R.C. Mitter, J.
1. The property in suit, which is a plot of land in the town of Khulna, twelve and half cottas in area, is a part of a bigger block of 25 cottas, which originally belonged to defendant 1 and one Krishnadhone Pramanik in equal shares, On 8th January 1927 defendant 1 sold his undivided eight annas share in the block of 25 cottas to the plaintiffs, who thereafter instituted a suit for partition against Krishnadhone Pramanik. That suit terminated on 8th January 1929 with a compromise decree. A commissioner of partition was appointed and the block was partitioned by metes and bounds; the northern half with an area of 12 cottas was allotted to Krishnadhone and the southern half with an area of 12 cottas was allotted to the plaintiff. While the partition suit was pending defendant 1 sued defendant 2 for arears of rent on the allegation that the latter was a tenant under him of 10 cottas of land out of the said block of 25 cottas at a rental of Rs. 5-8-0. This 10 cottas of land has fallen to the plaintiff's allotment. The said suit was decreed ex parte on 25th July 1928. The plaintiff's case is that this was a false suit, based on a fictitious tenancy, instituted with a view to deprive him of the full benefit of his property, and the decree passed therein is a collusive one. Prima facie it is a suspicious proceeding, but as the merits of the case have not been investigated nothing need be said further about it at this stage.
2. Then followed certain proceedings between the plaintiffs and the defendants to this suit which have complicated matters, by reason of the misguided advice which the plaintiff received and by the Court omitting to make orders in strict conformity with the rules laid down in the Civil Procedure Code; but, in my judgment, if the substance and not the form of those orders, which I will hereinafter notice, be looked into, there is no difficulty in answering the question as to whether the suit out of which this appeal arises is maintainable or not. The proceedings which I have mentioned above are the proceedings of a title suit instituted by the plaintiff of the present suit against the defendants of this suit on 19th November 1928 while the partition suit was pending. That suit was numbered Title Suit 644 of 1928 and on transfer as Title Suit 558 of 1928. In that suit the plaintiff after reciting his title, and the fact that the aforesaid partition suit was pending stated that defendant 1 had obtained a collusive rent decree against defendant 2. He however prayed for a declaration of his title and for a declaration that the tenancy of defendant 2 under defendant 1 at a Jama of Rs 5-8-0 was a fictitious one and for injunction for restraining defendant 1 from executing his rent decree against defendant 2. The last mentioned prayer became unnecessary in the course of the trial as it was said that defendant 2 had satisfied the said decree out of Court. He did not value the lands in suit and pay ad valorem court-fee stamp but affixed to his plaint a court-fee stamp of Rs. 20 only. The Munsiff gave him a decree in terms of his prayer on 10th August 1929, that is granted him a declaration that the alleged tenancy of defendant 2 under defendant 1 was a fictitious one. The defendants preferred an appeal from the said decree being Title Appeal No. 393 of 1929. The Subordinate Judge by his judgment dated 30th May 1931 held that the suit as framed was not maintainable; the plaintiff being out of possession was bound to ask for recovery of possession, but as the plaintiff had made an application for amendment of his plaint for including a prayer for possession, while his suit was pending in the trial Court, he remanded the case to the trial Court. The order as made is in the following terms:
It is accordingly ordered that the appeal be allowed and the decision of the lower Court be set aside and that the suit be remanded to the lower Court for fresh trial after amendment of the plaint as prayed for by the plaintiff by his petition of 12th July 1929, and upon payment of the proper amount of Court-fees by him. Costs in this Court and in the lower Court will abide the final result.
3. Having regard to the fact that the plaint contained a prayer for permanent injunction whether the Subordinate Judge took a correct view of Section 42 of the Specific Relief Act, may be open to question in view of the decision of this Court in Joy Narain Sen v. Srikantha Roy, 1922 Cal 8, but that question need not be considered now. On 15th June 1931 the records were received by the trial Court and on 15th July 1931 the application for amendment of the plaint was allowed, and the plaintiff was directed to give the proper value of the disputed property within a week and to put in the deficit court-fee. On 22nd July 1931 the plaintiff took no steps in those directions, but no order could be passed on that date as the presiding officer was absent and the case was adjourned to 25th July 1931. On the adjourned date the plaintiff put in an application for withdrawing the suit with liberty to bring a fresh suit on the same cause of action, but that application being refused on 3rd August 1931, the plaintiff taking no further steps, the suit was dismissed for default with costs to the defendants including costs of the appellate Court.
4. There can be no doubt that the default of the plaintiff consisted in not giving the correct valuation and paying the deficit court-fee that would be due on the valuation being corrected. There could be at this stage no other default, because till these were done the suit could not be further proceeded with. The proper order in the circumstances would not be a dismissal of the suit, but the rejection of the plaint under Order 7, Rule 11 of the Code; and I must hold that the effect of the order dated 3rd August 1931 should be the same if the Court had passed the order in correct form, namely an order rejecting a plaint. There can be no doubt that a plaint can be rejected at any stage of the suit even after its registration: Kishun Singh v. Sabdal Singh (1890) 12 All 553, Brahmomayi Debi v. Andi Si (1900) 27 Cal 376 and Radha Kanta v. Debendra Narayan, 1922 Cal 506; and the fact that the suit was registered, heard by the trial Court, and by the appellate Court and remanded, would be of no moment, for a plaint not correctly valued or stamped can be rejected under Order 7, Rule 11 of the Code at any stage of the suit, the said provisions being mandatory.
5. The present suit was filed on 22nd June 1931. The plaint is a replica of the plaint of Title Suit No.644 of 1928/558 of 1929 except that in para 12, it is stated that the partition suit terminated in a decree and the twelve and half cottas of land described in the plaint was allotted to the plaintiff. Objections were taken to the maintainability of the suit on the ground that it was barred under Order 9, Rule 9, Order 23 Rule 1(3), Order 2, Rule 2 and on the ground of res judicata. In the view that I have taken of the effect of the order dated 3rd August 1931 passed in Title Suit No 644 of 1928 /558 of 1929 I do not see how Order 9, Rule 9, Order 2 or Order 23, Rule 1(3) of the Code can have any possible application. Order 7, Rule 13 in express terms gives the plaintiff in such a case a right to sue again on the same cause of action. There is no scope for the application of the doctrine of res judicata also even with regard to the findings arrived at by the appellate Court in Title Appeal No. 393 of 1929. If any authority is needed the judgment of Chandavarkar, J. in Irawa v. Satyappa (1911) 35 Bom 38, furnishes one, but I am of opinion that Order 7, Rule 13 of the Code furnishes a complete answer.
6. I accordingly hold that the present suit is maintainable. The result is that the judgments and decrees passed by the lower Courts are set aside and the case remanded to the Court of first instance to be decided on the other issues in the case save and except issues 2 and 4, on which issues my decision is to be regarded as final and in favour of the plaintiff. The appellant will have all costs of the Courts below incurred up to date, save and except the costs of Court-fees paid on the plaint. Further costs and costs of this Court to abide the result. Application for leave to appeal under the Letters Patent asked for is refused.