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Case Number

Appeal No. 198 of 1934

Judges

S.K Ghose
Patterson, JJ.

Acts

Section 7, Cl. (v) of the Court-fees Act.2.
SECTION 13 COURT FEES ACT

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Smart Summary

Summary of Opinion — S.K. Ghose, J.

Factual and Procedural Background

The plaintiffs brought a suit to set aside a Collector's certificate sale made for arrears of cess, alleging that the sale was fraudulently effected by defendant 1 in collusion with peons of the Collectorate. As an alternative to setting aside the sale, the plaint sought a decree directing defendant 1 to return the properties to the plaintiffs or, failing that, to pay Rs. 1,00,000 as compensation.

Paragraph 8 of the plaint stated the suit value at Rs. 1,00,000 and recorded that a court-fee of Rs. 1,020 had been paid on Rs. 15,505-6-0 (being ten times the revenue) under Section 7, Cl. (v) of the Court-fees Act.

The Subordinate Judge decided (17 May 1934) that the larger relief claimed — the alternative prayer for Rs. 1,00,000 — governed valuation for court-fee purposes and directed the plaintiffs to pay court-fees on Rs. 1,00,000. The plaintiffs were allowed time until 21 June 1934 to pay the balance.

On 21 June 1934 the plaintiffs filed a petition for amendment seeking to value the alternative compensation claim at Rs. 16,000 (and to be permitted, if entitled to additional compensation after hearing, to get a decree for the excess on payment of additional court-fee). The Subordinate Judge rejected that petition, referring to the decision in "44 Cal 352". The plaintiffs' subsequent petition for further time to pay deficit court-fees was rejected, and the plaint was rejected on 23 June 1934 under O.7, R.11 CPC for non-payment of deficit court-fees.

The plaintiffs appealed against the rejection of the plaint. The appeal raised questions about whether the lower Court was bound by the decision in "44 Cal 352", and whether the petition of 21 June 1934 amounted to an abandonment of part of the claim permissible under O.28, R.1 CPC (or, alternatively, an amendment under O.6, R.17 CPC).

Legal Issues Presented

Whether the Subordinate Judge was bound by the decision in "44 Cal 352" so as to refuse the plaintiffs' petition to amend the plaint (reducing the alternative compensation claim from Rs. 1,00,000 to Rs. 16,000) when that petition was made before the expiration of the time allowed for payment of deficit court-fees and before any rejection order had been passed.
Whether the plaintiffs' petition of 21 June 1934 constituted an allowable abandonment of part of the claim under O.28, R.1 CPC or, alternatively, an amendment of the pleadings under O.6, R.17 CPC.
Whether, on the merits, the petition should be treated as a genuine abandonment/limitation of the claim (and thus allowable) or merely as a tentative valuation subject to later enhancement.

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

The learned Judge below was wrong to treat the decision in "44 Cal 352" as binding in the present case because that decision assumed the plaint had already been rejected under O.7, R.11 CPC for failure to pay court-fees; in the present case the amendment petition was made before rejection and before time for payment expired.
The petition of 21 June 1934 sought to abandon part of the claim (reduce the alternative compensation claim from Rs. 1,00,000 to Rs. 16,000), which plaintiffs are entitled to do at any time after institution of the suit under O.28, R.1 CPC; alternatively the petition could be treated as an amendment under O.6, R.17 CPC.
On the record the plaintiffs were indeed asking to limit the compensation to Rs. 16,000 (the lower Court had understood the prayer as such and the appeal was limited to Rs. 16,000), so the petition should be allowed.

Respondent-Defendant 1's Arguments (Mr. Gupta)

The decision in "44 Cal 352" governs the present facts and therefore the lower Court was correct to refuse the amendment and ultimately to reject the plaint under O.7, R.11 CPC for non-payment of deficit court-fees.
On the merits, the application cannot be treated as one under O.23, R.1 (abandonment/limitation of claim) because the plaintiffs had not truly abandoned a part of their claim but were merely putting a reduced valuation tentatively with a claim to future enhancement; thus the petition should not be accepted as an abandonment.

