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Srimati Gol Asmater Khatun and ors. Vs. Nawab Khajeh Habibulla and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.49
AppellantSrimati Gol Asmater Khatun and ors.
RespondentNawab Khajeh Habibulla and ors.
Cases ReferredJoy Gobind Laha v. Monmotha Nath Banerji
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 63 title suit - court-fee--appeal--abatement. - .....the property which is estimated at rs. 4,000, and this is the point upon which the plaintiff has preferred an appeal. in my opinion the courts below have taken a wrong view of the matter. this is a case which comes within the principles laid down in the case of phul kumari v ghanshyam misra 35 c. 202 : 7 c.l.j. 36 : 12 c.w.n. 169 : 10 bom. l.r. 1 : 5 a.l.j. 10 : 17 m.l.j. 618 : 2 m.l.t. 506 : 14 bur. l.r. 41 : 35 i.a. 22 (p.c.). i think, therefore, the court-fee payable was a court-fee of rs. 10.2. a preliminary objection, however, has been taken before us that the appeal must fail because an order of abatement has been made so far as it relates to one of the respondents, that is, respondent no. 18. the order referred to is one made by a bench of this court on the 19th december last to.....
Judgment:

1. This appeal was preferred by the plaintiffs and it arises out of a suit of the nature indicated in Order XXI, Rule 63, Civil Procedure Code, Both the Courts below have held that the plaintiff must pay an ad valorem. Court-fee on the value of the property which is estimated at Rs. 4,000, and this is the point upon which the plaintiff has preferred an appeal. In my opinion the Courts below have taken a wrong view of the matter. This is a case which comes within the principles laid down in the case of Phul Kumari v Ghanshyam Misra 35 C. 202 : 7 C.L.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 5 A.L.J. 10 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 35 I.A. 22 (P.C.). I think, therefore, the Court-fee payable was a Court-fee of Rs. 10.

2. A preliminary objection, however, has been taken before us that the appeal must fail because an order of abatement has been made so far as it relates to one of the respondents, that is, respondent No. 18. The order referred to is one made by a Bench of this Court on the 19th December last to the effect that the appeal had abated as against respondent No. 18.

3. It is contended by the learned Vakil for the respondents that the effect of that order is that the appeal abates against all the respondents, and he has referred us to the case of Dharanjit Sarayan Singh v. Chandeshwar Proiad Narayan Singh 11 C.W.N. 504 : 5 C.L.J. 393. There is nO reason to doubt the correctness of that decision, although the learned Vakil for the appellants Urged that it had never been followed. The only question is whether in the present case the appellants' right survives against the remaining respondents. The decision in the case of Joy Gobind Laha v. Monmotha Nath Banerji 33 C. 580, referred to in the first mentioned decision, throws light on the question. The present case is one in which the interests of the several respondents cannot be discriminated. If in the plaint the respondent No. 18 had been omitted, the defendants could have taken the plea that the suit was bad for non-joinder, and the plaintiff would have had to take steps to repair the omission, and I do not think she can be in any better case on appeal now that that respondent has died and an order of abatement has been passed so far as the appeal is directed against her.

4. It is suggested in the last resort that as the deceased respondent was represented by the Court of Wards through its manager, there was no need for the heirs to be substituted. That is a point which should have been taken when the order of abatement was passed, and in my opinion we cannot entertain it now.

5. The appeal fails on the preliminary objection taken for the respondents and it must be dismissed with costs.


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