1. The petitioner filed a suit in the Court of the Subordinate Judge of Ellore for the partition of the property of the joint family of which he was a member. He valued his suit for the purposes of jurisdiction at Rs. 69,804-4-6 and he paid a court-fee of rupees 100 under Article 17 (b), Court-fees Act. He claimed inter alia a share in certain lands which stood in the names of defendants 7 to 16. The lands had belonged to the family; but had been sold for arrears of land revenue. The purchasers at the auctions were defendants 7 to 16. The plaintiffs alleged that in buying the lands these defendants were acting on behalf of the joint family and therefore were mere benamidars. The court-fee examiner considered that with regard to this part of the claim the plaint should be stamped under Section 7 (v), Court-fees Act, and the Subordinate Judge agreed with this opinion. The plaintiff then filed the present petition for revision of the Subordinate Judge's order requiring him to pay the additional court-fee. He relied on the judgment of this Court in Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416. The petition came before Byers J., who formed the opinion that Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416 required reconsideration. As Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416 was decided by a Division Bench, the matter has been placed before a Full Bench. Having heard the arguments we are satisfied that the judgment should not be disturbed.
2. In Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416 Kumaraswami Sastriar and Wallace JJ. held that an application lay to the High Court for the revision of an order passed by a lower Court where that Court had erroneously directed the plaintiff to pay an additional court-fee. The insistence on the payment of the additional court-fee amounted, in the circumstances, to a refusal to exercise jurisdiction. The mere fact that an appeal would lie later from the consequential order passed by the Subordinate Judge if the stamp fee were not paid was no ground for refusing to entertain the petition. The same question has been previously considered by Venkatasubba Rao J., Krishnan J., Phillips J., and Waller J., all sitting alone, and their judgments disclosed a conflict of opinion, but. the decision in 51 Mad. 6541 settled the dispute so far as this Court was concerned until 1938.
3. In Katiya Pillai v. Ramaswamia Pillai A.I.R. 1929 Mad. 396, Venkatasubba Rao and Reilly JJ. agreed that the High Court could revise an order directing a plaintiff to pay an additional court-fee, but held that it should not interfere if the order was favourable to the plaintiff, that is, an application for revision would not lie at the instance of a defendant who had unsuccessfully questioned the court-fee paid on the plaint. The High Court could, however, interfere at the instance of a defendant if the question raised by him went beyond the amount of court-fee payable and related to the jurisdiction of the Court to try the case. In Secretary of State v. Raghunathan A.I.R. 1933 Mad. 506 the Government, which was not a party to the suit applied for the revision of an order with regard to the stamping of the plaint. The order was favourable to the plaintiff. Beasley C.J. and Bard-well J. held that the application did not lie. The case in Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416 was quoted with apparent approval. In view of these three Bench decisions one would have thought that the question of a plaintiff's right to apply for revision against an erroneous order requiring him to pay a further court-fee had been set at rest. But unfortunately it had not. The same question was raised in a case heard in 1938 by Burn J. : Manaithunainatha Desikar v. Gopala Chettiar A.I.R. 1939 Mad. 380. The learned Judge held that where a trial Court had determined the proper court-fee payable on the plaint and had held it to be insufficiently stamped, the order could not be revised by the High Court. He distinguished the case before him from that in Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416 on the ground that there had been no refusal to proceed with the suit. We consider that it is very regrettable that Burn J. did not accept the principle laid down in Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416, a decision which was binding on him, and we agree with the observations of Chandrasekhara Ayyar J. in Ratnavelu Pillai v. Varadaraja Pillai A.I.R. 1942 Mad. 585 that the facts in the case before Burn J. could not really be distinguished from those in Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416. The question may be a debatable one, but there must be finality somewhere and three Division Benches had in effect repudiated the opinion which found favour with Burn J. These decisions were final so far as the learned Judge was concerned.
4. Moreover, the opinion expressed by this Court in Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416 is shared by the High. Courts of Calcutta, Bombay, Lahore and Patna. In 1910 in Ramrup Das v. Sujaramdas (1910) 14 C.W.N. 932 the Calcutta High Court held that a plaintiff against whom an adverse order had been passed with regard to the court-fee payable on the plaint could move the High Court in revision without waiting for the dismissal of the suit for non-compliance with the order. This judgment was considered in Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416. The Calcutta High Court interfered at the instance of a plaintiff in Shailendranath Kundu v. Surendranath Sarkar : AIR1935Cal279 and in G.M. Falkner v. Mirza Mohamed Syed Ali : AIR1925Cal814 , it held that an application for revision did not lie at the instance of a defendant. The Bombay, Lahore and Patna cases are : Vithal Krishna v. Balkrishna Janardan (1986) 10 Bom. 610, Gurdevi Bibi v. Mohamed Baksh A.I.R. 1943 Lah. 65 which overruled Lalchand Mangalsen v. Beharilal Mehrchand A.I.R. 1924 Lah. 425 and Ramkhelavansahu v. Bir Surendrasahi : AIR1938Pat22 , respectively. The only High Court which has expressed an opinion contrary to Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416 and adhered to it, is the Allahabad High Court : see Gupta & Co. v. Kirparam Brothers : AIR1934All620 .
5. We hold that a revision petition lies when a Court subordinate to the High Court has held that the plaintiff has inadequately stamped his plaint, but that a petition for revision does not lie when a defendant has unsuccessfully challenged the adequacy of the stamp affixed by the plaintiff, unless a further question of jurisdiction is involved. This means that we affirm the decisions of this Court in Kulandaivelu Naohiar v. Ramaswami A.I.R. 1928 Mad. 416 and Katiya Pillai v. Ramaswamia Pillai A.I.R. 1929 Mad. 396. The petition now before us will be remanded to Byers J. for decision on the merits, viewed in the light of this judgment. The costs of the hearing before us will be made costs in the petition.