Respondent-Defendant 2's Argument (Sir Saadulla)

Defendant 2 contended that he had been made an unnecessary party. The Court noted that, as he had been made a party in the trial Court, the appellate Court could not say he was an unnecessary party in the present proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
44 Cal 352	Held that where a plaint has been rejected under O.7, R.11 CPC for failure to pay deficit court-fees, the Court has no power to allow an amendment to strike out the consequential relief; the provision is mandatory and the Court is bound to reject the plaint.	The Court distinguished this authority on the facts: it construed 44 Cal 352 as taking for granted that the rejection order had already been properly made. In the present case the amendment petition was made before the rejection order and before the expiry of the time allowed for payment of deficit court-fees, so the Court held that 44 Cal 352 did not compel rejection here.
40 CWN 747	Authority that where within the time allowed for payment of deficit court-fees a plaintiff applies (for example) to continue as a pauper, it is not obligatory on the Court to reject the application or to reject the plaint; such an interposed application made before rejection may be considered.	The Court followed the view in 40 CWN 747 and relied on it to conclude that an application made before rejection (and within the time allowed) may be considered rather than mandatorily leading to rejection under O.7, R.11; this supported allowing the amendment here.
36 CWN 5673	Mentioned in the context of decisions that treated similar procedural points — referenced by Mr. Gupta as a bar to allowing intervening applications.	The Court discussed cases in this series and observed the earlier trial court had applied that decision to reject an application; the present Court did not accept that such prior holdings were the decisive ratio that would prevent consideration of an application made within the time allowed for payment of deficit court-fees.
36 CWN 7474	Referenced as part of the series of authorities considered on whether an interposed application affects mandatory rejection under O.7, R.11 CPC.	The Court noted that these authorities were considered and in the relevant instance were distinguished or not followed; the Court preferred the authority of 40 CWN 747 in reaching its conclusion.

Court's Reasoning and Analysis

The Court examined the factual timing of the plaintiffs' petition to amend and the reasoning of the authorities relied upon by the Subordinate Judge and by the respondent. It emphasized the following analytical steps, drawn from the opinion:

The Court interpreted the decision in "44 Cal 352" as assuming that the order of rejection had already been properly made under O.7, R.11 CPC for failure to pay deficit court-fees. In that circumstance, the Court in 44 Cal 352 held it had no power to permit amendment because the mandatory provision had operated to reject the plaint.
The present case differed on the facts: the plaintiffs made their petition for amendment (seeking to limit the alternative compensation claim to Rs. 16,000) before the time allowed for payment of deficit court-fees had expired and before any rejection order was passed. Therefore the factual premise on which 44 Cal 352 rested was not present here.
The Court observed that the plaintiffs could abandon part of their claim under O.28, R.1 CPC at any time after institution, or could seek amendment under O.6, R.17 CPC. Either characterization would permit the Court to consider and allow the petition prior to rejecting the plaint for non-payment of deficit court-fees.
The Court preferred and followed the authority of "40 CWN 747", which supported the proposition that when an interposed application is made within the time allowed to pay deficit court-fees and before rejection, it is not obligatory on the Court to reject the application or the plaint; thus the Court could consider the plaintiffs' petition.
The objection by Mr. Gupta that the plaintiffs' petition was merely a tentative reduced valuation (not a genuine abandonment) was considered but treated as not decisive. The Court accepted the view that the lower Court had understood the petition as seeking reduction and that the appeal was limited to Rs. 16,000; accordingly the plaintiffs were in fact asking to limit the claim to that figure.
On that basis, the Court concluded it was proper to allow the appeal, set aside the rejection, and direct that the plaint be amended to insert Rs. 16,000 in place of Rs. 1,00,000 wherever that sum appeared.
The Court then addressed costs and other practical consequences: it awarded costs to defendant 1 (including costs of the paper book) with the hearing fee assessed at ten gold mohurs; awarded costs to defendant 2 with hearing fee assessed at three gold mohurs; directed under Section 13 of the Court-fees Act that a certificate be issued authorizing repayment to the appellants of the full amount of the court-fees paid on the memorandum of appeal in this Court; and dismissed the cross-objection as not pressed (without costs).

