Horace Owen Compton Beasley, Kt., C.J.
1. The petition is against a decision of the Subordinate Judge of Kumbakonam holding that the Court-fee paid on the plaint was sufficient. It is a.petition presented by Government.
2. A preliminary objection is taken as to the maintainability of this petition either under Section 115 of the Code of Civil Procedure or Section 107 of the Government of India Act. It is argued that, where an order in regard to Court-fees happens to be in favour of the plaintiff, the High Court will not interfere by way of revision; and, on the other hand, it is contended by the learned Government Pleader that, following the decision of a Bench of this High Court in Kulandaivelu Nachiar v. Ramaswami Pandia Thalavan I.L.R. (1927) Mad. 664 : (1927) 55 M.L.R. 345 the High Court has the power to revise such an order. Turning to that decision, it will be seen that in that case the Lower Court passed an order directing the plaintiff to pay additional Court-fees on an erroneous view of the Court-fee payable and refused to proceed with the suit unless such sum was paid. A preliminary objection was taken as to the maintainability of the Revision Petition on the ground that an appeal would lie against an order dismissing the suit if the Court-fee was not paid. This contention the Bench was unable to uphold being of the view that, where a Judge on an erroneous view of the Court-fee payable refuses to proceed with the suit until the proper Court-fee is paid, he fails to exercise the jurisdiction as the party is entitled to have his case tried if he paid the Court-fee; and Sudalimuthu Pillai v. Peria Sundaram Pillai (1924) 48 M.L.R. 514 a decision of Krishnan, J., was referred to with approval. In the latter case it was held that in cases in which Trial Courts wrongly order payment of Court-fee over and above what was paid on the plaint, it has been the practice of the Madras High Court to interfere with the order in revision, without leaving the aggrieved party to the cumbrous remedy of filing an appeal after the plaint is rejected for non-payment of the amount directed to be paid, the question really being one of jurisdiction as the plaint has to be rejected if the stamp duty is not paid. There are other cases of this High Court on the same point taking a similar view. The reason for interfering in revision in those cases was that it was a question of jurisdiction, that is to say, a refusal to exercise jurisdiction. Those cases are, however, clearly distinguishable from another decision of this High Court, namely, Muhamad Ellaiyas v. Rahima Bee (1928) 56 M.L.J. 302. In that case the Lower Court held that the Court-fee paid by the plaintiff on his plaint was correct and Venkatasubba Rao, J., held that such an order as that is not revisable though an order that the Court-fee paid on the plaint is wrong is revisable. As he points out at page 304, where the order is unfavourable to the plaintiff it may result in great hardship to him and the interests of justice may demand that the High Court should at once rectify the error without waiting till the suit is finally decided and an appeal is then filed. But if the Lower Court's order which is favourable to the plaintiff happens to be wrong, there is another remedy open, which is quite adequate, as the mistake can be corrected by the appellate Court under Section 12 of the Court Fees Act. It is quite true that in that case the petitioner was the defendant and that, as is pointed out in the judgment in that case, where an order in regard to Court-fee happens to be in favour of the plaintiff it does not mean that it is against the defendant though it may operate to the detriment of the revenue. In this case, the petitioner, as already stated, is the Government and it is argued by the learned Government Pleader that this fact distinguishes this case from Muhamad Ellaiyas v. Rahima Bee (1928) 56 M.L.J. 302. I am, however, unable to agree that that distinction alters the position if that decision was correct which, in my view, it clearly was. It is difficult to see how this petition can be presented at all by Government; seeing that Government is not a party to the suit and I have considerable doubt as to whether such a petition as this can be presented by Government. But, in any case, in my opinion, that is immaterial. The same view as that taken by Venkatasubba Rao, J., was taken in Falkner v. Mirza Mahomed Syed Ali 29 C.W.N. 627. In that case it was held that, when a Court holds that the plaintiff's valuation is correct, it does not commit such an error of law as to entitle the High Court to interfere under Section 115, Civil Procedure Code, because it cannot be said that the Court has exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction vested in it. There is another case to which reference must be made, namely, Kattiya Pillai v. Ramaswamia Pillai : AIR1929Mad396 , a decision of Venkatasubba Rao and Reilly, JJ., holding that the High Court can interfere in revision against an order relating only to a question of Court-fee if the order is unfavourable to the plaintiff but that it will not interfere if the order is favourable to the plaintiff. In that case there was not only a question of the Court-fee but of the valuation of the suit under Section 11 of the Suits Valuation Act. In such a case as that the High Court has a revisional jurisdiction even though the order is favourable to the plaintiff. The reason for the distinction appearing in that case is that in the latter case it was a question of the Court's jurisdiction to entertain the suit. No case has been referred to where this High Court or any other High Court has held that, where a favourable decision has been given as regards Court-fee to the plaintiff, the High Court will exercise its revisional powers. I am clearly, of the opinion that in such cases the High Court has no power of revision either under Section 115, Civil Procedure Code or under Section 107 of the Government of India Act. This Civil Revision Petition must, therefore, be dismissed with the costs of the respondent.
3. I agree.