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Rani Kulandai Pandichi Alias Kulandaivelu Nachiar and anr. Vs. Indran Ramaswami Pandia Thalavan (Late a Minor Now Declared a Major and His Guardian Discharged) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in108Ind.Cas.539; (1928)55MLJ345
AppellantRani Kulandai Pandichi Alias Kulandaivelu Nachiar and anr.
Respondentindran Ramaswami Pandia Thalavan (Late a Minor Now Declared a Major and His Guardian Discharged)
Cases Referred and Abdul Hussain v. Kasi Sabu I.L.R.
Excerpt:
.....things were done and in that view the high court has power to interfere with that order. 932 the high court interfered in revision where the order like the present one simply directed payment >of an additional sum as court-fees. 8. it seems to us that, while courts would not generally interfere in revision where an equally efficacious remedy is open to the part, they have in several cases interfered where the remedy by way of appeal would entail unnecessary hardships on the party, involve multiplicity of proceedings or would not give the party as complete and efficacious a relief as interference with an interlocutory order, and the case satisfied the requirements of section 115, civil procedure code. it is difficult to see why, if the case is one of declining to exercise jurisdiction..........cannot be said to have that effect. it has been held that an order permitting the withdrawal of a suit or appeal is not a decree within the meaning of the civil procedure code. we need only refer to patlogi v. ganu i.l.r. (1891) b. 370 jogodindra nath v. sarat sundari debi i.l.r. (1891) c. 322 and abdul hussain v. kasi sabu i.l.r. (1900) c. 362.12. we think the proper court-fee payable is that payable under article 17-a of schedule ii of the court fees act as amended by madras act v of 1922. it is conceded that the value of the suit for purposes of jurisdiction is over rs. 10,000 and we think the court-fee payable would be rs. 500. we set aside the order of the subordinate judge and direct that the petitioners do pay the difference between the court-fee actually paid and rs. 500 which.....
Judgment:

Kumaraswmai Sastri, J.

1. This revision petition arises out of an order of the Subordinate Judge calling upon the plaintiffs to amend the valuation in the plaint and to pay additional court-fees. The suit was to set aside the compromise and the rajinama decree passed in O.S. No. 35 of 1917. O.S. No. 35 of 1917 was filed by the present plaintiffs who claimed to be entitled to the zamindari of Thalavankottai. The prayers in the plaint were for possession of the properties in the schedules to the plaint with past and future mesne profits and in the alternative for maintenance at Rs. 250 a month and past maintenance. The suit was valued at Rs. 1,00,000 and a court-fee of Rs. 2,300 was paid. The suit was compromised and a rajinama decree was passed. By the rajinama the plaintiffs withdrew their claim in respect of the immoveable properties and got a decree for maintenance at Rs. 50 a month for each of them and also residence. It was recited in the rajinama that the claim for arrears of maintenance has been satisfied. A decree was passed in terms of the rajinama and it is to set aside this decree that the present suit has been filed. The question is whether stamp duty has to be paid on the claim as made in O.S. No. 35 of 1917 or only on the reliefs which the plaintiffs claim in the present suit and this turns on the construction of Section 7, Section (iv)(a) of the Court Fees. Act as amended.

2. A preliminary objection has been taken as to the maintainability of the Civil Revision Petition on the ground that an appeal would lie against an order dismissing the suit if court-fee was not paid. We are unable to uphold this contention. We think 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 jurisdiction as a party is entitled to have his case tried if he paid the court-fee. In Sudalimuthu Pillai v. Sudalimuthu Pillai (1922) 17 L.W. 623 Oldfield, J., held that in such cases the provisions of Section 115, Civil Procedure Code, have been complied with. After negativing the contention that a conditional order, the non-compliance of which would entail the dismissal of the suit, is not revisable under Section 115, the learned Judge observes:

Generally it is impossible to hold that an order directing the dismissal of an appeal in case the payment is not made is not a refusal to exercise the jurisdiction in that appeal.

