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Prokash Chandra Sarakar and ors. Vs. Raja Bisumbhar Nath Sahi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.18
AppellantProkash Chandra Sarakar and ors.
RespondentRaja Bisumbhar Nath Sahi
Cases ReferredH.C. Studd v. Matt Mahto
Excerpt:
court fees act (vii of 1870), section 12, scope of - valuation fixed by first court--non-payment of institution fee--dismissal of suit--right of plaintiff to appeals appeal, forum of. - 1. this is an appeal against an order of the judicial commissioner of chota nagpur, dated the 14th january, 1908, setting aside a decree of the subordinate judge of palamau, which directed the dismissal of the plaintiff's suit after the 'plaintiff had failed to put in certain additional fees for the institution of that suit. it appears that the plaintiff brought a suit valuing the relief claimed at rs. 2,100. an objection was taken to the valuation by, the defendants who alleged that the proper value was rs. 50,000. on the 27th july an issue was raised before the subordinate judge, namely, has the suit been under-valued arid is the court-fee paid insufficient.' the subordinate judge went into question and, in sliding the issue, came to the conclusion that the market value of the.....
Judgment:

1. This is an appeal against an order of the Judicial Commissioner of Chota Nagpur, dated the 14th January, 1908, setting aside a decree of the Subordinate Judge of Palamau, which directed the dismissal of the plaintiff's suit after the 'plaintiff had failed to put in certain additional fees for the institution of that suit. It appears that the plaintiff brought a suit valuing the relief claimed at Rs. 2,100. An objection was taken to the valuation by, the defendants who alleged that the proper value was Rs. 50,000. On the 27th July an issue was raised before the Subordinate Judge, namely, has the suit been under-valued arid is the Court-fee paid insufficient.' The Subordinate Judge went into question and, in Sliding the issue, came to the conclusion that the market value of the Subject-matter of the suit was least Rs. 24,000, and directed that institution fees on that Value should be paid in by the 29th July 1907. The order was not complied with and, oh the 29th July 1907, the suit was dismissed. There was an appeal to the Judicial Commissioner with the result that he set aside the decree of the Court of first instance. He found that the valuation of the suit arrived at by the first Court was excessive, fixed the valuation at Rs. 10,120, and directed that institution fees oh that value Should be accepted. The present Appeal has been preferred by the defendants' against this decision of the Judicial Commissioner arid the only ground which has really been taken in support of it is that, having regard to the provisions of Section 12 of the Court Fees Act, the order of the Judicial Commissioner was ultra vires. It has been contended that, under Section 12 Clause (1) of the Court Fees Act, the decision of the Court of first instance on the question of valuation was final as between the parties to the suit, that no appeal lay against that finding to the Judicial Commissioner and that the Judicial Commissioner had certainly no power, trader the law, to modify the order of the first Court by reducing the value of the suit from Rs. 24,000, to Rs. 10,120. It is contended that the only power that Section 12 gives him to interfere with the order is that contained in the second clause which enables him to enhance the institution fee should he find that the valuation of the property in the Court of first instance has been too low. For the respondents it has been urged that the. view taken by the learned Judicial Commissioner is correct, that after the Subordinate Judge had dismissed the suit, an appeal lay against his order of dismissal as against a decree, that in support of the appeal to the lower Court it was open to the respondent to go into the question whether the order dismissing the suit was correct and that, in doing so, it was open to him to contest the valuation of the suit as arrived at by the Subordinate Judge. In support of this view, the decisions of this Court in the cases of Omrao Mirza v. Mary Jones 12 C.L.R. 148 and H.C. Studd v. Mati Mahto 28 C. 334, have been relied on. We are of opinion that the contention advanced on behalf of the respondent is correct. In our opinion, Section 12 of the Court Fees Act was passed mainly for fiscal purposes and prevented the parties from contesting the decision of the first Court so far as that decision was arrived at for those purposes. But in the present case the result of the decision on the question of valuation is to deprive the plaintiff of the right which he sought to enforce in the suit, and the effect of the order is riot confined to fiscal purposes only but also affects the merits of the plaintiff's suit. In the case of Omrao Mirza v. Mary Jones 12 C.L.R. 148, it was distinctly pointed out by the learned Judge that Section 12 of the Act did not contemplate a case on which the Court refused to hear a suit on the ground that sufficient Court-fees have not been paid, and it was held that, in such a case, it would be open to the person affected by the order to dispute it in an appeal preferred against the decree dismissing the suit. That view was followed in the decision of this Court in the case of H.C. Studd v. Matt Mahto 28 C. 334, and we can find nothing in the other decisions of, this Court, to which we have been referred, to support the contention that, when a suit has been dismissed in consequence of the failure of the plaintiff to pay the institution fees on the valuation fixed by the Court of first instance, it is not open on appeal to the person affected by that order to question the correctness of that order with a view to succeed in the appeal by getting the decree set aside and the suit heard. We, therefore, hold that, in this case, the view taken by the learned Judicial Commissioner is correct and that it is supported by the rulings to which he has referred.

2. We may mention that there was a suggestion that the appeal lay to this Court instead of to the Judicial Commissioner on the ground that the Subordinate Judge had Valued the suit at Rs. 24,000. But the learned Judicial Commissioner distinctly mentioned in his judgment that this point was riot taken before him, and we think that, as the respondent disputed the correctness of the valuation and throughout alleged that the value of the suit was the value as stated in his plaint, the appeal rightly lay to the Court of the Judicial Commissioner.

3. The result, therefore, is that we confirm the judgment and order of the lower appellate Court and dismiss the appeal with costs; but in view of the manner in which the matter has been contested, we fix the hearing fee at ten gold mohurs.


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