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Ganesh Tavanappa Barde v. Tatya Bharmappa Mirji

Bombay High Court

Sep 2, 1926

Judgment

Subsequent
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Structured Summary of the Provided Opinion (Patkar, J. & Fawcett, J.)

Factual and Procedural Background

The plaintiff sued for possession of property with past and future mesne profits and costs in the Subordinate Judge's Court of Hukeri. The defendant contended that the market value of the property exceeded Rs. 5,000 and that the Hukeri Court therefore lacked pecuniary jurisdiction.

On April 14, 1924 the Subordinate Judge of Hukeri held that the market value exceeded Rs. 5,000, ruled that the Court had no jurisdiction, and directed that the plaint be returned for presentation to the proper Court. The plaintiff appealed to the District Judge.

The District Judge (in an order dated July 18, 1925) vacated the trial Judge's order and instead directed that the plaintiff, within a fortnight of the record reaching the trial Court, amend the plaint to show the market value as Rs. 5,397 and pay the deficient court fee; failing which the suit would stand dismissed. If the amendment and fee payment were made, the plaint was to be returned for presentation to the proper Court. Application No. 312 of 1925 was filed against that District Judge order.

The plaintiff paid the deficient court fee on August 7, 1925, but the Subordinate Judge of Hukeri dismissed the suit on August 8, 1925 on the ground that the plaintiff had not complied within the two-week time the District Judge had fixed. The plaintiff filed Application No. 311 of 1925 in this Court challenging that dismissal.

Legal Issues Presented

Whether, under section 10 of the Court Fees Act, 1870, a Court that lacks jurisdiction to try the suit can nevertheless dismiss the suit for non-payment of additional court fees.
Whether Order VII, Rule 10 of the Civil Procedure Code mandates return of the plaint to be presented to the proper Court where the Court finds it has no jurisdiction, rather than permitting that Court to require additional fees and dismiss the suit.
Whether Order VII, Rule 11 applies to cases of insufficient stamping or undervaluation when the Court has jurisdiction, and how Rule 11 and section 10 of the Court Fees Act interact.
Whether the District Judge erred in directing payment within a fortnight and that non-payment should lead to dismissal by a Court that lacked jurisdiction, and whether the Subordinate Judge's dismissal (dated August 8, 1925) was lawful.

Arguments of the Parties

Appellant (Plaintiff) — Mr. Desai

The only Court that can dismiss a suit under section 10 of the Court Fees Act is the Court having jurisdiction to try the suit.
Order VII, Rule 10 of the Civil Procedure Code imposes an imperative duty on a Court that finds it lacks jurisdiction to return the plaint for presentation to the proper Court.
Order VII, Rule 11 provides for rejection of a plaint written upon insufficiently stamped paper where the plaintiff fails to supply requisite stamp paper within time; Rule 11 operates where the Court has jurisdiction, while section 10 may apply at a subsequent stage.
If a plaint is returned to the proper Court, the plaintiff should get credit for any fee previously paid and should be able to pay any deficient fee in the Court that properly has jurisdiction.

The opinion does not contain a detailed account of the opponent's (defendant's) oral submissions beyond noting that there were contentions opposed to Mr. Desai's position and that some reported decisions (discussed below) contain remarks favoring the opponent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Prabhakarbhat v. Vishwambhar Pandit (Full Bench of the Bombay High Court)	The principle that a plaintiff should not lose a court fee already paid in a Court that cannot give the relief sought and should be allowed to present the plaint to the proper Court without paying a second fee.	Patkar, J. relied on this Full Bench view to support the proposition that the plaintiff should be allowed to get credit for fees already paid and to pay any deficiency in the proper Court; Fawcett, J. also referred to the Full Bench principle in construing the interplay of Rules 10/11 and section 10.
Visweswara Sarma v. Nair (Madras High Court)	Where a plaint received and stamp cancelled is returned under Order VII, Rule 10, the Court to which the plaint is re-presented is bound to give credit for the fee already levied by the former Court.	Patkar, J. cited this decision as authority supporting the practice that a plaintiff should receive credit for previously paid fees when the plaint is returned to the proper Court.
Kandasami Goundan v. Subbai Goundan (Madras High Court)	Contains some remarks that, if taken at face value, would favor the opponent's contention (i.e., support for the view that a Court without jurisdiction might require additional fees or treat non-payment differently).	Patkar, J. noted the decision but observed that the point does not seem to have been fully argued there; the decision therefore did not displace the view favoring return of the plaint and credit for prior fees.

