1. This is a Rule calling on the opposite party to show cause why the order of the District Judge of Bhagalpur, dated the 2nd May 1910, holding that the Court-fee stamp of Rs. 10 was not sufficient and directing the plaintiff to value the suit and pay Court-fees upon valuation within 14 days, should not be set aside, on the ground that the order is erroneous in law on the authorities under the Code of Civil Procedure.
2. On the hearing one objection raised against the Rule was that the Rule ought to have been also on the Senior Government pleader on behalf of Government as the revenue was affected. We acceded to this and have now heard the learned Senior Government Pleader at some length in support of the contention of the learned Vakil who showed cause against the Rule.
3. The first objection that was taken to the Rule was that it was incompetent inasmuch as the learned Judge did not pass any final order deciding valuation, and if he eventually rejected the plaint there would be a right of appeal. This is really stating that it is in the nature of an interlocutory order. But this Court has in more than one case recently interfered in interlocutory orders where such orders appear to be a denial of jurisdiction, and in this case to inform a member of the public, who is presumed to bring a declaratory suit in the interest of the public, that he cannot bring such a suit without valuing his plaint at the value of the property involved, does really, in our opinion, amount to shutting him out of the right of suit, and it would be useless to defer this matter until the plaintiff had by neglecting to take any further steps in the matter incurred the rejection of his plaint. Further if he did not think it worth while to take any farther steps in the matter, he would obviously not appeal when his plaint was rejected. We think that this is a proper case and a very proper case for our interference.
4. The second ground urged by the learned Vakil in showing cause against the Rule was that the plaint was amended by omitting certain claims made by the plaintiff to place himself in possession of the trust property, and it was urged that this amendment could not be made without the consent of the Advocate-General, and the case in Budree Das Mukin v. Chooni Lal Johwory 33 C. 789 : 10 C.W.N. 581 was cited, and the argument went so far as to hold that when the Advocate-General has once given his sanction it was not competent even with the sanction of the Advocate-General to amend the plaint. This, we think, ignores the simple consideration that the Advocate General is not concerned with anything which does not strictly fall within the scope of Section 92. If the Advocate-General has sanctioned the suit under Section 92 and something outside the scope of that section has been inserted in the plaint and that has been covered by the general sanction, it cannot be said that the striking put of that relief, which did not fall strictly within the scope of Section 92, cannot be made without the sanction of the Advocate-General. If the amendment falls within the scope of Section 92 the ruling would apply. But if the original prayer struck out does not fall within the scope of Section 92, then there can be no reason, in our opinion, why the amendment should not be made.
5. The third objection is on the main point that the proper Court-fee is an ad valorem one. Now all the authorities that we have been able to discover are against the contention of the respondent. In the case of Thakuri v. Brahma Narain 19 A. 60 it was held that even the prayer that the plaintiffs themselves be appointed trustees is not a prayer for possession requiring a stamp on the value of the trust property, but it is a prayer for relief falling under Article 17 Clause 6, Schedule II of Act VII of 1870, that is to say, a relief which it is not possible to estimate at a money value, and which is not otherwise provided for by the Act. In following this ruling in the case of Girdhari Lal v. Ram Lal 21 A. 200, the same learned Judges held that the mere fact that the plaintiffs in the suit under Section 539, Civil Procedure Code, may ask for an account to be taken from the trustees and that the trustees may be compelled to refund monies alleged to have been misappropriated by them, does not take the case out of the purview of Article 17, Clause VI, Schedule II to the Court Fees Act, 1870, and render the plaintiff liable to pay an ad valorem Court-fee on that part of [their plaint. A similar view was taken in a later case, Ghazaffar Husain Khan v. Yawar Husain 28 A. 112 : 2 A.L.J. 591 : (1905) A.W.N. 208, and in that case following the decision of this Court in Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav 24 C. 418, it was held that a suit for dismissal of trustees and for recovery of the trust, property from the hands of a third party fell within the scope of Section 539. The Judges in this Court relied upon the words in Section 539 'such further or other relief as the nature of the case may require.' It is held by the learned Judges of the Allahabad Court that, 'all the plaintiffs in such a suit can obtain is a decree appointing a trustee or trustees, declaring what properties are affected by the trust and directing the trustee to bring those properties into possession. If the trustee appointed by the Court is resisted in his attempts to get possession of the trust property he must then bring a suit for possession in the proper Court on payment of the full Court-fee for such a suit.' The whole tenor of this ruling, therefore, is that a suit under Section 539 generally involves a question upon which no pecuniary value can be placed, and it is obvious that this is so, if we look at the effect of such a suit. The juridical person who is in possession of the only property which can have any value is the idol, and if the shebait, who is alleged, to have neglected his duty and to have embezzled the idol's property, is sought to be removed and another manager put in his place, it cannot be said that this is a suit involving the value of any portion of the idol's property. It may be a very good thing for the idol if he succeeds; It cannot, therefore, be said that the plaintiff is bound to value his relief at any fixed sum.
6. But it has been contended by the learned Senior Government Pleader that so far as this is a suit for accounts, it falls under Section 7 Sub-Section 4 Article (f) of the Court Pees Act, and consequently under the provisions of Section 11, that is to say, that although the plaintiff may now be able to value the amount to the account which the Court may eventually take, he will be liable when that account has been made to pay on the amount so found due; but if it is found that the present trustee has embezzled any money of the idol the money will be due to the idol, and there would be no relief sought by the plaintiff on this account. Such a suit for account is not a suit contemplated in Clause (f) Section 7(4).
7. We are of opinion, following the Allahabad ruling that the case clearly falls under Article 17 Clause 6 of Schedule II of the Court Fees Act and that the proper Court fee is Rs. 10. For these reasons the Rule will be made absolute with costs to the applicants three gold mohurs to be paid by the opposite party.