Raghava Rao, J.
1. In this case I was at first inclined to think that the lower Court's order required a reversal ; but on a careful comparison and contrast instituted by me between the allegations and reliefs of the plaint as originally filed in the District Munsiff Court of Peddapuram and the allegations and reliefs of the plaint as presented to the Sub-Court at Cocanada on return by the former Court, I am, satisfied that there are substantial and material points of difference between the two plaints which preclude the application to the present case of the ruling of the Full Bench reported in Visweswara Sarma v. Nair I.L.R. (1911) 21 M.L. 35 Mad. 567 (F.B.) on which strong reliance was placed by Mr. V. Suryanarayana the learned advocate for the petitioner.
2. The question which arose for decision in the Full Bench case was whether, where a Court after receiving a plaint and cancelling the stamp affixed thereto returns the plaint for presentation to the proper Court under Order 7, Rule 10, Civil Procedure Code, the latter Court to which the plaint is presented is bound to give credit for the fee already levied by the former Court. The unanimous answer given by the three learned Judges, Sir Charles Arnold White, C.J., Munro and Sankaran Nair, JJ., is in the affirmative. That this ruling is applicable, only to cases in which the same plaint is presented to the proper Court, as was originally presented to the Court without jurisdiction, is unmistakably clear from what all the three learned Judges expressly say. Says the Chief Justice at page 572 of the report:
The plaint presented to the small Cause Court, is the same plaint as that which was presented to the city civil court and returned by that court under 7, Rule 10 of the first schedule to the civil procedure code.
3. Sankaran Nair, J., observes to the same effect in the opening part of the judgment at page 574 of the report by referring to the plaint later presented to the Small cause court as being the same plaint as had been earlier presented to the city civil court. Munro, J., at page 573 refers to the plaint as presented to the Small Cause court as being the plaint as returned by the City Civil Court.
4. What I have therefore to decide is whether the plaint returned for presentation, and the plaint as presnted to the Proper Court are in the present case substantially, if not verbatim et literatim the same, as required for the application of the Full Bench ruling. I am of opinion that they are not. For, it is not, as Mr. Suryanarayana would contend, that defendants 1 and 2 and 7 to 10 who figured in the original paint simply disappeared from the plaint at the stage of its presentation to the Sub-court at Cocananda. If all that happened was that these defendants disclaimed any interest suit property in their written statements filed in the Peddapuram Court, and that therefore the plaintiff deleted their names from the plaint before its presentation to the Sub-Court, Mr. Suryanarayana would perhaps be right in his submission that credit should be given to him for the court-fee paid on the plaint as originally filed in the Court of the District Munsiff by the Sub-Court to which the plaint was presented later. I am saying 'perhaps,' because, I have a doubt in my mind whether the only changes permitted to the plaintiff before presenting the returned plaint to the proper Court are not such as are necessitated by the order of return for presentation to the Court. If the changes allowed are not merely such, but more, it seems to me that the test of the same plaint laid down by the Full Bench ruling may not be receiving the full effect that it ought to receive. However that may be, as pointed out by the learned Subordinate Judge in his order under revision and borne out by my own comparison and contrast of the two plaints, there are substantial changes made in the allegations part as well as in the causes of action part of the plaint before it came to be presented to the Sub-Court. The gist of the action in the original plaint is that:
the first defendant failed to vacate the land and in collusion with the other defendants. who also forcibly kept possession to themselves, prevented the plaintiff and her new lessees from taking possession.
The allegation is that:
the plaintiff's new lessee consequently failed to pay the intended advance of Rs. 500 and gave up the lease itself
cause of action arose on 1st July, 1945.
The plaint as presented to the Sub-Court, on the other hand, says that the cause of action against the defendant therein (defendants 3 to 6 of the original plaint) aro se on or about 1st May, 1945, that they:
trespassed and began their enjoyment preventing the plain tiff from taking possession.
Nothing is said in the Sub-Court plaint about the new lessees or their failure to pay the intended advance of Rs. 500 under the proposed lease in their favour or their abandonment of that lease, such as we find said in the District Munsiff's Court plaint. In these circumstances I find it difficult to hold that the learned Subordinate Judge erred in insisting upon a fresh court-fee over the plaint as presented to his Court without giving credit for the amount of court-fee already paid on the plaint as filed in the Court of the District Munsiff of Peddapuram.
5. I accordingly dismiss this revision petition, but, as the respondents have not appeared, without costs.