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Midnapur Zemindary Company Vs. Secretary of State for India - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.96
AppellantMidnapur Zemindary Company
RespondentSecretary of State for India
Excerpt:
court fees act (vii of 1870), schedule ii, article 17, clause (iii), section 7, sub-section 4, clause (c) - bengal tenancy act (viii b.c. of 1885), section 111a, suit under--consequential relief--civil procedure code (act v of 1908), order vii, rule 11--rejection of plaint--court-fee, deficient. - .....at least there was nothing said to sbow that the relief was not properly valued. but the learned judge rightly came to the conclusion that the plaint was written upon paper insufficiently stamped and the plaintiff on being required by the court to supply the requisite stamp paper within the time fixed by the court failed to do so. therefore, be had no other alternative but to reject the plaint in accordance with the terms of the rule. in my judgment, the learned judge was right in his decision, he had no alternative but to reject the plaint.4. the learned counsel, who appeared on behalf of the plaintiff, asked this court to give the plaintiff leave to amend his plaint by striking out paragraph (b) of clause 11 in his plaint. in my judgment, he ought not to be allowed to do so for the.....
Judgment:

Sanderson, C.J.

1. I think this appeal must be dismissed.

2. The point arises upon the plaint which was filed in this case. The learned Judge has held that the plaint was not one that merely asked for a declaratory decree, but was one in which a consequential relief was claimed. The stamp which was upon the plaint was one of Rs. 10, the stamp which is applicable to a plaint in a suit to obtain a declaratory decree, under Article 17, Clause (iii), of the Second Schedule to the Court Pees Act of 1870. The learned Judge held that it was a plaint in which a consequential relief was asked, and consequently it came within Section 7, Sub-section 4, Clause (c) of that Act.

3. In my judgment there is no doubt that the learned Judge was right. The suit was instituted under Section 111A of the Bengal Tenancy Act; and in considering the nature of the suit regard must be had to the actual words of the section. It provides that 'No suit shall be brought in any Civil Court in respect of any order directing the preparation of a Record of Rights under this chapter . . . ', with certain saving clauses, Provided that any person who is dissatisfied with any entry in, or omission from, a Record of Rights framed in pursuance of an order made under Section 101, Sub-section (2), Clause (d), which concerns a right of which he is in possession, may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1877.' In my judgment these words must be strictly applied. What is it he is entitled to ask for in a suit brought under that section? He is entitled to ask for a declaration of the right of which he claims he is in possession. In this case the plaintiff claims that he is in possession of an occupancy right. Therefore, he is quite entitled to ask for such a declaration as is comprised in Clause (a) of paragraph 11 of his plaint. But he goes on in paragraph (6) to ask for a declaration that 'the entry in the records as to his status as tenure-holder is a nullity.' In my judgment that is not such a declaration as is contemplated by the proviso to Section 111A, I think the words are so plain that the point which has been taken on behalf of the plaintiff is not really arguable. Therefore, I think the order of the learned Judge was right. Having come to the conclusion, as he did, that the plaintiff was asking for something more than a mere declaratory decree, and was asking for a consequential relief, what was the learned Judge to do That is pointed out clearly by Order VII, Rule 11, which says this:-- 'The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action', that is not the ease here : (b) 'where the relief claimed is under-Valued, 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', again that is not this case: '(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so.' In this case the relief was properly valued at Rs. 5,225, at least there was nothing said to sbow that the relief was not properly valued. But the learned Judge rightly came to the conclusion that the plaint was written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within the time fixed by the Court failed to do so. Therefore, be had no other alternative but to reject the plaint in accordance with the terms of the rule. In my judgment, the learned Judge was right in his decision, he had no alternative but to reject the plaint.

4. The learned Counsel, who appeared on behalf of the plaintiff, asked this Court to give the plaintiff leave to amend his plaint by striking out paragraph (b) of Clause 11 in his plaint. In my judgment, he ought not to be allowed to do so for the reasons I have already given, and, this Court has no more power than the learned Judge when it is shown that the case comes within Order VII, Rule 11. This Court has no jurisdiction, the provision is mandatory, and this Court, just the same as the Court below, is bound by that section which provides, that under the above-mentioned circumstances the suit shall be rejected.

5. The appeal is dismissed with costs.

Mookerjee, J.

6. I agree.


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