was framed. The learned subordinate Judge refused to try this issue as a preliminary issue. The defendant has come in revision.

3. When an objection as to court-fee is raised the Court should decide that objection first before proceeding to dispose of the suit on any other ground. If the matter requires investigation it should record the evidence of the (parties bearing on the point and if it finds that the court-fee paid is insufficient should stay further proceedings in the suit and call upon the plaintiff to make good the deficiency within a specified time (See Walaiti Ram v. Gopiram, Air 1935 Lah 75. It is improper for the Court to hold up the decision on the question of court-fees until the end of the suit and to incorporate it in the decree. (See Sis Ram v. Sohan Lal, Air 1938 Lah 311.

4. The Court's power to see that the proper court-fee is paid includes the power to see that the plaint or memorandum of appeal is properly valued where the court-fee depends on the value of the subject-matter of the suit or appeal. O. 7, R. 11. clause (b) of the Code of Civil Procedure expressly confers on the Court the power to require the plaintiff to correct the valuation of the suit where the Court finds that he has undervalued it. The provisions of Sections 9, 10 and 12 of the Court-fees Act also contemplate a decision by the Court as to whether the valuation of the suit has been proper made by the plaintiff. But the proper stage for the Court to raise and deal with a question of court-fee or valuation is before the merits of the case are dealt with. It is not proper for the Court to deal with the question along with the merits of the case and pass a consolidated, single judgment at the end of the case disposing of both the questions as to court-fee as well as the merits of the case.

5. The Court is not bound to accept the plaintiff's estimate of the value of the subject-matter of a suit, Under Order 7, Rule 11, clause (b) of the Code of Civil Procedure the Court is empowered to reject the plaint if it is undervalued and the plaintiff on being required to correct the valuation within a given time fails to do so. This provision will apply both to the valuation for purposes of court-fee as well as valuation for purposes of jurisdiction. The power to require the valuation to be corrected implies also the power to require additional court-fee where ad valorem fee is payable. If the additional court-fee is not paid within the time given by the Court the plaint may be rejected. But if on the valuation being corrected it is found, that the suit does not fall within the jurisdiction of the Court in which it has been filed, the plaint should be returned for presentation to the proper Court under O. 7, R. 10, Code of Civil Procedure. The Court has no power in such a case to demand additional court-fee and reject the plaint under O. 7, R. 11 for non-payment of the requisite court-fee.

6. Once the case has been disposed of, the Court becomes functions officio and has no longer any jurisdiction to require the payment of any court-fee. To record findings on all issues and after dismissing suit on merits, to require payment of additional court-fee is illegal and contrary to correct legal procedure. (See Mahadei v. Ram Kishan Das, 2nd (1885) 7 All 528, Abdullah v. Secretary of State, Air 1925 Lah 131; Ismail Shah v. Saleh Muhammad Shah, Air 1925 Lah 326; Durga Devi v. Parbati, Air 1933 Lah 208 and Sri Sri Mahabirji v. Saraswati Devi, : AIR1960Pat527 ).

7. In Uttar Pradesh Section 6 of the Court-fees Act has been amended. Sub-section (4) of Section 6 specifically directs the Court to decide the question of court-fee before any other issue. It cannot be postponed till the decision of the entire suit. (See Baijnath v. Tejpal, : AIR1941All55 ; Narain Parsad, v. Banarsi Das, : AIR1960All372 and Dewari Lal v. Sunder Lal, : AIR1962All549 ). Even without the State amendment the law remains the same.

8. To sum up the question of court-fee is a preliminary point which ought to be decided by the Court before proceeding to decide the merits of the case. A judgment dismissing a suit on the merits as well as holding that the court-fee paid is not sufficient. is not proper. (See the case of Sis Ram, Air 1938 Lah 311 (supra).

9.The counsel for the defendant submitted to the trial Court that the issue regarding the valuation of the suit be decided as a preliminary issue. The counsel for the Plaintiff opposed this prayer. He said that the defendant was interested in delaying the suit and thereforee all the issues be tried together. This argument found favor with the court.

10. It is unfortunate that the above decisions were not brought to the notice of the trial judge. If that had been done I am sure the judge would have decided this point as a preliminary issue and this avoidable delay could have been saved. The course adopted by the Court below has led to unnecessary delay in the disposal of the suit, though in this Court I have disposed of the revision in the course of less than one month. I have thought it necessary to restate the law.

11. The counsel for the plaintiff submits that this preliminary issue should be tried expeditiously. The request is reasonable. The trial Judge will fix a date for the evidence of the parties on this issue. He will try to decide this issue within a period of three months. There will be no order as to costs.

12. Order accordingly.


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