1. In this case the learned District Judge of Faridpur has dismissed an appeal for non-prosecution on the ground that the appellant failed to pay the additional court-fee on his memorandum of appeal which has been demanded of him. The appeal arose out of a suit by a Mahomedan wife against her husband in which she asked for a divorce. At the hearing the defendant, though previously served with summons, failed to appear. One witness was thereupon examined on behalf of the plaintiff, and on this evidence, the learned Munsif holding the claim proved made an ex parte decree on 25th November 1937 declaring the marriage dissolved. There was an application under Order 9, Rule 13, Civil P.C, for setting aside the decree, which ultimately failed. The defendant had also taken an appeal to the District Judge, and it is against the dismissal of this appeal on the ground stated that the present appeal is directed.
2. It appears that the plaintiff had paid a sum of Rs. 15 as court-fee on her Plaint, evidently treating the suit as one for a declaration pure and simple. The defendant paid a similar court-fee on his memorandum of appeal in the lower appellate Court. Having regard to the averments in the Plaint, the learned District Judge, however, took the view that the suit came within the category of a suit for a declaration where consequential relief was prayed: in other words, that it came under Section 7, para, (iv), Clause (c), Court-fees Act, so that an ad valorem court-fee was payable both on the Plaint and on the memorandum of appeal. He calculated the amount due on the sum of Rs. 1100 at which the plaintiff had valued her suit for the purposes of jurisdiction. On 16th December 1938 the learned Judge accordingly made order on either party to pay the deficit court-fee on this basis. The plaintiff-respondent duly paid the amount, but the defendant-appellant failed to do so within the time allowed, and thereupon, on 24th January 1939 the Court made the order dismissing the appeal with costs for non-prosecution. A decree was afterwards drawn up in these terms, and the present appeal has been preferred against this decision as an appeal from appellate decree. On behalf of the respondent, Mr. Chakravarty has raised a preliminary objection to the competency of the appeal. His contention is that the dismissal of the appeal by the learned District Judge amounted to a rejection of the memorandum of appeal, and as such, did not come within the definition of a decree under Section 2, Sub-section (2), Civil P.C, and that in any case, the dismissal was one for default, and this expressly excluded from the definition under Clause (b) of the said Sub-section.
3. In support of his argument, Mr. Chakravarty relies on two cases, Jnanadasundari Shaha v. Madhab Chandra : AIR1932Cal482 and Charusila Dasi v. Abhilas Bauri ('36) 23 A.I.R. 1936 Cal. 804. These cases lend some support to his view, but in my opinion, they do not carry him all the way, and it is also doubtful how far they may be regarded as decisions on the particular point in controversy. In the first of these cases, the Court below had made an order rejecting a memorandum of appeal for non-payment of deficit court-fee. Thereafter on the appellant's application, the time for payment was extended and on the court-fee being paid within the extended time, the Court ordered the appeal to be registered. The respondent appeared and objected that the last order was without jurisdiction, but the objection was overruled. Against this decision the respondent moved this Court, and. it was argued on his behalf that by virtue of Order 7, Rule 11, read with Section 107, Sub-section (2), Civil P.C., the order rejecting the memorandum of appeal was a decree, and that as it had not been set aside by appeal or review, it had become final. The learned Judges negatived this contention, and it is on the observations which Suhrawardy J. made in this connexion that Mr. Chakravarty relies:
Section 107(2) invests an appellate Court with the same powers as are conferred on a Court of original jurisdiction. It does not purport to give the order passed by an appellate Court the same effect as an order passed by an original Court of a like nature. Section 2 expressly says that 'decree' shall be deemed to include the rejection of a Plaint. If it was the intention of the Legislature to include within the definition of 'decree' an order rejecting a memorandum of appeal, it would have expressly said so.
