Courtney Terrell, C.J:— This is a petition for the civil revision of a decision of the Subordinate Judge of Darbhanga.
The plaintiff began the present suit (Title Suit no. 85 of 1931) against the defendant on the following allegation: The plaintiff alleged that he was the Chela of a certain former Mahanth of a certain Math; that the defendant had become the Mahanth of the Math but had taken a wife and, on the contention of the plaintiff, he thereby vacated the office of Mahanth. He sought a declaration that he (the plaintiff) was the Mahanth of the Math and was entitled to get possession of all the properties, and he further asked that after declaring the plaintiff's title the Court should give him possession of the, properties of the Math which were specified in the plaint. He paid court-fees upon the plaint on the basis of section 7, clause (5), of the Court-Fees Act.
The defendant contested that the proper fee payable was under section 7, clause (4)(c), saying that a declaratory decree or order had been claimed and that the decree for possession, which was asked for, was consequential relief. The plaintiff, on the other hand, contended that it was a mere suit for possession and in any case notwithstanding that there was a claim for a declaration of title, the suit being substantially a claim for possession, clause (5) of the section was applicable and the proper stamp duty payable was ten times the Government revenue. The decision of the learned Subordinate Judge was in favour of the defendant upon this point, and he held that the stamp fee must be paid upon the valuation of the relief sought. Accordingly, before the merits of the suit could be gone into, the plaintiff comes up to this Court for revision of the Subordinate Judge's order in the matter of the stamp fee payable.
A preliminary objection was taken that the process of revision does not be in such cases and a number of authorities have been cited and it was said that there was a conflict of judicial opinion as to whether revision lay or not. In my opinion, there is no such conflict and I would respectfully agree with the view of the late Mr. Justice Jwala Prasad in the case of Mani Lal v. Durga Prasad and particularly with his observations on page 429 “There is, however, no conflict in the principle underlying these conflicting decisions. That principle is that ordinarily an interlocutory order is not capable of revision, particularly when there is another remedy available to the injured party; but where the order complained against is such as is calculated to cause irreparable loss to the injured party and there is no right of appeal and no remedy available to the party, an interlocutory order may be revised under section 115 of the Civil Procedure Code read with section 15 of the Charter Act (Section 107 of the Government of India Act)”.
It has been suggested from time to time that the proper course for the plaintiff as to a decision of this character against him is to submit to having his suit dismissed on this ground and then exercising his right of appeal. There being that remedy by way of appeal the Court should not exercise it in revision. To apply that reasoning in any hard and fast manner seems to me to be taking a very narrow and pedantic view of the law and to accede to it would be allow a triumph of form over substance. There are really two classes of cases. On the one hand, where there is a mere matter of valuation the Munsif or other authority applies his mind to the question of valuation and ultimately comes to a decision, and it has been rightly held that in such circumstances he having exercised his jurisdiction no appeal will lie against the quantum of stamp duty which he directs shall be payable; but there are also cases in which the question is as to the particular category into which the suit falls, that is to say, whether the duty is payable upon the suit as belonging to a particular class or whether another duty is payable as belonging to another class. The officer will give a decision upon this matter quite irrespective of the question of the quantum of the duty payable in the particular case and, if he decides that the case falls to a class other than that contended for by the applicant and therefore is liable to payment of an amount which is larger than that which the plaintiff contends for and refuses to entertain the suit until the higher duty is paid, it amounts to a refusal to exercise jurisdiction upon legal grounds and therefore it is a matter properly to be reviewed in revisional proceedings. Two cases were brought to our notice where it has been contended that a different view has been held. One was the case of Sham Narain Singh… v. Basudeo Prasad Singh…Opposite Party. decided by Mr. Justice Wort and Mr. Justice Kulwant Sahay; but the report of that case gives no indication in itself as to the class of the decision which was given by the lower Court. One may infer, however, from the facts that the learned Judges decided that revision did not lie and that the matter was really one of quantum and not one of category. To my mind this case gives us no guidance, in the matter. It is quite consistent with the Court having held that if it had been a case of the category under the section into which the suit fell they might have been inclined to revise the decision. In the case of Maharaja Bahadur Singh v. Raja Prithichand Lal Mr. Justice Fazl Ali agreed with the view expressed by Mr. Justice Jwala Prasad in Mani Lal v. Durga Prasad and held that where there is no other remedy to the injured party and when the order is calculated to cause irreparable loss to such a party, revision would be exercised.
Having decided, therefore, that the matter is open to us for revision, we approached the merits of the case, and here in my opinion the case of the petitioner is as bad as it is good on the first point. The suit in this case is of this nature. Until it has been decided, first of all, whether the Mahantship has become vacant by reason of the marriage of the defendant and, secondly, even in such case whether the plaintiff is entitled to succeed the defendant in the Mahanthship, it is quite impossible for any Court to accede to the prayer of the plaintiff that he be given possession of the properties in dispute. The difference between the two classes of cases has been clearly demonstrated in various cases, particularly by the decision of a Full Bench in Ram Sumran Prasad v. Gobind Das(3) and I would refer particularly to the passage in the judgment of Sir Dawson Miller, C.J at page 131. “The Court is in all cases bound to adjudicate upon the matters in issue between the parties and it is unnecessary for the plaintiff to pray that this should be done. The real relief which the plaintiff seeks is delivery of possession of the property by dispossession of the defendant, and, if he asks for a decree in those terms when he is not bound first to ask for a declaration before such relief can be granted, I do not think that, merely because he asks the Court to adjudicate upon the matters in issue, the suit should be treated as a suit to obtain a declaratory decree with consequential relief. The real question for determination appears to me to be whether or not the plaintiff an obtain in the present suit a decree for possession without first seeking a declaration that the gift to the defendant by Jainti Kumari is not binding.”
In this case it is clear that the plaintiff before he can get his possession, which he asks for, must have it decided in his favour that the defendant has vacated the office of Mahant and, secondly, that he (the plaintiff) has succeeded to that office and a finding and a declaration to that effect is essential to his success. It is, therefore, a suit for a declaration with consequential relief, and not merely a suit for possession with incidental preliminary determination of title.
In my opinion, the petition fails and should be dismissed with costs: hearing fee three gold mohurs.
Luby, J.:— I agree.
Rule discharged.