Manuk, J.:— This is an application, under Section 115 of the CPC, inviting us to revise an order of the Additional Subordinate Judge of Gaya, dated 7th May, 1918. It is necessary to set out the facts briefly for the purpose of considering the question of law arising for our determination. The petitioner is the only daughter of one Sital Prasad; of the opposite party No. 1 is her adopted son and Nos. 2, 3 and 4 claim to be the Gotias or reversionary heirs of her father. In the year 1917 the opposite party joined in instituting a suit against the petitioner

“for the administration of the properties left by her father Sital Prasad by the appointment of a receiver,”

as stated in the application for revision. That suit was valued at Rs. 58,000 for the purpose of jurisdiction, but the plaint bore a court-fee of Rs. 10 only. The petitioner as defendant in that suit objected that an ad valorem court-fee ought to be paid by the plaintiff. On this objection the learned Subordinate Judge recorded an order on 24th April, 1918 in the following terms:

“In this case the plaintiff has paid court-fees of Rs. 10 only. The plaintiff wants appointment of a receiver during the lifetime of the female owner on the allegation that she is wasting the property. This is undoubtedly a prayer for consequential relief and ad valorem court-fees ought to have been paid. The plaintiff is therefore required to pay in the deficit court-fees on the value of the property in suit within ten days from this date, otherwise the plaint will be rejected”.

2. On 4th May, 1918 the plaintiffs-respondents applied for a review of that order. After hearing the pleaders for both parties, the learned Subordinate Judge passed an order on 7th May, 1918, granting the application for review, setting aside his order of 24th April, 1918 and directing that the case should proceed without payment of any additional court-fee. He based this order mainly on a decision to which his attention was drawn: Manmatha Nath Biswas v. Rohilli Moni Dasi(1), and held that as the claim for the appointment of a receiver could not be valued, Sch. 2, Article 17, Clause (vi) of the Court-fees Act, would govern the case. He pointed out that the plaintiffs did not want a declaration that the properties were being wasted nor did they want an injunction upon the defendant. The learned Subordinate Judge also frankly admitted that he would not have passed the order of the 24th April if his attention had been drawn to the decision in Manmatha Nath Biswas v. Rohilli Moni Dasi. He therefore felt he was “not justified in pressing for payment of the additional court-fees.” It is against this last order that the petitioner has moved this Court, and the only point taken by Mr. Hasan Imam on her behalf is that under Section 12 of the Court-fees Act (7 of 1870), the order of the 24th April was final as between the parties to the suit and could not be the subject of review.

3. A preliminary objection was taken on behalf of the respondents that the application to this Court for revision of the order complained of was incompetent, inasmuch as an appeal lay from that order under the Code of Civil Procedure, O. 43, R. 1(w). This objection however was sub-sequently withdrawn, as we intimated during the hearing that we were prepared to treat the application as an appeal for the limited purpose of deciding only whether the Subordinate Judge had jurisdiction to review his order of the 24th April. The application remains therefore before us as an application under Section 115 of the CPC. Section 12, Clause (1) of the Court-fees Act, lays down:

“Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint … shall be decided by the Court in which such plaint … is filed and such decision shall be final as between the parties to the suit.”

4. Clause (2) of that section enables a Court of appeal, reference or revision, before whom the suit comes, to levy an additional fee in the event of the question having been wrongly decided to the detriment of the revenue. It will be observed that the Court under Cl. (2) cannot reduce the fee if the decision of the lower Court was to the detriment of the subject and to the advantage of the revenue: Narayan Hadhavrao Naik v. Collector of Thana(2). The point for our determination really turns on the interpretation of the words in Cl. (1):

“Every question relating to valuation for the purpose of determining the amount of any fee chargeable;”.

for it is only to the decision of such a question that the legislature has given finality. The interpretation of these words has been the subject of numerous decisions of all the High Courts, except, so far as I know, our High Court. The matter has usually come before them by way of appeals from orders rejecting plaints passed under Section 54 of the CPC (Act 14 of 1882), or, since the Code of Civil Procedure of 1903, from similar orders, passed under O. 7, R. 11, Cls. (b) and (c). For the purposes of the matter we are now considering there is no practical difference between the provisions of the old and new Codes in this particular respect. It is to be observed that such orders were expressly included in the definition of a decree under S. 2 of the Code of 1882, even as they are now so included under S. 2, Cl. 2 of the Code of 1908. Now, under S. 540 of the Coda of 1882, even as under S. 96, Cl. (1), of the Code of 1908, such orders were and are appealable, as decrees save where otherwise expressly provided in the Code of Civil Procedure themselves, or by any other law for the time being in force.