Court's Reasoning and Analysis

Both judges considered the interaction between section 10 of the Court Fees Act, 1870, and Order VII, Rules 10 and 11 of the Civil Procedure Code.

Patkar, J.'s analysis:

Section 10 permits a Court to require payment of additional court fee and, if not paid within time fixed, to dismiss the suit, but the power to dismiss for non-payment should be exercised by a Court that has jurisdiction to try the suit.
Where the market value is found to exceed the pecuniary jurisdiction of the Court that has made such an inquiry, the Court must, under Order VII, Rule 10, return the plaint for presentation to the proper Court.
If the plaint is returned to the proper Court, the plaintiff should be permitted to obtain credit for previously paid fees and pay any deficient fee in the proper Court—this course aligns with prior High Court decisions (Bombay Full Bench and Madras High Court) and with equitable practice.
The District Judge was wrong to fix a time-limit and direct that on default the suit should be dismissed because that imposed on a Court lacking jurisdiction the duty (and power) to dismiss; likewise the Subordinate Judge's dismissal was erroneous because he had no jurisdiction to dismiss.

Fawcett, J.'s analysis (complementary statutory construction and practical direction):

Section 10's language (including the clause providing for the suit being stayed until additional fee is paid and that the suit shall be dismissed if not paid) presupposes that the Court which dismisses is a Court that has jurisdiction to try the suit; the term "dismissed" ordinarily contemplates a stage where the Court has jurisdiction.
Order VII, Rule 10 gives a mandatory direction to return a plaint where the Court finds it lacks jurisdiction; Rule 11 governs cases where the Court has jurisdiction to try the suit but the relief is undervalued or the plaint is insufficiently stamped.
Where undervaluation results in lack of jurisdiction, the case falls under Rule 10 and not Rule 11; consequently, the duty to collect additional fees under section 10 is meant to operate in situations covered by Rule 11 (i.e., where the Court has jurisdiction).
Accordingly, the Subordinate Judge's original order returning the plaint was the correct step; the proper Court (when the plaint is presented to it) may then require payment of any deficient fee within a time to be fixed and, if unpaid, may then reject the plaint under Rule 11(b) or (c).
The District Judge exercised jurisdiction he did not possess in ordering dismissal on default; given no other remedy, this Court was justified in intervening under section 115 of the Civil Procedure Code.

Both judges therefore converged on the following legal architecture:

Return of plaint (Order VII, Rule 10) is the mandatory step where the Court finds it lacks jurisdiction because of undervaluation.
Requiring additional fees and dismissal/rejection for non-payment applies to situations where the Court has jurisdiction (Order VII, Rule 11 and section 10 in that context).
When a plaint is returned, the plaintiff is entitled to credit for fees already paid; any steps to require payment of deficiency fall to the proper Court that has jurisdiction to try the suit.

Holding and Implications

Core Ruling: The Court made the rule absolute and set aside the impugned orders.

More specifically:

The order of the Subordinate Judge of Hukeri dated August 8, 1925, dismissing the suit, is set aside.
The order of the District Judge dated July 18, 1925 (which fixed a fortnight and directed dismissal on default), is also set aside and in its place the Court directed that the appeal to the District Judge should be dismissed with costs.
The original direction of the Subordinate Judge dated April 14, 1924 (that the plaint be returned for presentation to the proper Court) remains in effect and the plaintiff bears the costs up to that date.
Any plaint re-presented to the proper (First Class) Court must be given credit for fees already levied by the Subordinate Judge; that proper Court may fix a time for payment of any deficient fee and, if unpaid, may then reject the plaint under the provisions of Order VII, Rule 11.
As an incidental consequence, when returning the plaint the Subordinate Judge must also return any stamp papers deposited in his Court in accordance with the District Judge's direction.

Costs allocation specified in the opinion:

Plaintiff bears all costs incurred up to April 14, 1924 (per the original Subordinate Judge order directing return).
Any subsequent costs incurred in the trial Court should be treated as costs in the subsequent suit if the plaint is presented in the First Class Court; if not so presented, those subsequent costs should be borne by the plaintiff.
The District Judge's order that the respondent's costs of the appeal to him be borne by the appellant is not disturbed.
In this Court (the present proceedings), the applicant succeeded and the opponent must bear the applicant's costs in both cases.

