1. We are invited in this Rule to set aside an order under Clause (a) of Rule 1 of Order XLIII of the Code of Civil Procedure of 190S on the ground that it was made without jurisdiction. The plaintiffs commenced this action in the Court of the Subordinate Judge of Deoghur for declaration of a right of easement in respect of their house and for a permanent injunction to restrain the defendant from interfering with Such right. The plaintiffs claimed to discharge water from their premises to a drain on the land of the defendant and also to have uninterrupted use of light and air across his premises. The claim was valued at Rs. 1,100. The defendant took exception to the jurisdiction of the Court on the ground that a fictitious value had been designedly attributed to the subject-matter of the litigation, so as to confer jurisdiction upon a Court which would otherwise be not competent to take cognizance of the matter. The Subordinate Judge thereupon appointed a commissioner to value the subject-matter of the suit. The commissioner fixed the value at Rg. 790. It is not necessary for our present purpose to consider whether this report is or is not open to criticism; but the comment is legitimate that, in a case of this description, it is by no means easy to show that the valuation put by the plaintiffs upon their claim is arbitrary. The Subordinate Judge, however, accepted the valuation made by the commissioner and directed the plaint to be returned for presentation to the proper Court under Rule 10 of Order VII of the Code of 1908. It is worthy of note that the Court to which the plaint was to be presented was the Court of that very officer in his capacity as Sub-Divisional Officer of Daoghur. The plaintiffs appealed to the District Judge under Clause (a) of Rule 1 of Order XLIIL As no exception was taken to the competency of the appeal, it was heard on the merits and the District Judge reversed the order of the primary Court. He held that there was no solid foundation for the valuation made by the commissioner and that, in fact, there was nothing to indicate that the suit had been improperly valued. In this view, he directed the restoration of the suit to the file of the Subordinate Judge. We are now invited to set aside this order on the ground that the appeal to the District Judge was barred under the provisions of Section 12 of the Court Fees Act, 1870, and that although no objection was taken to his jurisdiction to entertain the appeal, yet his order should be discharged as made without jurisdiction. In our opinion, Section 12 of the Court Fees Act has no application to this case and did not bar the appeal presented by the plaintiffs to the District Judge.
2. Section 12 of the Court Fees Act provides as follows: 'Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this Chapter on a plaint, shall be decided by the Court in which such plaint is filed, and such decision shall be final as between the parties to the suit.' The point thus arises, whether the question raised before the Subordinate Judge wan a question relating to valuation for the purpose of determining the amount of fee chargeable on the plaint. In our opinion, the answer must clearly be in the negative. The question before the Subordinate Judge related essentially to his jurisdiction to entertain the suit. No doubt, that jurisdiction depended upon the valuation of the suit, and to this extent the question of valuation was indirectly invoked in the determination of the question raised. But that question was not raised for the purpose of determining the amount of fee chargeable on the plaint. It has been repeatedly held by all the Indian High Courts that Section 12 ought to be strictly construed and that it cannot be applied to bar an appeal where the question raised is one of the class under which the suit falls and not merely of valuation in that class. In support of this view, reference may be made to the cases of Champaden Vittil Lakshmi v. Kunnummal 4 M.L.J. 183; Annamalai Chetti v. Cloete 4 M. 204; Kanaran v. Komappan 14 M. 169; Dada Bhau Kittur v. Nagesh Ramchandra 23 B. 486; Kashi Nath v. Govinda 15 B. 82; Sardar Singji v. Ganpat Singji 17 B. 56; Ajoodhya Pershad v. Gunga Pershad 6 C. 249 : 6 C.L.R. 148; Upadhya Thakur v. Persidh Singh 23 C. 723; Omrao Mirza v. Mary Jones 12 C.L.R. 148 and Studd v. Mati Mahto 28 C. 334. In the case before us, if the question is not of the class to which the suit belongs, neither is it one of valuation for the purpose of determining the amount of fee chargeable on the plaint. On the other hand, the question is, of the competency of the Court of first instance to entertain the suit. Section 12 of the Court Fees Act was evidently framed for fiscal purposes, as is manifest from the second Clause of the section, which shows how a Court of appeal may review the decision of the primary Court upon a question of this character, only when there has been a loss of the public revenue. It is fairly clear the Legislature never intended that the decision of a question of jurisdiction should be final under Section 12 of the Court Fees Act. Brojo Coomar Sen v. Eshan Chunder Das 3 C.L.R. 79. In the case before us, the mischief of the contrary view is very forcibly illustrated. If the suit is taken to have been properly valued at above Rs. 1,000, it will be tried by the Subordinate Judge in the first instance. An appeal will lie to the District Judge, and a second appeal to this Court. On the other hand, if the value of the suit be determined to be less than Rs. 1,000, the suit will be tried in the first instance by the Sub-Divisional Officer, from whose decision an appeal will lie to the Deputy Commissioner. Against the appellate order of the latter officer no appeal is allowed by law; but it is liable to revision by the Commissioner. It is, therefore, of the gravest importance to the parties concerned, whether the suit is to be tried by the Subordinate Judge or by this Sub-Divisional Officer; and we feel no doubt whatever that the decision of the Subordinate Judge upon this question is not final within the meaning of Section 12 of the Court Fees Act, 1870.
3. The result is that this Rule is discharged with costs. We assess the hearing fee at two gold mohurs.