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Sri Sri Mahabirji Of... v. Mt. Sabaswati Devi .
Case Summary — Opinion by Misra, J. (with concurring opinion of Dayal, J.)
Factual and Procedural Background
This suit was brought by the plaintiff for a declaration of title and recovery of possession over a portion of land containing a house and mill machinery. The plaintiff alleged that Kedarnath purchased the property on 24 December 1923, came into possession, and on 27 March 1944 made an endowment of the property in favour of the plaintiff Sri Mahabirji of Asthal Saifganj. Kedarnath acted as shebait during his lifetime and died in 1950, after which Sheo Bhagwan Marwari succeeded as shebait. The defendant, Mt. Saraswati Devi, executed a ladavi deed on 27 July 1951 stating she had no interest; nevertheless, shortly before the suit she allegedly took forcible possession of part of the land claiming joint ownership with her father Amarchand. The plaintiff contended the property belonged to Kedarnath, that Kedarnath had been in possession since 1923 and had acquired title by adverse possession, and therefore had the right to make the 1944 endowment.
The defendant denied these claims, asserting that the property belonged to her father Amarchand; that Kedarnath was merely a servant/manager; that she and her family migrated and later resided on the premises; and that Sheo Bhagwan Agarwala (the so-called shebait) dispossessed and assaulted her — that she successfully resisted criminal action, and that the endowment and the ladavinama were fictitious or forged. The defendant also challenged the suit valuation and the sufficiency of court-fee.
The trial court (Additional Subordinate Judge, Purnea) framed issues including whether the plaintiff had undervalued the suit and whether the court-fee paid was sufficient. The trial court decided the substantive issues in favour of the defendant and dismissed the suit. The trial court also found the plaint undervalued: the plaintiff's valuation was Rs. 5,105, but the court found the correct valuation to be Rs. 41,095 (Rs. 41,000 for property plus Rs. 95 for mesne profits and injunction) and directed payment of additional court-fee on that amount, giving the plaintiff one month from the date of decree to deposit the amount, failing which recovery steps would follow. The plaintiff appealed to this court against the judgment and decree of the trial court.
Procedural history in this court: an application to prosecute appeal in forma pauperis was rejected (12 July 1955), appellant was given time to pay requisite court-fee on the memorandum of appeal; the Stamp Reporter indicated the proper court-fee on the memorandum would be Rs. 4,156-14-0. Counsel for appellant later sought to confine the appeal to the court-fee order. The matter was referred to a Division Bench (4 March 1959); an application to add grounds on merits was refused (order dated 17 November 1959). When heard, appellant confined argument to the question of court-fee and the trial court's power to include payment in the decree.
Legal Issues Presented
- Whether the trial court had jurisdiction and/or competence to incorporate in the decree an order calling upon the plaintiff to pay additional/deficit court-fee (and to fix a time and indicate consequences such as recovery) after deciding the suit on merits.
- Whether the court should have treated the question of sufficiency of court-fee and valuation as a preliminary issue (e.g., under Order 7 Rule 11 CPC and section 6 of the Court-fees Act) instead of deciding it after the evidence on merits.
- Whether an appeal limited to a part of a decree (specifically the part directing payment of additional court-fee) is maintainable when the appellant does not challenge the merits of the trial court's decision.
Arguments of the Parties
Appellant's Arguments
- The trial court lacked jurisdiction to incorporate in its decree an order fixing additional court-fee, specifying a time for payment, and imposing dismissal/recovery consequences if the deficit fee was not paid. Counsel relied on Order 7 Rule 11 CPC and sections 6 and 10 of the Court-fees Act, arguing that the proper procedure was to treat the sufficiency of court-fee as a preliminary issue and, if insufficient, to call upon the plaintiff to deposit the proper amount or reject the plaint.
- Appellant also relied on case law (including Walaiti Ram v. Gopiram and Sis Ram v. Sohan Lal) to support the contention that it was improper for a court to dismiss a suit on merits and, in the same decree, require the plaintiff to make good a court-fee deficiency or face consequences.
Respondent's Arguments
- The defendant had itself petitioned that the sufficiency of court-fee and valuation be gone into as a preliminary issue; nevertheless, the trial court chose to try the question along with other issues after recording evidence. The plaintiff acquiesced to that course, so it was not open on appeal to contend lack of jurisdiction.
