1. The only point in this Letters Patent appeal is whether O.S. No. 316 of 1917 was dismissed for default of appearance under Order 9, Rule 8. The District Munsif, Tirur, in whose Court the suit was filed, directed the plaintiffs to pay additional Court-fee on or before 19th September 1917. The plaintiffs were granted time to pay additional Court-fee on 12th October 1917 and on 31st October 1917 the District Munsif dismissed the suit. He made this note in dismissing:
The plaintiffs have not paid additional Court-fee. The plaintiffs are absent. The plaintiffs' pleader has no instructions.
2. The question is whether this order is one made under Order 7, Rule 11 or under Order 9, Rule 8. The plaintiffs were directed to pay additional Court-fee and they obtained time more than once and on 31st October 1917, they were absent and the vakil said 'that he had no instructions.' The expression 'Suit is dismissed for default' was interpreted both by the learned Judge in the second appeal and by the District Judge as meaning default of appearance. Where the Court asks the plaintiff to pay additional Court-fee and he fails to pay it, the course to be adopted is either to grant further time to pay the additional Court-fee if asked for, or to reject the plaint for not having paid the proper Court-fee. For Order 7, Rule 11 is imperative.
The plaint shall be rejected in the following cases. (b) Where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.
3. In this case the plaintiffs in O.S. No. 316 of 1917 failed to pay the additional Court-fee even though further time was granted. It is urged by Mr. Menon for the respondent that the additional reasons given by the Munsif, namely.
The plaintiffs are absent. The plaintiffs pleader has no instructions' should be held to imply that the District Munsif proceeded under Order 9, Rule 8.
4. Where the proper Court-fee is not paid, the Court has no other course but to dismiss or reject the plaint and if the deficiency in the Court-fee is discovered after 'the suit has been taken on file, the Court's order that the suit is dismissed would not necessarily mean that the Court proceeded to do something which it had no power to do. The presumption is that the Court does what it has power to do and not anything which it has not power to do. To say the least, the expression 'suit is dismissed for default' is ambiguous and the ambiguity should not be made to weigh against the plaintiffs, for, that would imply that the Court did something which it had not the power to do. Where the deficiency in the Court-fee has not been paid, the Court has no jurisdiction to pass any order on the merits. We may take it that the expression:
The plaintiffs are absent and the vakil has no instructions
as meaning that, if the vakil had asked for time, the Court might have considered the application on its merits. As there was no appearance, he could not very well grant further time for no application was made to him and, therefore, he had to reject the plaint, and, when the main reason given is that the plaintiffs have not paid additional Court-fee, it cannot be said that the suit was not dismissed for nonpayment of the proper Court-fee. 'In this view we hold that the decree of the learned Judge in the second appeal and the decree of the learned District Judge are wrong and should be set aside. We therefore set aside the order on the second appeal and the order of the District Judge and direct the District Judge, South Malabar, to restore appeal No. 510 of 1920 to file and hear the same on the merits. Costs will abide the result. The Court-fee paid for the second appeal and the Letters Patent appeal will be refunded.