Kumaraswami Sastri, J.
1. This is a petition filed under Section 115, Civil Procedure Code, and Section 15 of the Charter Act to revise the order of the District Munsif of Tirupathur, dated the 24th April 1915, wherein he held that the property in dispute fell under Section 7, Clause V(b), of the Court Fees Act (Act VII of 1870) and that the suit was rightly valued and was within the pecuniary limits of his jurisdiction.
2. The plaintiff, claiming to be the purchaser of the properties mentioned in the plaint for Rs. 7,000, sued for a declaration of title, for an injunction restraining the defendants from interfering with his enjoyment of the plaint properties and for possession of the properties if the Court was of opinion that the plaintiff was not in possession. The plaintiff valued the suit at Rs. 1,000, the details of the valuation being Rs. 5 for the injunction asked for, Rs. 364-11-0 for possession, Rs. 115 value of three wells, Rs. 500 value of cocoanut trees and Rs. 27 value of plantain trees. The defendants objected to the valuation and inter alia stated that the value of the cocoanut tope was Rs. 4,500. The contention for the defendants, so far as it is material for the purpose of this petition, is that part of the property claimed is a cocoanut garden on which there are several cocoanut trees (plaintiff admitting at least 500) and that the case falls under Section 7, Clause V(e) which provides that where the subject-matter is a house or garden the fee is payable on its market value. The District Munsif was of opinion that, even assuming there was a cocoanut garden on the property, it did not fall within the definition of a 'garden' in Section 7, Clause V(e), but that it should be treated as assessed land.
3. Under the Suits Valuation Act, VII of 1887, the value for purposes of jurisdiction and of Court-fees is the same, and the point for determination is whether Clause V(c) of Section 7 is to be applied or Clause V(e) of the Court Fees Act. The District Munsif seems to treat the question as a dry question of law, but I think that this is a question of fact to be determined on the evidence in each case. A garden has been defined in Murray's Dictionary as an enclosed piece of ground devoted to the cultivation of flowers, fruits or vegetables' and there can be little doubt that cocoanuts are edible fruits and that they are largely used for culinary purposes in this country. If the trees stand on a well-defined portion of the property which is marked off from the rest, I do not see why the land on which the trees stand should not be a cocoanut garden. The District Munsif was of opinion that the Full Bench decision of this Court in Audathodan Moidin v. Pullambath Mamally 12 M.K 301 decided that the word garden is to be taken as meaning ornamental, pleasure or vegetable garden: but I do not think that the District Munsif is right in his view. The question in the above case related to the valuation of a paramba on which there were cocoanut trees. The land (being in Malabar) was not assessed and all that their Lordships decided was that the case fell either under Clause V(c) or Clause V(c) of Section 7 of the Court Fees Act, according as the paramba was of a description that would come under the definition of a garden or not. The following observations of their Lordships. at page 304 make this clear: In fact in Malabar a tree tax is substituted for the land assessment, and whether or not a paramba is assessed depends on the nature of the trees grown therein. It is, therefore, evident that parambas should either be classed as lands paying no revenue or as gardens. The word garden' is nowhere defined in Act VII of 1870 but from its occurring in connection with the word houses, we are of opinion that the term refers primarily to a garden in the English sense-ornamental or pleasure or vegetable, and that parambas do not ordinarily come under that category. We do not, however, wish it to be understood that in no case should a paramba be treated as a garden for the purpose of the Court Fees Act. Whether or not the paramba sued for is to be regarded as a garden or as land which pays no revenue, is a question of fact which must be decided in each case.' I think the proper course that the District Munsif should have taken was to have called for evidence as to whether, having regard to the position of the land on whichsteer the stand and the number of trees thereon, the plot of land can be said to be a garden or not. A. few isolated trees on a piece of land will not make it a garden: but where a number of trees are planted on a particular piece of land which is well defined and can be marked off from the rest of the land, it is difficult to see why that particular plot should not be treated as a garden if the land is used for the cultivation of flowers, fruits or vegetables.
4. It has been argued by the respondent's Vakil that, if the case falls under Clause V(a), (b) or (c), the market value is no test for determining the Court fees payable even though the property may fall under the definition of garden and that Clause V(c) applies only where Clause V(a)(b) and (c) cannot apply. I am unable to follow this argument, for a garden must be situated on some land or other and all land must be assessed or unassessed. If, therefore, assessment was the criterion, Clause V(e) is perfectly unnecessary. In my opinion the proper construction of the section is that whether the land is assessed or un assessed it will fall under Clause V(e) if it can be defined as a 'garden'.