4. It will be seen, however, that the actual decision in the case proceeded on a different ground. In the second case, these observations were quoted with approval, but that was an appeal against the decision of a Special Judge under Section 109A(now Section 115C), Ben. Ten. Act, and on the question of the competency of the appeal, it was sufficient to hold as in fact it was held that under this section an appeal would lie out of a proceeding under Section 105 only when there had been an investigation and determination of a question under Section 105A. Nasim Ali J. who delivered the judgment of the Court, did no doubt also express the view that the order of the Special Judge, dismissing the appeal before him on the ground of the appellant's failure to pay the additional court-fee which had been demanded from him, was in substance an order of rejection of the memorandum of appeal, and as such, not a decree and hence not appealable.
5. I am still however far from satisfied that, even giving full effect to these decisions, they may be regarded as completely answering the question as to the appealability of such an order as was made in the present case. In my opinion, all that was really held was that though, by virtue of Section 107(2) of the Code, the Court might reject a memorandum of appeal on a ground analogous to that on which a palint could be rejected under Order 7, Rule 11, the rejection of a memorandum of appeal could nevertheless not be held to come within the words 'rejection of a Plaint' occurring in Section 2, sub-s(2). But as I apprehend the matter, to say that is not to say that such an order of rejection might not come within the definition of a decree at all. It will doubtless be excluded from the definition, if, as is Mr. Chakravarty's further contention, the order can be said to be an 'order of dismissal for default' within the meaning of Clause (b) of the said Sub-section: otherwise, looking to the substance of the order, I do not see why it cannot be held to be a decree as being an adjudication which conclusively determines the rights of the parties with regard to a matter in controversy between them.
6. I do not think that where a suit or an appeal is dismissed for non-payment of court-fee, the dismissal can be treated as an 'order of dismissal for default' under Clause (b), and it is worthy of note that such a view had not been put forward in any of the cases cited by Mr. Chakravarty. For one thing, it is to be observed that Clause (b) does not speak generally of a dismissal for default, but uses the words 'any order of dismissal for default', suggesting to my mind that it is not meant to apply to any and every dismissal for default, hut only where the statute expressly provides for the making of an 'order' in that behalf, as in Order 9, Civil P.C. Neither under the Code nor under the Court-fees Act is there any provision of such an 'order of dismissal' for default in payment of court-fee. Secondly, it will be seen that the Code does not in terms contemplate a dismissal at all in such a case, but provides, expressly in the case of a suit (under Order 7, R.. 11), and impliedly in the case of an appeal (under the said rule read with Sub-section (2) of Section 107), for rejection of the Plaint or of the memorandum of appeal, as the case may be. Whether such rejection may be a decree in one case, but not in the other it seems to me all the same that if instead of taking the form of rejection of the Plaint or the; memorandum of appeal, the order passed is one of dismissal of the suit or the appeal, it cannot be regarded as an 'order of dismissal for default' within the meaning of Section 2, Sub-section (2), Clause (b). The order may well be under the provisions of the Court-Jess Act (Section 8B, Sub-section (3) or Section 12, para, (ii), Clause (a) of the Act as amended in Bengal). These provisions distinctly contemplate a decision by the Court as to the sufficiency of the court-fee paid, and enjoin dismissal for non-compliance with the order which the Court may make as the result of suoh decision for payment of additional court-fee. It may be as the Judicial Committee observed in Rachappa Subrao v. Shidappa Venkatrao ('18) 5 A.I.R. 1918 P.C. 188 at p. 32, that the Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State, but that does not mean that a question of court-fee may not be interpartes, so as to constitute a decision thereon an adjudication which conclusively determines the rights of the parties on a matter in controversy in the suit or appeal. I see no reason, therefore, why such a decision involving the dismissal of a suit or an appeal under the Court-fees Act should not be held to be appealable as a decree. In my opinion, it should be wholly immaterial that the appeal is directed, not against the adjudication itself, but against the consequent order of dismissal.