- The respondent also relied on case law (including Ismail Shah v. Saleh Muhammad Shah and Jatra Mohan Sen v. Secretary of State) to address the scope of competence of the trial court regarding post-decisional directions about court-fee, and on Chandarmani Koer v. Basdeo Narain Singh in relation to maintainability of appeals limited to valuation/court-fee points.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court in this Opinion |
|---|---|---|
| Walaiti Ram v. Gopiram, AIR 1935 Lah 75 | Held (as cited by appellant) that where a court recorded findings on all issues and while dismissing the suit on merits required the plaintiff to make good deficiency in court-fee, the procedure was improper; that part of the order requiring payment was set aside in that case. | The appellant relied on this case. The court observed that this case did not lend support to appellant's first contention that the trial court had no jurisdiction to enter into the merits without deciding court-fee as a preliminary issue; the opinion thus did not accept Walaiti Ram as dispositive of that particular jurisdictional point. |
| Sis Ram v. Sohan Lal, AIR 1938 Lah 311 | Relied upon by appellant in support of the contention that the court was not competent to incorporate an order for payment of additional court-fee after dismissing the suit on merits. | The court recorded that appellant placed reliance on this decision; the broader consensus of similar decisions (from Lahore and Calcutta) influenced the court's ultimate conclusion that the trial court was not justified in incorporating the payment order. |
| Ismail Shah v. Saleh Muhammad Shah, AIR 1925 Lah 326 (2) | Stands for the proposition (as stated in this opinion) that when a court dismisses a suit on the merits it is not competent to order that the plaintiff should pay the additional court-fee and that failure would result in rejection or enforcement measures; the court in that decision held such an order was not competent. | The court cited this decision (and an analogous Division Bench decision of the Calcutta High Court) as part of a consensus of authority which it felt should not be departed from, and used that consensus to hold that the trial court was not justified in incorporating the order for payment of additional court-fee in the decree. |
| Jatra Mohan Sen v. Secretary of State, AIR 1919 Cal 194 | Discussed alongside Ismail Shah as authority indicating a court that dismisses a suit on merits is not competent to make orders for realisation/collection of additional court-fee as part of the decree. | Quoted by the respondent and relied on by the Bench as part of the body of authority supporting the conclusion that the trial court exceeded its competence in issuing the payment direction in the decree. |
| Kedar Nath Goenka v. Chandra Mauleshwar Prasad Singh, AIR 1932 Pat 228 | Referred to as a decision of this court which approved the consensus of the Lahore and Calcutta High Courts on the point about jurisdiction and competence related to post-decisional court-fee directions. | The court noted that this court had earlier referred approvingly to the consensus in Lahore and Calcutta decisions, and relied on that precedent as confirming that it was not desirable to depart from the view that a decree should not contain an order compelling payment of additional court-fee after a decision on merits. |
| Chandarmani Koer v. Basdeo Narain Singh, 4 Pat LJ 57 : AIR 1919 Pat 270 | Cited by respondent for the proposition that an appeal solely on the question of valuation and court-fee may not be maintainable when the appellant chooses not to challenge the judgment on merits. | The respondent initially relied on this case in opposing maintainability; however, after fuller consideration the respondent conceded that because the court below had incorporated a court-fee direction in the decree after deciding the suit, an appeal challenging that part of the decree was not incompetent. The court accepted that the appellant was entitled to challenge that part of the decree. |
Court's Reasoning and Analysis
The court undertook a two-part analysis: (A) the question whether the trial court's procedure of trying the sufficiency of court-fee together with merits affected its jurisdiction; and (B) whether the trial court was competent to incorporate in the decree, after deciding the suit on merits, an order directing the plaintiff to pay additional court-fee and specifying consequences for non-payment.
(A) Jurisdiction to try valuation/court-fee with merits: Counsel for the appellant argued that under Order 7 Rule 11 CPC and section 6(1) of the Court-fees Act the question of sufficiency of court-fee should have been treated as preliminary and decided before trial; if insufficiency were found the plaint could be rejected or the plaintiff called upon to deposit the proper fee. The court observed that section 6(1) prohibits filing/receiving documents not properly stamped, and Order 7 Rule 11 permits rejection of an insufficiently stamped plaint. The court acknowledged that the trial judge could have rejected the plaint at an initial stage, but because the plaint was initially considered sufficiently stamped, section 6 did not arise at that stage. The court recognized that some cases are such that the insufficiency becomes apparent only after evidence and trial. The court concluded that where, without insistence by the plaintiff, the trial court chooses to try the court-fee/valuation question together with other issues after recording evidence, that procedure does not affect the jurisdiction of the court. Accordingly, the fact that the trial court did not treat the point strictly as a preliminary issue did not render its exercise of jurisdiction invalid.