Holding and Implications

APPEAL ALLOWED.

Core ruling:

The order rejecting the plaint dated 23 June 1934 is reversed.
The plaint is to be amended by replacing the figure "Rs. 1,00,000" with "Rs. 16,000" wherever that sum appears in the original plaint, effectively limiting the plaintiffs' alternative claim for compensation to Rs. 16,000.
Costs: defendant-respondent 1 is entitled to costs (including paper book costs) and his hearing fee is assessed at ten gold mohurs; defendant 2 is entitled to costs and his hearing fee is assessed at three gold mohurs.
A certificate is directed under Section 13 of the Court-fees Act authorizing the appellants to receive back from the Collector the full amount of the court-fees paid on the memorandum of appeal in this Court.
The cross-objection was not pressed and is dismissed without costs.

Consequences: The direct effect is the restoration of the plaint with the specific amendment limiting the compensation claim to Rs. 16,000 and the assessment of costs and hearing fees as above. The Court distinguished the decision in "44 Cal 352" on the factual ground that the amendment petition here was made before any rejection order and before the expiry of the time allowed for payment of deficit court-fees, and the Court followed "40 CWN 747" on the permissibility of considering an interposed application made within the time allowed. The opinion resolves the dispute between those authorities on the facts of this case but does not purport to lay down a broader new precedent beyond its factual conclusions.

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Mt. Saiyadunnessa Khatun v. Gaibandha Loan Co. Ltd.

S.K Ghose, J.:— This is an appeal by the plaintiffs and it arises under the following circumstances: The suit was for setting aside a certificate sale held by the Collector for arrears of cess on the allegation that the sale was fraudulently brought about by defendant 1 in collusion with the peons of the Collectorate. There is a further prayer that if the Court should decide that the sale is not liable to be set aside, a decree may be passed directing defendant 1 to return the properties to the plaintiffs or, failing that, to pay a sum of one lac of rupees to the plaintiffs as compensation. Para. 8 of the plaint runs thus:

For the purposes of the jurisdiction of this Court this suit is valued at Rs. 1,00,000 and the property in suit being a revenue-paying Mahal this plaint in this suit is filed by paying a court-fee of Rs. 1,020 on Rs. 15,505-6-0 as being ten times the revenue thereof amounting to Rupees 1,550-8-6 per year under Section 7, Cl. (v) of the Court-fees Act.

2. Thereupon the question of adequacy or otherwise of court-fees came up for decision and was considered by the Subordinate Judge in his order dated 17th May 1934. He decided that the governing factor should be the larger relief asked for, which in this case was the alternative prayer for payment of one lac of rupees, and he accordingly directed the plaintiffs to pay court-fees on one lac of rupees. On 31st May 1934 the plaintiffs put in a petition praying for time to file the balance of the court-fees as ordered and three weeks time was allowed till 21st June 1934.

3. On that date the plaintiffs, instead of paying the balance of court-fees, filed a petition for amendment, which is printed at p. 36 of the paper, book. The prayer was that they should be allowed to value their alternative claim for compensation at present on Rs. 16,000, and if after hearing they are found to be entitled to additional compensation then they pray that they may be allowed to get a decree for that excess amount by paying additional court-fee thereon;

and they asked that the prayer Kha of the plaint might be amended accordingly. The order which the Subordinate Judge passed upon this petition on 21st June 1934 does not show that he considered the prayer on its merits, but it is also clear that he understood that the prayer was to reduce the amount of compensation. The order runs thus:

In this case plaintiffs' relief in the suit was for possession of the property or compensation to the extent of one lac of rupees. The Court held that the larger of the two reliefs would determine the value of the stamp and asked the plaintiffs to supply the requisite stamp paper on one lac of rupees within a certain time. The plaintiffs pray today for amendment of the plaint by reducing the amount of compensation. In view of the decision in 44 Cal 352,1 think the prayer for amendment cannot be allowed. The petition is therefore rejected.