7. In the present case, it will be observed that rightly or wrongly, the dismissal of the appeal followed upon an adjudication not as to the insufficiency of the court-fee paid, but on a question of the Classification of the suit for the purposes of Section 7, Court-fees Act, which, as now clearly stated in the explanation added to Section 12 by the Bengal amendments, is quite distinct from a question relating to valuation only. Such an adjudication should all the more, therefore, attract the definition of a decree. Upon a careful consideration of the matter, I must consequently overrule the preliminary objection, and hold the appeal to be competent. Incidentally, I may point out that though in the memorandum of appeal in this Court the only order referred to is that of 24th January 1939 whereby the learned District Judge dismissed the appeal before him for non-prosecution, the previous order of 16th December 1938 which contained the decision on the question of court-fee, is included in the order sheet a certified copy of which was filed with the memorandum of appeal. To avoid any technical objection, the present appeal may well be regarded as one against the earlier order as well as that passed on 24th January 1939.
8. Turning to the merits of the appeal, I think the learned Judge was wrong in treating the suit as a suit for a declaratory decree and consequential relief, and demanding court-fee on that basis. He took the view that the plaintiff had not only asked for a declaration that her marriage had already been dissolved, but further asked for a dissolution of the marriage by the Court on the ground of cruelty. I have read the Plaint myself, and that is not how I should look at it. The plaintiff made the case that she had been married to the defendant on 16th January 1922 and she definitely asserted that an agreement had been entered into at the time by which it was provided that she would have liberty to divorce herself from her husband, if the latter contracted another marriage. It was alleged that the husband did marry another woman 10 or 11 years before suit, that is, about the year 1926 or 1927. In Falgoon, 1341 B.S. (corresponding to February-March 1985) the defendant is said to have turned out the plaintiff from his house. The plaintiff thereafter claiming to act in exercise of her authority under the ante nuptial agreement, purported to repudiate herself, and her case was that the marriage consequently stood dissolved under the doctrine of tafweez, which, as is well known, is an essential part of the Mahomedan Law of Divorce. The plaintiff accordingly prayed for a declaration that there had been such a talak by her of her husband by tafweez. The learned Judge seemed to think that there was an alternative prayer for dissolution of marriage on the ground of cruelty. There were certainly allegations of cruelty in the Plaint, but as I read it, these allegations were made with a view to justify the plaintiff's action in exercising her power of tafweez. The prayer clause was expressly limited to asking for a declaratory decree only. In my opinion, therefore, the suit was governed by Article 17, Clause (iii) of Schedule 2, Court-fees Act, and only a fixed fee was payable. Assuming that the suit was also for a dissolution of marriage in the alternative, I think such a relief would come under Clause (vi) of Article 17, and not under Section 7, para, (iv), Clause (c) and an additional fee on this basis would be payable under Section 17, Court-fees Act, in respect of this relief. The result is that in my opinion the order of the learned Judge calling for additional court-fees under Section 7, para, (iv), Clause (c) must be set aside, and he should be directed to restore and re-bear the appeal.
9. At such re-hearing, the learned Judge will consider whether the evidence given on behalf of the plaintiff really establishes the ease with which she came to Court. The plaintiff herself was not examined, but the only witness who came into the box on her behalf was her father, who did not however say a word about the alleged agreement for talak by tafweez, but merely spoke about some alleged acts of cruelty. Even if the plaintiff is supposed to have made a case of cruelty in her Plaint, it will be for the Court to consider how far the evidence is sufficient to prove such cruelty as would justify a dissolution of a Mahomedan marriage, and in this connexion, it may have also to consider whether Act 8 of 1939 can apply to the case, seeing that the suit was instituted before the Act came into force. The appeal is accordingly allowed with costs, and the case remitted to the lower appellate Court to be dealt with as directed above. I assess the hearing fee at two gold mohurs.
10. In view of the judgment just delivered, Mr. Chakravarti on behalf of the plaintiff-respondent asks for an order for refund of the additional court-fees which his client had to pay under the order of the learned District Judge. There is no express provision in the Court-fees Act which entitles a party to a refund, as a matter of course, in a case which does not come either under Section 14 or Section 15. But apart from these provisions, the Court has in proper cases made such an order for refund where it has found that the court-fee had been paid under an order subsequently held to be wrong. I accordingly, allow the plaintiff's prayer and direct that the plaintiff be granted a certificate authorizing her to receive back from the Collector the additional court-fees which was realized from her in the lower appellate Court under the order of the learned District Judge of 16th December 1938.