(B) Competence to incorporate direction for payment of additional court-fee in the decree after deciding the suit on merits: The court examined prior decisions from the Lahore and Calcutta High Courts and noted a consensus, which this court had earlier approved in Kedar Nath Goenka v. Chandra Mauleshwar Prasad Singh, that a court which dismisses a suit on the merits is not competent to direct the plaintiff to make good a deficiency in court-fee and to make orders for realisation of that deficit as part of the decree. The court accepted that consensus of authority and concluded that it was not desirable to depart from that view. On that basis the court held that the trial court was not justified in incorporating in the decree the order requiring payment of the additional court-fee.
Maintainability: The court addressed the contention that an appeal confined to valuation/court-fee may be incompetent if the appellant does not challenge the merits. The court accepted (after respondent's concession) that where a decree contains an order directing payment of additional court-fee after decision on merits, a party is entitled to challenge that portion of the decree — in other words, an appeal against a part of a decree is maintainable in these circumstances.
Holding and Implications
Holding: The appeal is allowed and the order of the trial court directing the plaintiff to pay the deficit/additional court-fee (as incorporated in the decree) is set aside.
Implications:
- Direct effect on the parties: The specific part of the trial court's decree directing payment of additional court-fee is quashed; the appeal succeeds on that point. The parties were ordered to bear their own costs in this court.
- On procedure: The court clarified that trying the sufficiency of court-fee together with other issues after evidence does not by itself deprive the trial court of jurisdiction, but the court confirmed the settled view (as per the cited Lahore and Calcutta authorities and earlier Patna authority) that a court which dismisses a suit on merits is not competent to include in the decree an order directing payment of additional court-fee and providing for realisation of such deficit as part of the decree.
- Precedential effect: The court expressly followed the existing consensus of authority and indicated it was not desirable to depart from that view of law; the decision applies that established principle to set aside the trial court's payment direction. The opinion does not state that it establishes a new legal principle beyond applying previously recognized authorities.
Concurring opinion: Dayal, J. agreed with the result (para 23). Final order: Appeal allowed (para 24).
Misra, J.:— This appeal by the plaintiff arises out of a suit for declaration of title and recovery of possession over a portion of land containing a house and the machinery of a mill.
2. The relevant facts for the purpose of this appeal are that the plaintiff alleged that the property was purchased on the 24th December, 1923 by one Kedarnath who duly came into possession. On the 27th March, 1944. Kedarnath made an endowment of the property in favour of the plaintiff Sri Mahabirji of Asthal Saifganj. Kedarnath acted as shebait of the deity during his life time. He died, however, in 1950, when the present shebait, Sheo Bhagwan Marwari succeeded him in the office. On the 27th July, 1951, the defendant, Mt. Saraswati Devi, executed a ladavi deed stating that she kid no interest in the property. In spite of that document, however, she took forcible possession of a portion of the land only 2½ months prior to the institution of the suit alleging that this property was a joint property of Kedarnath and her father, Amarchand. In fact, however, the property belonged to Kedarnath with which Amarchand had no concern. The plaintiff also pleaded that in any view Kedarnath continued in possession of the property since 1923 and had acquired title to it by adverse possession, and, as such, he had a right to make an endowment in 1944 in favour of the plaintiff.
3. The defendant pleaded, however, that the property in suit belonged to her father Amarchand, and that she had been married in the district of Rangpur. Her father, however died in the year 1910 or 1941. Kedarnath was a mere servant of her father and was looking after the management of the property. He continued to be the manager of the property even after the death of her father Amarchand inasmuch as the defendant and her husband resided at Saidpur in the District of Rangpur, which was her husband's place, but after the creation of Pakistan in 1947, the defendant permanently migrated to Katihar with her entire family and had since been residing on the premises in suit. Sheo Bhagwan Agarwala the so-called shebait, however, unlawfully dispossessed her of the premises and assaulted her for which a criminal case was duly filed. The defendant, however, resisted him successfully. Accordingly, Sheo Bhagwan took recourse to the device of bringing the present suit setting up a fictitious endowment of the property in favour of Sri Mahabirji. The ladavinama alleged to have been executed by her also was a forged document inasmuch as Sheo Bhagwan Agarwala managed to obtain her thumb marks on blank papers and took her and her husband to the registration office on false pretext where he managed to get the document registered. The alleged possession and dispossession feet up on behalf of the plaintiff was also challenged as false and baseless. Among other pleas, the defendant also challenged the valuation of the suit and the court-fee paid thereon by the plaintiff.
