1. This is an appeal from the order passed by the learned Subordinate Judge of Tiruvarur in O.S. No. 4 of 1937 directing the plaintiff to pay additional court-fees over and above the amount paid with the plaint. I have advisedly called it an appeal because that is what it really is though it purports to be a Revision Petition. The petitioner has no fault to find with the order of the learned Sub-Judge, except that on its merits it is wrong. I am clearly of opinion that this is not a matter falling under Section 115, Civil Procedure Code.
2. The suit was one for a permanent injunction to restrain the defendants from interfering with the plaintiff's joint possession of the suit properties as joint trustee and if necessary to put the plaintiff in joint possession of the office of trusteeship and of the properties described in the plaint. A contention was raised before the learned Subordinate Judge that the court-fee paid was not sufficient and issue 9 was framed in this form, 'has proper court-fee not been paid?' The learned Subordinate Judge has examined the terms in which the plaint is cast and has discussed various cases and has decided that the plaint was insufficiently stamped. He has concluded that the suit was really a suit for a declaratory decree with consequential relief and if that be so his decision that the suit falls under Section 7(iv)(c) of the Court-Fees Act is correct It is not contended before me that the learned Subordinate Judge had no jurisdiction to decide what was the proper court-fee. On the other hand learned Counsel for the petitioner has agreed that the learned Subordinate Judge had full jurisdiction to decide this matter. It has not been alleged either in the petition or in argument that the learned Subordinate Judge in the exercise of his jurisdiction to decide this question has acted illegally or with material irregularity. It is therefore impossible to bring this case within the terms of Section 115, Civil Procedure Code.
3. I have been referred to several cases in which I am told that learned Judges of this Court have interfered in circumstances similar to these. The only case decided by a Bench of this Court to which ray attention has been drawn is the case of Kulandai Pandichi v. Ramaswami Pandia Thalavan (1927) 55 M.L.J. 345 : I.L.R. 1927 51 Mad. 664. In. that case Mr. Justice Kumaraswami Sastri and Mr. Justice Wallace held that where 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, the High Court will entertain a revision petition to set aside the order, although an appeal would lie later on the consequential order that might be passed by the lower Court if the additional stamp duty was not paid. That case is clearly distinguishable from the one now under consideration. The learned Subordinate Judge has not in this case refused to proceed with the suit. He has decided what is the proper court-fee in his opinion and he has ordered the plaintiff to pay court-fees accordingly. In doing so he has done no more and no less than his duty. All that he has done in addition to this is to order on the 21st July, 1938, that the suit be called again on the 4th August, 1938, for the plaintiff to pay the deficit court-fees. I am unable to see in what way the learned Subordinate Judge can be said to have failed to exercise any jurisdiction in this case. He has not refused to proceed with the suit and therefore this case does not fall within the principle of Kulandai Pandichi v. Ramaswami Pandia Thalavan (1927) 55 M.L.J. 345 : I.L.R. 51 Mad. 664. I am aware that single Judges of this Court have taken the view that the order of a Subordinate Court determining the amount of court-fee payable by a plaintiff is liable to be revised when it is unfavourable to the plaintiff and I am aware that there is a decision of a Bench of this Court in the case of Secretary of State for India v. Raghunathan : AIR1933Mad506 to the effect that the Crown cannot be heard in revision when the decision of the Court on the subject of court-fees is favourable to the plaintiff and unfavourable to the Government. On the other hand, there are several decisions of single judges to the effect that an order determining the proper court-fee is not liable to be revised under Section 115. See the case reported in Acha v. Sankaran and the decision unreported of Waller, J., in C.R.P. No. 451 of 1926.
4. But (I say it with all respect) none of the learned Judges who, sitting singly, have held that a mere decision as to the amount of court-fee is revisable has explained how it can be said that such a case falls within Section 115, Civil Procedure Code. In the case of Sudali Muthu Pillai v. Sudali Muthu Pillai (1922) 17 L.W. 623 Mr. Justice Oldfield held that revision was possible. But that was clearly because the order determining the amount of court-fee included an order directing the dismissal of the appeal in case the payment were not made. The reasoning was that in dismissing the appeal the lower Court had acted without jurisdiction (assuming that the decision on the question of court-fee was wrong). In Sudalimuthu Pillai v. Peria Sundaram Pillai (1924) 48 M.L.J. 514 Mr. Justice Krishnan held that a revision would lie to the High Court against the erroneous order of the Subordinate Judge as to the proper court-fee payable, expressing the 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 Mr. Justice Venkatasubba Rao in Venkata Ramani Aiyar v. Narayanaswami Aiyar (1924) 48 M.L.J. 688. With all respect to those learned Judges I am of opinion that their decisions were incorrect. It is not possible in a case like this to say that the lower Court has acted without jurisdiction or has refused to exercise any jurisdiction vested in it. All that can be said on the question of jurisdiction (and some of the learned Judges say it explicitly) is that although so far the lower Court has acted well within its jurisdiction, if the High Court does not interfere at this stage the lower Court will go on at some time in the future to do something which (if its decision on the matter of court-fees is wrong) will be without jurisdiction. In the present case for example the argument is that if the order of the lower Court is not revised, the lower Court will be obliged, when the plaintiff declines to pay the additional court-fee, to reject the plaint. Assuming that the lower Court's decision on the question of court-fee is wrong, that order of rejection of the plaint will be without jurisdiction. Therefore, it is urged, the High Court should interfere now. In my humble opinion this argument is unsound. An order which by itself does not fall within the terms of Section 115, Civil Procedure Code, cannot be revised by this Court merely because it is bound to be followed by some other order which may be without jurisdiction. Moreover, it is not possible to say with absolute certainty in the present case that the learned Subordinate Judge will be obliged to reject the plaint. It is quite conceivable that the plaintiff may decide to pay court-fees as prescribed by the learned Subordinate Judge. If he does, no question of rejection of his plaint will arise. Even if he does not it is not beyond the bounds of possibility that the learned Subordinate Judge may discover, or think, that he has made a mistake in the order now under appeal and may cancel his demand for extra court-fees. Whatever the future may bring forth, I am quite clear on this point, that the learned Subordinate Judge so far has done nothing beyond his jurisdiction and has not refused to exercise any jurisdiction vested in him by law. His order, determining the proper court-fee is not liable to be, revised under Section 115, Civil Procedure Code. On this ground alone I would dismiss this application.
5. Since I have heard the matter on the merits, I will give my opinion on the merits also. I consider that the decision of the learned Subordinate judge was perfectly right. The plaintiff prays only for an injunction against the persons with whom he says he is a joint trustee, and if necessary for joint possession along with them. But it is quite clear from the plaint as a whole that his right to be a joint trustee is disputed by several of the defendants and that he cannot possibly get either the injunction or the relief for possession unless his right to be a joint trustee is declared.
6. This application is therefore dismissed with costs of the Government Pleader.