1. This is an appeal against a decision of the Subordinate Judge of Patna, dated the 14th of February 1901, rejecting a plaint under Section 54, Clause (6) of the Code of Civil Procedure.
2. The plaintiff instituted this suit to obtain a declaration that the defendant No. 1 is his lawfully married wife according to Mahomedan law, and he prayed that a decree might be passed in his favour directing the defendant No. 1 to live with him and that a decree might also be given him against the defendants for restitution of conjugal rights.
3. The plaintiff stamped his plaint with a Court fee of Rs. 25, and the learned pleader, who appears on his behalf in this Court, explains that he paid this stamp on this computation, namely, Rs. 10 for a declaratory decree, Rs. 10 for an injunction, and Rs. 5 under Article 15 of Schedule II of the Court Fees Act, for a suit to obtain possession of a wife. At the same time the plaintiff valued his suit for the purposes of jurisdiction at one lakh and 26 rupees.
4. The Subordinate Judge held that the Court fee paid was insufficient, inasmuch as the section of the Court Fees Act applicable to the case was Section 7, Clause IV (c), the suit being one 'to obtain a declaratory decree or order, where consequential relief is prayed'; and that that being so, the suit ought to have been valued and the Court fee should have been paid according to the amount, at which the relief sought is valued in the plaint.
5. The learned Pleader for the appellant in this Court contends that the Subordinate Judge is wrong, and that he should have held that the Court fee payable was only Rs. 5 under Article 15 of Schedule II of the Court Fees Act.
6. After fully considering the arguments advanced by the learned pleaders and Counsel on both sides, we think that the decision of the Subordinate Judge is correct. The suit appears to us to be not merely a suit for possession of a wife, inasmuch as the parties are at issue as to whether the defendant No. 1 is the plaintiff's wife or not. It appears to us that the cl ss of suits contemplated by Article 15 of Schedule II of the Court Fees Act are suits in which the question of the marital relation is admitted, and in which there is a contest between the parties, as to whether the defendant is justified in leaving the protection of her husband or in resisting his attempts to obtain possession of her. But we think that Article 15 of Schedule II of the Court Fees Act cannot apply to oases such as this, in which the parties are disputing as to whether the defendant No. 1 Was ever married to the plaintiff or not, and in which the plaintiff seeks for a declaration that the defendant No. 1 is married to him, and only in the event of his obtaining this declaration prays for the consequential relief that the defendant No. 1 should be ordered to live with him, and that the other defendants should be directed to give her up to him. We, therefore, think that the Subordinate Judge is quite right in holding that the Court-fee paid on the plaint is insufficient, and in rejecting the plaint under Section 54, Clause (b), of the Code of Civil Procedure. The mode in which the plaintiff has attempted to value the suit in the lower Court, is wrong, and inconsistent with the plea he sets up in this Court. He cannot place his suit under two different articles of the schedule to the Court Fees Act, saying that he has paid Rs. 10 for the declaratory decree he seeks for, and at the same time Rs. 5 under the article for a suit for possession of his wife. Such a computation is utterly unknown under the Court Fees Act, and we think totally against the practice of the Courts. It appears, therefore, that the Subordinate Judge was right in his decision, and we think that this appeal must be dismissed.
7. The pleader for the appellant contends that the Subordinate Judge is also wrong in giving the defendants a decree for costs. He urges that the pleader's fee should not have been assessed at Rs. 1,100 upon the valuation which he put upon the relief sought for in this case. We think, however, that it is very doubtful whether the plaintiff is entitled to appeal against the order of the Subordinate Judge as to costs, inasmuch as no matter of principle is involved in the question which is raised in this Court. But be that as it may, we do not think on the merits that the Subordinate Judge was wrong. The suit appears to have been strenuously contested in the Court below. Witnesses were summoned, if not examined, and arguments were heard, and in these circumstances we do not think it necessary to interfere with the discretion imposed by the law on the Subordinate Judge in assessing the costs of the suit. The appeal is dismissed with costs.
8. The costs for the paper book having been paid by the respondents in this case, they will, of course, be entitled to recover these costs from the appellant.