1. The petitioner here filed a suit in the Court of the District Munsif of Tanuku for the division of property held by her husband's relations on the assertion that her husband died divided from them and that a release deed executed by him in their favour was not binding upon her. She sued also for cancellation of that release deed. Court-fee was paid in two sums, one for the general relief of the division and recovery of property and one for the cancellation of the release deed. The suit was dismissed on the ground that there was no division in status between the husband of the plaintiff and the other members of his family. In the course of the judgment a finding was given that the release deed was brought about by undue influence and was therefore not binding on the widow. This finding, as will be seen, had no material effect upon the result of the suit which had to be dismissed because the plaintiff's husband had died as a member of a joint family. The plaintiff appealed against the decree dismissing her suit and at first sought to pay court-fee only upon the main prayer in her suit for the recovery of her husband's estate. In an order dated 3rd March 1937, however, the learned Subordinate Judge of Narsapur called upon her to pay court-fee also upon the prayer in the plaint in the lower Court for cancellation of the release deed. That court-fee was paid on the 5th April, 1937. The appeal remained pending for another two years and came up for hearing in 1939. By that time a new Subordinate Judge had succeeded the Judge who had passed the order of March, 1937. The new Subordinate Judge once again discussed the question of court-fee and held that the method of valuation of the court-fee payable upon the relief for the cancellation of the release deed in the lower court was defective and that upon the true method of valuation further court-fee was payable. An order was therefore passed on the 27th June, 1939 that the plaintiff should pay Rs. 405 deficit court-fee on the plaint and Rs. 405 deficit court-fee upon the memorandum of appeal. It is against that order that the present revision petition has been filed.
2. This petition will have to be decided upon a consideration of Section 12 of the Court-Fees Act. Section 12 runs as follows:
(i) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.
(ii) But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of S, 10, paragraph ii, shall apply.
3. It will at once be apparent that the learned Subordinate Judge's order falls into two portions, one of which purports to be under Section 12 (1) and the other under Section 12 (2). So far as the memorandum of appeal is concerned, the learned Judge is acting under Section 12 (1). So far as the plaint is concerned the learned judge is acting as a Court of appeal under Section 12 (2). There is nothing in Section 12 (2) which states that a Court may not reconsider an order which it has already passed under that sub-section. It seems to me therefore that it cannot be successfully argued that that part of the learned Subordinate Judge's order which calls upon the appellant to pay a deficit court-fee on the plaint is without jurisdiction. As this is a revision petition under Section 115 of the Civil Procedure Code, I can see no ground for interference with that part of the learned Subordinate Judge's order.
4. With regard to the order calling for an additional payment on the memorandum of appeal, it seems to me that it is contrary to the provisions of Section 12 (1). Section 12 (1) lays it down that the Court which entertains a memorandum of appeal shall decide what is the correct court-fee to be paid upon it and that decision shall be final as between the- parties to the appeal. It is argued that, if a decision is to be final, it means that the same Court cannot reconsider its own decision. * This has been held in three cases which have been brought to my attention, all in recent years by Venkatasubba Rao J., in Lakshmana Aiyar v. Palaniappa Chettiar : AIR1935Mad927 Venkataramana Rao J., in Sadasivam Pillai v. Varadaraja Odayar : AIR1937Mad325 and Pandrang Row, J., in Chukka Durgiah In re : (1938)2MLJ647 . It is argued for the respondents here that Section 12 (1) makes final only a decision which has been finally arrived at by the Court after both parties have been heard and that the phrase 'shall be final as between the parties to the suit' would be meaningless unless this were the true interpretation of the word 'decision'. I am not able to accept this argument. It seems to me that it would have been very easy for the Legislature to have laid it down that no final decision on a question of court-fee shall be given unless both parties are heard if that had been the intention of the Legislature. The word 'decided' and the word 'decision' are here given without any qualifications at all and they must clearly apply to any adjudication by the Court whether both parties have been heard or only one party has been heard or even if no party at all has been heard. The only essential is that the Court should apply its mind to the questions at issue in arriving at the true calculation of the 'court-fee; so that, although in this case the first order of the 3rd March, 1937 was passed after hearing only the appellant and not the respondent, I can still see no reason why that order can be excluded from the term 'decision' in this sub-section. The order is quoted in the later order of June 1939 and it is an order obviously passed after the Court had applied its mind to the question of the amount of court-fee payable. Nor do I see on general principles any reason why the Legislature should have required that both parties should be heard before a decision as to court-fee could be given. Questions of court-fee are not questions between the parties to a suit. The subject-matter of their litigation has nothing to do with court-fee. It is preeminently a matter between the Government and the subject, a matter for the safeguarding of which the Court of course must be the final authority, I am not prepared to hold that the Legislature at any time contemplated that this question of court-fee should form the subject-matter of an issue to be tried along with the other issues when the suit tame up for adjudication. This has been also stated by Venkatasubba Rao, J., in the judgment : AIR1935Mad927 already referred to. He says at page 482:
Under the prevailing usage, the Court fully goes into the question relating to the court-fee, only upon an objection taken in the written statement by the defendant; but, as the Judicial Committee points out in Rachappa Subrao v. Shidappa Venkatrao (1918) 36 M.L.J. 437 : L.R. 46 IndAp 24 : I.L.R. 43 Bom. 507 the Court-Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, and from that view it follows that although in actual practice a defendant is permitted to object that the proper court-fee has not been paid, he has, strictly speaking, no legal right to raise such a plea, but his function must be deemed to be, subject to the Court's leave merely to assist it in coming to a proper decision.
5. I am of opinion that the real purpose for which this sub-section was enacted was to ensure that the Court at as early a stage as possible in the suit should finally determine. what was the amount of court-fee payable before the subject-matter of the suit itself was to be embarked upon, and that once the Court did so determine, the parties were not to be permitted to raise the question again before it. I therefore with respect follow the authorities already quoted and hold that this part of the order of the learned Subordinate Judge calling upon the petitioner to pay Rs. 405 upon the memorandum of appeal has been passed in direct contradiction of the provisions of Section 12 (1) of the Court-Fees Act and therefore without jurisdiction. I accordingly set aside that part of the order and, as already mentioned, affirm the other portion of the order relating to the deficit court-fee on the plaint. Each party to this petition will bear his own costs.