1. This appeal arises out of a suit for declaration that the decree for rent passed ex parte was fraudulent and for setting aside the said decree and the sale held thereunder on the ground of fraud. There was originally also a prayer for recovery of possession. That, however, was subsequently struck out.
2. The Court of first instance decreed the suit. On appeal, the learned Subordinate Judge has remanded the ease for decision on the question of fraud.
3. The defendants have appealed to this Court.
4. The first contention raised on behalf of the appellants is that the suit is not one for a declaratory decree within the meaning of Section 42 of the Specific Relief Act. That is so, but consequential relief was claimed, as the plaintiffs prayed for an injunction.
5. That being so, the only question would be whether ad valorem Court-fee was paid or not.
6. If the suit be held to have been valued at Rs. 57 annas 5, then ad valorem Court fee was paid.
7. The second contention is that the suit ought to have been valued at Rs. 4,000 and that in that case the Munsif had no jurisdiction to decide the case. But the plaintiffs valued the relief claimed at Rs. 57 annas 5 only; they did not value their suit at Rs. 4,000. It is true that in one portion of the plaint the plaintiffs stated that the price of the property sold was Rs. 4,000. That statement was made in connection with the case set up by the plaintiffs that the property was sold at a low prise and probably was exaggerated. However that may be, so far as the value of the suit was concerned, it was laid at Rs. 57 annas 5, that being the amount recoverable under the decree, and after the prayer for recovery of possession had been struck out, the claim was only for a declaration that the decree and sale were fraudulent and for an injunction. In such a case, the party can put his own value on the plaint: see Hari Sanker Dutt v. Kali Kumar Patra 32 C. 734 : 9 C.W.N. 690.
8. The case of Raj Krishna Dey v. Bepin Behary Dey 17 Ind. Cas. 162 : 40 C. 245 : 16 C.L.J. 194 : 17 C.W.N. 591 is distinguishable, as the plaintiff valued the relief claimed at Rs. 11,000. He was, therefore, bound to pay Court fee on that sum.
9. As already stated, however, in the present case there was a prayer for recovery of possession in the plaint as originally framed. There was an allegation in the plaint that the plaintiffs had been kept out of possession by the defendants. Subsequently it appears that an application was put in, in which it was stated that those statements had been made by mistake, and the prayer for recovery of possession was struck out. If, however, the plaintiffs were out of posses sion, we do not see how they can proceed with the suit without a claim for recovery of possession.
10. This question has not been gone into by either of the Courts below. As, however, the case has been remanded by the Court of Appeal below to the Court of first instance for re-trial on the question of fraud, we direct that Court to find out whether the plaintiffs were out of possession. If that is found against the plaintiffs, it will be for that Court to consider whether any, and if so what, amendment should be allowed.
11. Costs to abide the result.