The opinion primarily resolves the procedural question between return of plaint under Order VII, Rule 10 and dismissal/rejection for non-payment under section 10 of the Court Fees Act taken with Order VII, Rule 11. The decision's effects are directed to the parties and the specific orders in question; the Court applied and relied upon prior High Court decisions to resolve the procedural conflict rather than announcing a new substantive principle beyond that application.

End of summary. (Rule made absolute.)

Show all summary ...

Patkar, J.:—

The plaintiff in this case sued to recover possession of the property with past and future mesne profits and costs in the Subordinate Judge's Court of Hukeri. The defendant contended that the market value of the property in suit was more than Rs. 5,000 and that the Hukeri Court had no jurisdiction to try the suit. On April 14, 1924, the Hukeri Subordinate Judge held that the market value of the subject-matter in suit was more than Rs. 5,000 and therefore the Court had no jurisdiction to try the suit and directed that the plaint be returned for presentation to the proper Court. The plaintiff appealed against this order and the learned District Judge held that the best order to pass was to follow the directions of section 10 of the Court Fees Act. He, therefore, vacated the order of the trial Judge and instead of that he passed the following order:—

“Plaintiff do within a fortnight of the reaching of the Record in the trial Court amend the plaint by showing the market value of the house to be Rs. 5,397 and paying the deficient Court fee on the plaint. If that amendment is not made and the deficiency of the Court fee is not made good within that time, then the suit shall stand dismissed. If it is so made, then the plaint shall be returned for presentation to the proper Court.”

Application No. 312 of 1925 has been filed against this order. On August 7, 1925, the plaintiff paid the deficient Court fee, but the Subordinate Judge of Hukeri dismissed the suit on August 8, 1925, on the ground that the District Judge had given only a fortnight's time to make good the deficient Court fee and as the plaintiff did not amend the plaint and pay the deficient Court fee stamp on August 6, 1925, he had no other recourse but to dismiss the suit. Against this order application No. 311 of 1925 has been filed in this Court by the plaintiff. Mr. Desai for the plaintiff contended that the only Court which could pass the order dismissing the suit under section 10 of the Court Fees Act was the Court having jurisdiction, and that under Order VII, Rule 10, of the Civil Procedure Code it was the imperative duty of the Court to return the plaint for presentation to the proper Court. Under Order VII, Rule 11, the plaint shall be rejected if the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so. Order VII, Rule 11, may apply to the initial stage of the suit before the plaint is registered, and section 10 of the Court Fees Act may apply to a subsequent stage of the suit. But I think that the Court which can dismiss the suit for non-payment of the Court fees within time is a Court which has jurisdiction to dismiss the suit. If the plaint was returned for presentation to the proper Court the plaintiff could take advantage of the Court fee that had been paid on the previously filed plaint and he could pay the deficient Court fee in the Court having jurisdiction to hear the case. There was a doubt entertained for some time under the old Civil Procedure Code whether a plaint should not be returned before it was registered or whether it might be returned at any stage of the suit. The Bombay High Court took the view which is now embodied in Order VII, Rule 10 that the plaint may be returned at any stage of the suit. The Full Bench decision of the Bombay High Court in Prabhakarbhat v. Vishwambhar Pandit(1) says:—

“Where a Court fee on the institution of a suit has been paid in a Court which cannot possibly afford the relief sought, it does not seem consistent with sound principle that the plaintiff should be condemned to lose the fee thus paid, or that he should not be allowed to ask without paying a second fee for an adjudication from a Court which can really give one.”

These remarks show that according to the prevalent practice consonant with justice the plaintiff should be allowed to pay the deficient Court fee in the Court which has jurisdiction to hear the case and he should get credit for the Court fees which have been previously paid. This view has been accepted by the Madras High Court in Visweswara Sarma v. Nair, where it was held that:

“Where a Court after receiving a plaint and cancelling the stamp affixed thereto returns the plaint for presentation to the proper Court under Order VII, Rule 10, of the Civil Procedure Code of 1908 the latter Court to which the plaint is re-presented is bound to give credit to the fee already levied by the former Court.”