4. The learned Additional Subordinate Judge, Purnea, who tried the suit, framed a number of issues one of which was: “Has the plaintiff under-valued the suit and is the court-fee paid sufficient?” It may be stated that he decided all the substantial issues in favour of the defendant and dismissed the suit. On the question of valuation also he found that the suit valued at Rs. 5,105/- was inadequate, and he found that in any view the value of the property would come to Rs. 41,000/- besides Rs. 95/- as the value put by the plaintiff for mesne profit and injunction, making a total of Rs. 41,095/-. He demanded accordingly court-fee to be paid on that amount. He allowed a period of one month from the date of the decree to the plaintiff to deposit the amount failing which steps would have to be taken for the recovery of the amount from him. The plaintiff has come up in appeal to this court against the judgment and decree of the learned Additional Subordinate Judge.
5. The appeal was filed originally with a petition for permission to prosecute it in forma pauperis. The application was, however, rejected by this court on the 12th July, 1955, and the appellant was given four months' time to pay the requisite court-fee on the memorandum of appeal according to the valuation put by him. The Stamp Reporter, however, pointed out on the 21st July, 1955, that a sum of Rs. 4,156-14-0 would be the proper amount of court-fee payable on the memorandum of appeal. On the 21st October, 1955, learned Counsel for the appellant sought permission to delete the grounds relating to the merits of the decision of the court below and preferred to confine it only to the order relating to court-fee.
6. The matter was listed for hearing before a single judge of this court, and the learned Judge was pleased to refer it to a Division Bench on the 4th March 1959. An application, however, was filed later on behalf of the appellant that he might be permitted to add grounds relating to the merits of the appeal itself. The application was put up duly and was disposed of on the 17th November 1959, by order No. 28. It is not necessary to set out here the grounds on which the application was rejected. After hearing the arguments on the point the Division Bench of this court came to the conclusion that the present case was not a fit one in which the prayer for additional grounds touching the merits of the case should be allowed.
7. When the appeal had been taken up for hearing, learned Counsel for the appellant faintly argued that the decision of the points relating to the merits would also be substantially affected by the decision of the question of court-fee. Since, however, it was open to him only to raise an argument with regard to the correctness of the order passed by the court below on the court-fee matter, he confined his argument to this aspect of the question. He has urged in the first place that the court below had no jurisdiction to incorporate in the decree an order relating to the amount of court-fee payable by the plaintiff fixing a time for the payment thereof and imposing the penalty of dismissal of the suit in case the deficit court-fee was not paid by the appellant.
8. He referred in this connection to Order 7 Rule 11 of the CPC as also to sections 6 and 10 of the Court-fees Act. His argument is that the question of proper amount of court-fee payable had to be dealt with by the learned Additional Subordinate Judge as a preliminary issue, and he should have come to a conclusion on that matter. If he felt that the plaint was not sufficiently stamped, it was open to him to assess the amount and call upon the plaintiff to deposit the same within the time allowed, and in the event of his failure to do so, the plaint should have been rejected.
9. This procedure was necessary because if the learned Additional Subordinate Judge found that the valuation of the suit should have been Rs. 41,095/-, and not as fixed by the plaintiff, and that ad valorem court-fee should have been paid on that amount, it would have been open to the plaintiff to scale down the relief he claimed and prosecute the suit on that basis. In any case, if the plaint had been rejected the plaintiff might resort to any other suitable proceedings to assert his right. In my opinion, however it is difficult to accede to this contention.
10. Learned Counsel for the respondent has urged, in reply that it was the defendant who had put in a petition that the sufficiency of the court-fee paid on the plaint together with the valuation of the suit should be gone into as the preliminary issue. The court, however, taking the view that all issues must be tried together chose to go into this question after recording evidence, and decided all the points together. The plaintiff acquiesced in the procedure adopted by the trial court, and it was, therefore, not open to the learned Counsel for the appellant in this court to urge that the trial court had no jurisdiction to go into other matters when pronouncing upon the amount of court-fee payable on the plaint.
11. Learned Counsel has placed reliance in support of his contention on the case of Walaiti Ram v. Gopiram, AIR 1935 Lah 75 where in an application in revision filed against an order in the circumstances identical with those of the present case, the learned Single Judge of the Lahore High Court held that where the court recorded findings on all the issues and while dismissing the suit on merits required the plaintiff to make good the deficiency in court-fee, the procedure was not proper, and accordingly that part of the order of the court below which called upon the plaintiff to pay the deficit court-lee was set aside.