4. Upon that the plaintiffs filed a petition praying for further time to file deficit court-fees, but this was rejected. There, upon as the plaintiffs did not take any further steps, the plaint was rejected on 23rd June 1934. Against that order this appeal has been filed. The contention for the appellant is that the learned Judge below was wrong in thinking that in the present case he was bound by the decision in 44 Cal 352, and that what the plaintiffs were asking for by the aforesaid petition of 21st June 1934 was to abandon a part of their claim, which they are entitled to do at any time after the institution of the suit under O. 28, R. 1 of the CPC. Mr. Gupta for the respondent-defendant 1, on the other hand, has contended that the decision in 44 Cal 352 governs the facts of the present case. In that case, a court-fee of Rs. 10 was paid in a suit purporting to be under Section 111-A of the Ben. Ten. Act, but the plaintiffs prayed for the declaration (a) that they were occupancy raiyats, and (b) that the entry in the Record of Bights, showing them as tenure-holders, was a nullity; the plaintiffs, on being required to supply the deficit court-fee on the Second relief claimed, failed to do so within the time fixed by the Court and so the plaint was rejected under O. 7, R. 11 of the CPC. Thereupon, at the time of the argument before the High Court, the Advocate for the appellants prayed for permission to have that prayer struck off and for restoration of the suit. The judgment of Sanderson, C.J shows that the Court agreed with the decision of the Judge below and held that he had no alternative but to reject the plaint under O. 7, R. 11. Turning to the suggestion made in the High Court for permission to have the prayer for consequential relief struck off, Sanderson, C.J remarks as follows:

The learned counsel who appeared on behalf of the plaintiff asked this Court to give the plaintiff leave to amend his plaint by striking out para, (b) of clause 11 in his plaint. In my judgment he ought not to be allowed to do so for the reasons I have already given, and this Court has no more power than the learned Judge when it is shown that the case comes within O. 7, R. 11. This Court has no jurisdiction; the provision is mandatory, and this Court, just the same as the Court below, is bound by that section which provides that under the above-mentioned circumstances the suit shall be rejected.

5. It seems to me that this decision takes it for granted that the order of rejection of the plaint had already been made properly under O. 7, R. 11, for failure to pay the court-fees within the time allowed by the Court. That being the case, it was not open to the Court to allow further amendment of the plaint. But in the present case the prayer for amendment was made Actually before the order rejecting the plaint was passed and before the time allowed by the Court for payment of the deficit court-fees had expired. The Court undoubtedly had power to allow abandonment of part of the claim on the part of the plaintiff or, if it be treated as an amendment of the pleadings, to order such amendment under O. 6, R. 17. Either of these things could be done at any time after the institution. Surely it cannot be said that the Court had lost that power by reason of the fact that the party had been allowed a certain time within which to file the court-fees. On the facts as mentioned above it seems to as that the present case may be distinguished from those in 44 Cal 352. This is in conformity with the view which was taken in 40 CWN 747.2 Mr. Gupta has contended, that case and a series of cases considered there may be distinguished on the ground that there the question was whether an insufficiently stamped plaint could be allowed to be treated as an application to sue in forma pauperis. But we do not think that this was the ratio decidendi. There also the plaintiff was allowed time by the Court to pay deficit court-fees. On the date fixed for such payment the plain, tiff, instead of paying the deficit court-fees, applied for permission to continue the suit as a pauper. The trial Court held it to be barred by the decision in 36 CWN 5673 and so rejected the application, and the deficit court-fees not being paid rejected the plaint. The order of rejection was undoubtedly justified by the provisions of O. 7, R. 11. But the question arose whether the interposition of the application for permission to continue the suit there made any difference. It was held that when such an application is made within the time allowed by the Court for payment of the deficit court-fees and before the plaint is rejected, it is not obligatory on the Court to reject the application. In this case, 36 CWN 7474 cited above, was considered and distinguished or not followed. In the present case, having regard to the facts, we prefer to follow the authority of the case reported in 40 CWN 747, and we most hold that the learned Judge below was not justified in holding that he was bound by the decision in 44 Cal 352 to reject the plaintiffs' application for amendment.