There is, however, a decision of the Madras High Court in Kandasami Goundan v. Subbai Goundan(2), in which there are some remarks which would favour the contention of Mr. Nilkanth for the opponent. But the point does not seem to have been fully argued in that case. I think that section 10 allows a Court to dismiss a suit for non-payment of the additional Court fee when it has jurisdiction to dismiss the suit. When at a subsequent stage of the suit it is found that the Court fees are insufficient and that the value of the property has been under-estimated, the Court has power to make an inquiry as to value of the property and if the Court has jurisdiction to decide the case, the Court can dismiss the suit if the additional Court fee is not paid within such time as the Court shall fix and that, is because the party disobeys the order of the Court and the suit must fail for want of prosecution. Where, however, the market value of the property goes beyond the pecuniary jurisdiction of the Court which has made such an inquiry, then I think it is the imperative duty of the Court under Order VII, Rule 10 to return the plaint for presentation to the proper Court. I think, therefore, that the District Judge was wrong in fixing the time within which the additional Court fee should have been paid in this case and in directing that on default the suit should be dismissed. I also think that the order of the Subordinate Judge (who had no jurisdiction in the case) dismissing the suit is erroneous. We make the rule absolute in both the cases. We set aside the order of the Subordinate Judge of Hukeri, dated August 8, 1925, and also set aside the order of the District Judge, dated July 18, 1925, and in its stead we would substitute the order that the appeal to the District Judge should be dismissed with costs.

Fawcett, J.:— I agree that there is a case here for our interference under section 115 of the Civil Procedure Code. No doubt section 10 of the Court Fees Act, 1870, does afford a basis for the contention of Mr. Nilkanth that on finding the market value to have been underestimated, the Court has an obligation to require the deficient Court fees to be paid, but I think that direction in the section presupposes that the Court has jurisdiction to try the suit. That is supported by the fact that in the second clause of section 10 provision is made for the suit being stayed until the additional Court fee is paid, and it is enacted that if the additional fee is not paid in time the suit shall be dismissed. The word “dismissed” contemplates ordinarily a stage where a Court has jurisdiction to try a suit, and does not merely reject a plaint. This construction, I think, is also in accordance with the principle that the Court should try and construe enactments that otherwise may be inconsistent in a manner that reconciles them as far as possible. The Civil Procedure Code in Order VII, Rule 10, gives a mandatory direction that, if the Court finds that it has no jurisdiction to try a particular suit, the plaint shall be returned to be presented to the proper Court. Rule 11 of the same Order seems to me to cover cases where the Court has jurisdiction to try the suit, even if the relief claimed is undervalued. Accordingly, if the Court finds that the relief claimed is undervalued and that in consequence it has no jurisdiction to try the suit, then, in my opinion, the case falls under Rule 10 and not under Rule 11(b) of Order VII, and section 10 of the Court Fee Act, in so far as it requires the same Court to collect additional fees, is meant to apply to a case of the nature dealt with in clause (b) of Rule 11. Therefore the original order of the Subordinate Judge is, in my opinion, the correct one to pass, especially having regard to the general principle accepted by a Full Bench of this Court in Prabhakarbhat v. Vishwambhar Pandit. It would be for the proper Court, if and when the plaint is presented to it, to take the requisite steps to have the deficient Court fees paid within a time to be fixed by that Court. Then the case would in that Court fall under the provisions of Order VII, Rule 11, clause (b) or (c), and the Court, if the requisite payment was not made in the proper time, could then reject the plaint. I think, therefore, that the District Judge exercised a jurisdiction which was not vested in him and that, there being no other remedy available, this Court should intervene under section 115 of the Civil Procedure Code. Our order varying the order of the District Judge so as to merely dismiss the appeal to him must be taken as effecting the dismissal of that appeal today, and our order setting aside the Subordinate Judge's order rejecting the plaint and dismissing the suit must also of course have effect from to-day. As an incidental consequence, the Subordinate Judge in returning the plaint to the plaintiff must also return any stamp papers that have been deposited in his Court in accordance with the direction of the District Judge.

As regards costs, under the original order of the Subordinate Judge directing the plaint to be returned, the plaintiff has to bear all costs up to that date of April 14, 1924. That order as to costs will stand. The District Judge ordered that, in case the amendment is made and the plaint is ultimately presented to the First Class Court, then the costs of the proceedings in the trial Court will be costs in the subsequent suit. We think that any subsequent costs incurred in the trial Court should be dealt with in that way, namely, that if the plaint is presented in the First Class Court they will be costs in the suit, but otherwise they should be borne by the plaintiff. As regards the costs of the appeal to the District Judge, there is no reason to interfere with his order that the respondent's costs of that appeal should be borne by the appellant. As to the costs in this Court, the applicant has been successful and following the ordinary rule, the opponent should bear his costs in both the cases.

Rule made absolute.

R.R