3. In Dodda Sannekappa v. Sakrawa 36 IND.CAS. 831 it was held by Srinivasa Aiyangar, J., that in a suit for a declaration that certain transactions are not binding on the plaintiff, he is entitled to put his own valuation on the relief which he seeks, that the High Court can interfere in revision with an erroneous order for payment of deficient court-fee and that it is not necessary that the plaintiff should wait for the dismissal of the suit by disobeying the order and then move the High Court by way of appeal or revision. The learned Judge observes:

A preliminary objection was taken by the respondent's Counsel that T should not interfere at this stage, but that the plaintiff should wait for a dismissal of his suit by disobeying the lower Court's order and then come up by way of appeal or revision.

4. In a case Ramrup Das v. Mohunt Shiyaram Das 14 C.W.N. 932 the learned Judges held that an order like the present one was really an order declining to entertain jurisdiction unless certain things were done and in that view the High Court has power to interfere with that order. I follow that decision and hold that I have power to interfere at this stage.

5. In Ramrup Das v. Mohunt Shiyaram Das 14 C.W.N. 932 the High Court interfered in revision where the order like the present one simply directed payment > of an additional sum as court-fees. The learned Judges, Holmwood and Chatterjee, JJ., in dealing with the preliminary objection that no revision lay, observed:

But this Court has in more than one case recently interfered with interlocutory orders where such orders appear to be a denial of jurisdiction, and in this case to inform a member of the public who is presumed to bring a declaratory suit in the interest of the public that he cannot bring such a suit without valuing his plaint at the value of the property involved, does really in our opinion amount to shutting him out of the right of suit, and it would be useless to defer this matter until the plaintiff had by neglecting to take any further steps in the matter incurred the rejection of his plaint.

6. In Karuppanna Thevar v. Angammal : AIR1926Mad678 the suit was by a reversioner for a declaration that a particular alienation by the widow was not binding and for a receiver, and the question was what was the court-fee payable? A revision petition was filed against the order of the Subordinate Judge and a preliminary objection was taken as to whether a revision lay. Venkatasubba Rao, J., following the decisions in Dodda. Sannekappa v. Sakravva 36 IND.CAS. 831 and Ramrup Das v. Mohunt Shiyaram Das (1910) 14 C.W.N. 932 above referred to, held that the High Court could interfere in revision. In Sudalimuthu Pillai v. Peria Sundaram Pillai (1924) 48 M.L.J. 514, Krishnan, J., held that a revision would lie to the High Court against an erroneous order of the Subordinate Judge as to the proper court-fee payable. The learned Judge was of opinion that it was open to the Court to interfere because the question was really one of jurisdiction as the plaint would have to be rejected if proper stamp duty was not paid and that the remedy by way of appeal was a cumbrous remedy. A similar view was taken by Venkatasubba Rao, J., in Venkataramani Aiyar v. Narayanaswami Aiyar (1924) 48 M.L.J. 688.

7. A contrary view has, however, been taken by Phillips, J., in Acha v. Sankamn . The learned Judge distinguished the case in Sudalimuthu Pillai v. Sudalimuthu Pillai (1922) 17 L.W. 623 above referred to on the ground that in that case the order demanding additional court-fee was coupled with an order of dismissal in case of default. It is difficult to see how the mere addition of the consequence which would under Rule 11 of Order VII, Civil Procedure Code, follow from the non-payment of the court-fee demanded would make any difference, as the same consequence would follow even if the order was silent as to what was to be done in the case of non-payment. The other Madras decisions above referred to were not brought to the notice of the learned Judge and he preferred to follow the decision of the Patna High Court in Mt. Lachmibati Kumari v. Nandkumar Singh (1920) 5 Pat. L.J. 400, which view Krishnan, J., was not inclined to follow and the decision of the Calcutta High Court in Gobindu Nath Doss v. Nitya Kali Dasi 51 Ind.Cas. 581. In Chinnasami Pillai v. Pavayee Ammal 102 Ind.Cas. 877 Waller, J., followed the decision of Phillips, J., in Acha v. Sankaran , and observed that although other Judges of this Court have taken a different view, he prefers to follow the view of Phillips, J., on the ground that the petitioner has other remedies open to him and that it is no answer to say that the appropriate remedy was more cumbrous.

