Niamatullah, J.:— This case has been laid before us for orders on the plaintiff-appellant failing to make good an alleged deficiency in the Court fees paid by him on the plaint in the trial Court, on his memorandum of appeal in the lower appellate Court and on his memorandum of appeal presented in this Court.

2. The suit was for a declaration that

“a deed of gift or endowment, dated 14th October 1925, apparently executed by Mirza Wazir Ali Begin favour of defendant 1 in respect of the house….is illegal and ineffectual as against the plaintiff and that the defendants have, no right to interfere with the possession of the plaintiff.”

3. A Court fee of Rs. 20 was paid in the trial Court, as the relief sought was supposed to involve two declarations. The suit was valued at Rs. 2,000. No question as to Court fee arose in the trial Court. The suit was dismissed on the merits. An appeal to the lower appellate Court was also dismissed. In that Court also a fee of Rs. 20 was paid and no question regarding its sufficiency was raised. A second appeal was filed in this Court as far back as 6th July 1931, on a Court fee of Rs. 20. No objection-seems to have been taken to the sufficiency of the court-fee till comparatively recently, when the stamp reporter made a note on the 4th November 1932, after the paper book was ready, that ad valorem court-fee should have been paid on the plaint, on the memorandum of appeal in the lower Court and on the memorandum of appeal in this Court.

4. According to him there was a total deficiency of Rs. 315 after making allowance for the Rs. 20 paid in each of the three Courts. The stamp reporter's report was shown to Mr. Haribans Sahai, advocate of the appellant, on the 8th November 1932, when he affixed his signature in token of having seen the report. Under R. 11, Chap. 3, of the Rules of this Court, the stamp reporter's report should be contested within three weeks, and in default the accuracy of the report is not liable to be subsequently contested. If the report had been contested within the aforesaid time, the case would have been laid before the Taxing Officer whose decision would have been final under Section 5 of the Court-Fees Act. It is open to question whether the Taxing Officer's decision which is final so far as court-fee payable on the memorandum of appeal in this Court is concerned or is equally so in respect of the court-fee payable in the trial Court and in the lower appellate Court. In the view of the case we are inclined to take, this question does not fall to be decided.

5. By an order, dated 7th December 1932, passed by a learned Single Judge of this Court, three months' time was allowed to the appellant to make good the deficiency. Two months' further time was allowed on the 8th March 1933, but no payment was made. On the 30th March 1933, Mr. Jawahar Lal, another advocate, made an application pointing out that the stamp reporter's view as regards the court-fee payable in the case was erroneous. It is significant that this application was not made by Mr. Haribans Sahai, who had affixed his signature to the report of the stamp reporter on the 8th November 1932, though it was Mr. Haribans Sahai who appeared before us to argue the case. It may be that the application was made by Mr. Jawahar Lal, and not by Mr. Haribans Sahai, in view of the language of R. 11, Chap. 3, of the Rules of this Court, which provides that

“If such note (note of dissent by the advocate on the stamp reporter's report) is not made within such time (three weeks), it shall not be open to such advocate or attorney to dispute the accuracy of the report.”

6. The phraseology of the section makes it arguable that the disability imposed by the rule applies to the “advocate or attorney” who had received notice of the stamp reporter's report and omitted to question it within three weeks and that it does not prevent the litigant himself or any other advocate from subsequently questioning it. It is needless to say that such was never the intention of the framers of the rule, though the rule as it stands lends countenance to that contention. On this point again, we do not propose to express any decisive opinion, as the case, can be disposed of on broader grounds. On Mr. Jawahar Lal's application above referred to the Taxing Officer (the Registrar of this Court), referring to the various extensions of time granted by the Court, recorded an order declining “to enter into the merits of the objection”. The deficiency in the court-fee not having been made good in terms of the stamp reporter's report, the case was laid before us for orders. If we hold, and if it is permissible for us to hold, that the court-fee paid on the memorandum of appeal in this Court was insufficient, the appeal is to be rejected, unless we grant a further extension. But two questions arise for our consideration:—

(1) Whether it is open to us to rule, contrary to the report of the stamp reporter, that the court-fee paid by the plaintiff appellant was sufficient; and (2) whether the court-fee paid by the plaintiff appellant in the three Courts, specially on his memorandum of appeal in this Court, was, in fact, sufficient.