12. It may be stated that neither this nor any other case to which reference has been made lends any support to the first contention of Mr. Chaudhary that the trial court had no jurisdiction to enter into the merits of the case without deciding the question of court-fee as a preliminary issue. Reference to section 6 of the Court-fees Act is not helpful to the appellants. Section 6(1) of the Court-fees Act no doubt lays down that no document of any of the kinds specified as chargeable under any of the schedules of the Court-fees Act shall be filed, exhibited or recorded in any Court of Justice, except in the Courts specified in the Act, nor shall be receivable by or furnished by any public officer, unless a fee of an amount not less than that indicated in the schedules to the Act be paid on the document concerned.
13. No doubt, therefore, it was open to the learned Additional Subordinate Judge not to entertain the document and it could have been rejected as required under Order 7 Rule 11 of the CPC, but since the document was considered as sufficiently stamped at the initial stage, the question of the applicability of section 6 did not arise. As I have mentioned above, it, is one of that class of cases where the court at first does not find anything wrong with the valuation put by the plaintiff in the suit but the question is raised by the defendant, and in course of trial after recording evidence the court comes to a finding that the plaint has not been properly stamped.
14. As I have mentioned above, this may be tried as a preliminary issue in which event also section 6 of the Court-fees Act read with Order 7 Rule 11 of the Code may come into play. But, as in the present case, without any insistence on the part of the plaintiff, if the court has chosen to try this Issue along with other issues, it cannot be reasonably contended that it affects the jurisdiction of the court in the matter.
15. Learned Counsel for the appellant has contended in the next place that in any view of order of the court below calling upon the plaintiff to pay the additional court-fee within a period of one month from the date of the decree was without jurisdiction, and the court was not competent to incorporate it in the decree after trial. Reliance has been placed in this connection in support of his argument on the aforesaid decision and also on the case of Sis Ram v. Sohan Lal, AIR 1938 Lah 311. Learned Counsel for the respondent has very fairly brought to our notice the cases of Ismail Shah v. Saleh Muhammad Shah, AIR 1925 Lah 326 (2) and Jatra Mohan Sen v. Secy, of State, AIR 1919 Cal 194 (1).
16. The learned Single Judge in the above case of Ismail Shah, AIR 1925 Lah 326 (2) laid down that where the court has dismissed a suit on the merits, it is not competent to order that the plaintiff should pay the additional court-fee, and that it he failed to do so the point would stand rejected. In the Division Bench decision of the Calcutta High Court, which is on the same line, their Lordships observed that when a court, after disposing of a suit, held that the suit had been undervalued and that on a proper valuation there was a deficiency in the amount of the court-fee paid by the plaintiff, and that the plaintiff was to make good the deficiency, and on his failure to do so made an order of its own motion for realisation of the deficit by attachment of his moveable property, the court had no jurisdiction to make the order in question.
17. Our attention has been drawn in this connection to sections 10 and 12 of the Court-fees Act. The learned Government pleader, who has appeared on behalf of the State, has urged on a consideration of sections 10 and 12 that the above order cannot be held to be beyond the competence of the court that passed the order when the issue of court fee and valuation was tried as one of the main issues on merits and then demanded payment of an additional court-fee.
18. In my opinion, however, in view of the consensus of opinion on this point in the Lahore High Court and the Calcutta High Court which was referred to approvingly by this court in Kedar Nath Goenka v. Chandra Mauleshwar Prasad Singh, AIR 1932 Pat 228, it appears to us that as at present advised, it is not desirable to depart from the view of law laid down in the aforesaid decisions. It must be held accordingly that the court below was not justified in incorporating in the decree the order for the payment of the additional court-fee.
19. There has been some argument before us with regard to the maintainability of the appeal. Learned Counsel for the respondent has urged that an appeal merely on the question of valuation and court-fee is not maintainable, when the appellant has chosen not to challenge the judgment I of the court below on merits as well. He has referred to the case of Chandarmani Koer v. Basdeo Narain Singh, 4 Pat LJ 57 : (AIR 1919 Pat 270) in support of his argument. After a fuller consideration, however, he has conceded that as the present appeal was directed against an order on the point of court-fee incorporating it in the decree itself after the decision of the suit on merits. It cannot be successfully urged that the present appeal would be incompetent.
20. In the circumstances of the present case the appeal would have the effect of challenging a part of the decree only. The appellant was entitled to do that. In view of the point being fairly conceded by the learned Counsel for the respondent, it must be held that the appeal on the question on a part of the decree on court-fee even if it was an illegal order must be held to be not incompetent.
21. In the result, the appeal is allowed, the order of the court below relating to a direction for payment of deficit court fee by the appellant must lie set aside.
22. In the circumstances of the case, however, parties will bear their own costs of this court.
23. Dayal, J.:— I agree.
ID/D.II.Z
24. Appeal allowed.
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