8. It seems to us that, while Courts would not generally interfere in revision where an equally efficacious remedy is open to the part, they have in several cases interfered where the remedy by way of appeal would entail unnecessary hardships on the party, involve multiplicity of proceedings or would not give the party as complete and efficacious a relief as interference with an interlocutory order, and the case satisfied the requirements of Section 115, Civil Procedure Code. In the present case the plaintiffs will have to pay an additional stamp duty of over Rs. 1,000 and then raise the question in appeal from the decree which the Subordinate Judge may pass as to the stamp duty leviable or refuse to pay the stamp duty ordered which would entail the necessary consequence of getting the suit dismissed and then appeal to the High Court. The appeal will have to be stamped with the full stamp duty and, if the Lower Court was wrong, they would have to apply for a refund and get it later on. It may be that the party is not able to pay the additional stamp duty required in which case he will have to file the appeal as a pauper. It is difficult to see why, if the case is one of declining to exercise jurisdiction and the requirements of Section 115 are otherwise satisfied, the High Court should decline to interfere when by timely interference it will save a great deal of unnecessary hardship. We think the mere fact that an appeal would lie later on, on the consequential orders passed by the Subordinate Judge if the stamp is not paid, is no ground for refusing to entertain the petition to revise the order ' demanding an erroneous court-fee and declining to proceed with the suit unless the sum erroneously demanded is paid. We overrule the preliminary objection.

9. As regards the proper court-fee, the decree which is sought to be set aside simply states that the suit as regards the immoveable properties is withdrawn and the only relief granted by the decree is the payment of maintenance. The compromise or the decree does not also give any relief or confer any rights as regards the moveable property claimed but only allows maintenance. The Court Fees Amendment (Madras) Act (V of 1922) adds the following paragraph as (iv)(a) between paras, (iv) and (v) of the principal Act. Para, (iv)(a) runs as follows:

In a suit for cancellation of a decree for money or other property having a money value or other document securing money or other property having such value,

according to the subject-matter of the suit, and such value shall be deemed to be, if the whole decree or other document is sought to be cancelled, the amount or the value of the property for which the decree was passed or the other document executed,

if a part of the decree or other document is sought to' be cancelled, such part of the amount or value of the property.

10. It is difficult to see how the compromise decree which is sought to be set aside secures to the plaintiffs anything except the maintenance awarded. It does not secure to them any immoveable property. The effect of setting aside the compromise decree will be that the suit which has been withdrawn and in respect of which full court-fee on the value of the property has been paid would have to be proceeded with and it is clear that the setting aside of the compromise decree would not by itself give any property to the plaintiffs but would only give them the right to prosecute a suit which according to them has been terminated in a manner which is not binding on them owing to fraud and other circumstances set out in the present plaint.

11. Permission to withdraw a suit decides no matters in controversy and does not confer any rights on a party, and the fact that the person withdrawing is precluded from bringing a fresh suit on the same cause of action cannot be said to have that effect. It has been held that an order permitting the withdrawal of a suit or appeal is not a decree within the meaning of the Civil Procedure Code. We need only refer to Patlogi v. Ganu I.L.R. (1891) B. 370 Jogodindra Nath v. Sarat Sundari Debi I.L.R. (1891) C. 322 and Abdul Hussain v. Kasi Sabu I.L.R. (1900) C. 362.

12. We think the proper court-fee payable is that payable under Article 17-A of Schedule II of the Court Fees Act as amended by Madras Act V of 1922. It is conceded that the value of the suit for purposes of jurisdiction is over Rs. 10,000 and we think the court-fee payable would be Rs. 500. We set aside the order of the Subordinate Judge and direct that the petitioners do pay the difference between the court-fee actually paid and Rs. 500 which we hold is the fee payable within two months from this date. Costs of this petition will abide and follow the result of the suit.


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