1. This second appeal arises out of a suit which was instituted under O. 21, R. 63 of the CPC. The plaint bore a stamp of Rs. 15; but the Subordinate Judge called upon the plaintiff to pay a court fee ad valorem on the value of the property. The plaintiff did not pay and the plaint was rejected. The plaintiff appealed to the District Judge stamping his memorandum of appeal as for an appeal against an order; but the learned District Judge required him to stamp his memorandum with a court-fee stamp of the value of Rs. 15 granting him time for the purpose. Later on the same day the District Judge cancelled this order and required the plaintiff to pay court-fee ad valorem on the value of the property. The plaintiff failed to pay and his memorandum of appeal was rejected. When the second appeal came before the High Court, the Taxing Officer referred to the Taxing Judge the question of what court-fee should be demanded from the appellant. It was held by the Taxing Judge that court-fee should be paid ad valorem on the difference between the value of the stamp on the plaint and the amount of court-fee demanded by the Subordinate Judge.
2. Mr. S.K Mitter on behalf of the appellant points out that after the decision of the Judicial Committee in 35 Cal 2021 it cannot be argued that a plaint under O. 21, R. 63, requires a higher court-fee stamp than Rs. 15. In the case before the Judicial Committee, the plaintiff had prayed for an injunction which had been granted, and he paid court-fee separately for the declaration and for the injunction, but the Privy Council pointed out that a single court-fee was sufficient under Article 17(1) of Sch. 2, Court-fees Act.
3. In the present case the Subordinate Judge demanded ad valorem court-fee because the plaintiff prayed for an injunction; but the prayer for an injunction cannot after the decision in 35 Cal 202 be treated as taking the plaint out of the operation of Article 17(1).
4. On the question of what was the proper stamp for the memorandum of appeal, the learned Government Pleader argues that this should be the same as the stamp on the plaint; and the learned advocate for the respondents suggests that this should be ad valorem on the value of the property. The memorandum bore a stamp of one rupee; but the appellant's pleader in the Court of the District Judge accepted the view that stamp of Rs. 15 was payable. In 10 PLT 5452 it was held that a memorandum of appeal of this kind must be stamped ad valorem; and it appears to have been assumed that this necessarily meant ad valorem on the value of the suit. That decision would be applicable to this case if any attempt had been made to defend the treating of the appeal to the District Judge as an appeal from an order; but the question remains of what we should bake to be the value of the appeal in the District Judge's Court for the purposes of assessment of court-fee. In the High Court the value for that purpose has been taken to be difference between the value of the stamp on the plaint and the value of the stamp demanded by the Subordinate Judge. That appears to us to be a reasonable method of assessing valuation of court-fee in cases where the only point raised is the question of whether the plaint or the memorandum of appeal was sufficiently stamped. This was the view taken by Straight and Oldfield, JJ., in (1882) AWN 244.3 The appellant must make good the deficit of Rs. 36-8-0 on the memorandum of appeal in the District Judge's Court within fourteen days. If he does this within time, this appeal be allowed with costs payable by the defendant-respondents for this Court and the Court below. If he fails to make good the deficit within the time allowed, the memorandum of appeal to the District Judge will stand rejected, and the appeal to this Court will stand dismissed.
S.G/R.K
5. Order accordingly.