5. There is very little authority directly in point. The only case in point, Bhag Bhari v. Jawahir Singh 25 Ind. Cas. 545 is in favour of the view I have taken.
6. A preliminary objection was taken that no revision lay, as the petitioner would have the right of appeal against the decree if it went against him. Cases have been quoted on both sides in some of which the High Court declined to interfere with interlocutory orders and in some of which the High Court did so. For the petitioner reference has been made to Veerabadran Ohetty v. Nataraja Desikar 25 Ind. Cas. 545: 155 P.W.R. 1914; Somasundaram Chettiar v. Manicka Vasaka Desika Gnana Sammanda Pandara Sannidi 3 M.L.T. 246; Nagaraja Pillai v. Vythinatha Iyer (1911) 2 M.W.N. 369; Subramania Pattar v. Narayana Pattar 28 Ind. Cas. 189 Venkatachallam Pattar v. Parasu Pattar 26 Ind. Cas. 106 and Yatindra Nath v. Hari Charan 26 Ind. Cas. 954 : 20 C.L.J. 426.
7. For the respondents reference has been made to In re Nizam of Hyderabad 9 M.K 256, Ramamurthi v. Kunchuvarthy Venkata Sita Ramachandra Row Garu (1914) M.W.N. 95; Venkata Subbiah v. Seshachalam 12 Ind. Cas. 173 Chidambarum Chetty v. Nagappa Chetty 16 Ind. Cas. 820; Jagannatha Mudaliar v. Vathyar Appasawmy 24 Ind. Cas. 782 : 1 L.W. 233; Rudrappa v. Narsing Rao 7 Bom. L.R. 12 and A. Gaeble v. Ramayi Ammal 24 Ind. Cas. 781.
8. It is difficult to reconcile all the observations made by the learned Judges who took part in the cases above referred to. In case of discretionary powers vested in Court, I do not think any hard and fast rule can be laid down so as to fetter that discretion in advance in all cases that may arise in future. The observation of Jenkins, C.J., in Hume v. Poresh Chunder Ghose 22 Ind. Cas. 321that discretion given in the widest terms by the Legislature ought not to be crystallised or restricted by a series of cases but should remain free and untrammelled, to be fairly exercised according to the exigencies of each case' may well be borne in mind. It seems to me that the power of superintendence and the powers given by Section 115 were intended to give the High Court jurisdiction to see that the proceedings before the lower Courts were properly conducted, and I see no reason why the High Court should refuse to set right matters if by doing so it would save unnecessary expense or delay or a multiplicity of proceedings. The correct rule, in my opinion, seems to be that while Courts will not generally interfere in revision where an equally efficacious remedy is open to the party by way of appeal, it will do so where it would not be possible to put the parties in the same position in appeal as they would have been if the irregularities had beer, set right in the lower Court by-timely interference.
9. Having regard to the provisions of the Suits Valuation Act, it seems to me that the relief which the petitioner will get in appeal would not be co-extensive with the relief which he will get now. There can be little doubt that a party is entitled, as a matter of right, to have a suit tried before a Court which has got pecuniary jurisdiction to try it and that, where a Court on an erroneous view of the law proceeds to exercise a jurisdiction which it does not possess, there is nothing to prevent the party from immediately taking such steps as the law allows to set aside the order of the lower Court. If, however, he chooses to wait until the trial is over and to take the chance of a decision in his favour, Section 11 of the Suits Valuation Act steps in to prevent him from getting the proceedings of the lower Court set aside simply on the ground of error as to jurisdiction, unless he can show that he is prejudicially affected in the disposal of the suit on its merits. The fact that a restricted right is given to the party after judgment had been .pronounced is no reason for depriving him of his right to take immediate steps and have his suit tried by a Court which, in law, has pecuniary jurisdiction.
10. The plaintiff admits in his plaint that he purchased the property for Rs. 7,000 and the values the relief at Rs. 1,000. The district Munsif, without taking any evidence on the objections of the defendants and without determining whether the suit is one which would fall within his jurisdiction, has, in my opinion, erroneously treated the question as a dry question of law and held that he has jurisdiction over the subject-matter in dispute.
11. Under these circumstances I think that this is a fit case for the High Court to interfere in revision and to direct at the early stage of the suit that the provisions of law as to jurisdiction are satisfied. I set aside the order of the lower Court and direct the District Munsif to dispose of the objections of the defendants as to jurisdiction according to law in the light of the observations above made. Costs of this petition will abide and follow the result.