6. Mr. Gupta for the respondent-defendant 1 has contended that on the merits the application cannot be treated as one under O. 23, R. 1, because really the plaintiffs had not abandoned any part of their claim and that they were only putting the reduced valuation tentatively with a claim to future enhancement if possible. It seems to us that this objection is not so important. If the application does not come under O. 23, R. 1, it would come under O. 6, R. 17, as being an application for amendment of the pleadings. The point is that in either view, before rejecting the plaint, the Court was entitled to consider the application on the merits. But as a matter of fact Mr. Chakraburty appearing for the appellant in this Court has contended that the plaintiff's application was really meant to be an abandonment of a part of their claim by reducing the value of the alter, native claim for compensation from Rupees 1,00,000 to Rs. 16,000. Mr. Chakraburty has to admit that the language of the petition for amendment is at least clumsy from this point of view, but he points out that in the lower Court the learned Judge himself understood the prayer to be one for reducing the amount of compensation and further that p. 40 of the paper book shows that the present appeal is also limited to the amount of Rs. 16,000. Therefore there is no question that the plaintiffs are really asking to be allowed to limit the amount of compensation to Rs. 16,000. The order rejecting the plaint being out of the way, it is open to the Court to consider the application and allow the plaintiffs to limit their claim for compensation to that figure. We consider that this should be done in this case and it is not necessary, as was done in 40 CWN 747, to direct the lower Court to consider the application again on its merits. In this view we allow the appeal, reverse the order rejecting the plaint, and direct that the plaint be taken with the amendment as mentioned above. The plaint will be amended by inserting the figure Rs. 16,000 in place of Rs. 1,00,000 wherever that sum appears in the original plaint. On the question of costs Mr. Gupta has pointed out that the suit was filed so long ago as 1933. The plaint was once rejected for non-payment of court-fees and then revived. There is also a certain amount of laches on the part of the plaintiffs in the proceedings at which the defendants appeared. Defendant-respondent 1 who appeared in this Court is entitled to his costs including the costs of the paper book, if any, hearing fee in his case is assessed at ten gold mohurs.

7. Sir Saadulla appearing for the defendant 2 in this Court has contended that he has been made an unnecessary party. Whether he was an unnecessary party to the plaint is a question which we need not enter into. As he was made a party defendant in the trial Court, we cannot say that he was made an unnecessary party in this Court. Defendant 2 is also entitled to his costs from the plaintiffs; hearing fee in his case is assessed at three gold mohurs. Under Section 13 of the Court-fees Act, we direct a certificate to be granted to the appellants authorizing them to receive back from the Collector the full amount of the court-fees paid on the memorandum of appeal in this Court. The cross-objection is not pressed, and is dismissed without costs.

Patterson, J.:— I agree.

T.M/A.L

8. Appeal allowed.

Mt. Saiyadunnessa Khatun v. Gaibandha Loan Co. Ltd.

Summary of Opinion — S.K. Ghose, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

Respondent-Defendant 1's Arguments (Mr. Gupta)

Respondent-Defendant 2's Argument (Sir Saadulla)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mt. Saiyadunnessa Khatun v. Gaibandha Loan Co. Ltd.

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