7. We assume, for the purposes of this case, that it is not open to the appellant or any of his advocates to question the accuracy of the report of the stamp reporter in view of R. 11, Chap. 3, of the Rules of this Court. There is, however, no rule of law which prevents the Court from overruling the view expressed by the stamp reporter. R. 11, Chap. 3, of the Rules of this Court operates as a bar against the appellant, but it cannot prevent the Court from entering into the question of the sufficiency of the court-fee. If a difference of opinion had arisen between the appellant's advocate and the stamp reporter, when the latter recorded his note on the 4th November 1932, and the matter had been laid before the Taxing Officer, whose decision is final under Section 5 of the Court-Fees Act, the position would have been different. The Taxing Officer's decision, at any rate, regarding the court-fee paid in this Court, would have been final. This has been held in a number of cases, see for example, Balkaran Rai v. Gobind Nath(1) and Kunwar Karan Singh v. Gopal Rai(2). In the case before us, however, no occasion arose for the Taxing Officer to decide the question on its merits, and there is no “decision thereon” by the Taxing Officer before us. The Taxing Officer's order of 20th April 1933, above referred to cannot be considered to be a decision under Section 5 of the Court-Fees Act, as he expressly “declined” to enter into the merits of the objection. We entertain no doubt that Section 5 of the Court-Fees Act, contemplates a decision of the Taxing Officer on the merits of the’ question. It provides that

“On a difference arising between the officer whose duty it is to see that any fee is paid under this chapter, and any suitor or attorney, as to the necessity of paying a fee or the amount thereof, the question shall…… be referred to the taxing officer, whose decision thereon shall, be final……”

8. Where the Taxing Officer declines to entertain the question and to decide it, his order cannot be considered to be one under S. 5, so as to operate as a bar to the question of court-fee being considered by the Court. For these reasons we are of opinion that it is open to us to decide for ourselves whether the stamp reporter's report on the question of court-fee was correct.

9. On the second question we have no doubt that the stamp reporter's view is erroneous. He professed to act on the Full Bench decision in Kalu Ram v. Babu Lal(3), which was a case in which the plaintiff had claimed a declaration and also cancellation of an instrument under Section 39 of the Sp. Relief Act. It was held that the relief of cancellation was a consequential relief and, therefore, the suit should not be regarded as one for declaration only. In those circumstances, ad valorem court-fee was held to be payable. The question came up for consideration before a Division Bench, of which one of us was a member Lakshmi Narain Rai v. Dip Narain Rai(4), and it was pointed out that, where the plaintiff deliberately seeks the relief of declaration with no consequential relief, such as the cancellation of an instrument, ad valorem court-fee is not payable. The same view was taken in a still later case, Sri Krishna Chandra v. Mahabir Prasad(5), in which a Full Bench of this Court held that

“Where the plaintiff merely asked for a declaration that the previous decree was not in any way binding on him and was altogether void and ineffectual, the suit was one for obtaining a declaratory decree only and fell under Article 17(III), Sch. 2, Court-fees Act, and the court-fee of Rs. 10 paid by him was sufficient.”

10. In the case before us, the plaintiff claimed no more than a declaration. If he might and ought to have claimed any further or consequential relief and has omitted to do so, he may have offended against the provisions of Section 42 of the Specific Relief Act; but for all purposes of the Court-Fees Act, we have to consider merely the relief actually claimed by the plaintiff and not the relief which he ought to have claimed. The stamp reporter did not notice tins distinction, and it is to be regretted that Mr. Haribans Sahai also overlooked this aspect of the case. It was not till the subsequent decisions above referred to gave prominence to the distinction that the appellant thought of contesting the stamp reporter's report. This was, however, done after the expiry of the three weeks allowed under R. 11, Chap. III, of the Rules of this Court. As already pointed out it is not open to the appellant, car his advocate, to question the accuracy of the stamp reporter's report; but there is nothing to prevent this Court from passing appropriate orders at this stage, when the question is whether the appeal should be dismissed for non-payment of court-fee in terms of the stamp reporter's report. As in our opinion sufficient court-fee was paid by the plaintiff in all the three Courts, there is no deficiency to be made good and his appeal cannot be rejected. In this view, the appeal as also the plaint and the memorandum of appeal in the lower appellate Court are declared to be sufficiently stamped. The appeal shall be fixed for hearing on the merits.

R.K

11. Order accordingly.