5. There was under the old Code, and there is under the new Code, no such express saving provision, and the question therefore resolves itself, under either Code, into a question as to whether appeals from such orders are barred by Section 12, Clause (1) of the Court-fees Act. It may be taken as having been conceded before us that the right of appeal from an order rejecting a plaint under O. 7, R. 11, Cls. (b) or (c), is the touchstone whereby the finality, contemplated by Section 12 of the Court-fees Act, may be tested, and that the right of the Court to review its original order would a fortiori follow on the right of appeal from such order as a matter of course. No argument to the contrary has been advanced and no suggestion made; nor indeed in principle could any such argument be advanced, for, if a Court of appeal may correct an erroneous order rejecting a plaint despite the provisions of Section 12 of the Court-fees Act, it is obvious that the Court passing the order may for good cause review its own erroneous order, instead of driving the aggrieved plaintiff, to disobey that order, await the rejection of his plaint and then appeal against this rejection. Quite apart from principle however an order on review would, strictly speaking, be within the terms of Section 12, Clause (1) of the Court-fees Act, as a decision by the Court in which the plaint or appeal was filed; at any rate far more so than a decision by another Court on appeal; and it would, be equally so whether the order of demand bad fructified by non-compliance into an order of rejection or not. We are of opinion that there is nothing in the Code of Civil Procedure or in Section 12 of the Court-fees Act to debar a Court of first instance from reviewing for good and sufficient reason its decision on all questions relating to valuation for the purpose of determining the amount of fee chargeable on the plant. On the contrary, under the new Section 151 of the CPC of 1908, the Court has an inherent power to make such orders as may be necessary for the ends of justice in order to prevent the abuse of the process of the Court, and under S. 152 the Court has a right to correct arithmetical mistakes in orders generally, or errors arising therein from any accidental omission. To take an illustration suppose a Court has by an arithmetical miscalculation or other in advertence demanded an exorbitant court-fee from a plaintiff and passed an order on him to pay the deficiency on pain of his plaint being rejected. If that error is observed by the Court or brought to its notice after that order has been placed on the order sheet, can it be contended that the Court has not the power to correct its error and thereby prevent the abuse of the Court's process in illegally extorting a court-fee to which the revenue was not entitled under the law? I am decidedly of opinion that it has. If it did so, it would be thus reviewing or revising its own order, for there is not particular magic in the word “review.” To hold otherwise would be to hold that judicial extortion may be indulged in under legislative sanction. I emphatically decline to subscribe to such proposition.

6. I turn now to the judicial interpretation of the section by the Indian Courts. As far back as 1871 the Calcutta High Court had to consider a similar question which arose Under Article 11, Sch. B, to Act 26 of 1867 and held that an order passed under that article is not final so as to bar an appeal where the decision of the Munsif on the valuation took the case beyond his jurisdiction. The great inconvenience which would result from any other interpretation was well illustrated by Norman, J., in the course of his judgment: Collector of Sylhet v. Kalee Coomar Dutt(3). In 1873, the same Court held that though it was not open to the appellant under Section 12 of the Court-fees Act, to dispute the correctness of the Munsif's finding on the question of valuation there was nothing in that section to prevent him from appealing under the provisions of Section 36 of the then CPC. and from urging that the Munsif was wrong in holding that the case was not governed by the provisions of a different article of the Court-fees Act: Gunga Monee Chowdhrain v. Gopal Chunder Roy(4).

7. In 1877 the Bombay High Court took a precisely contrary view and held that the right of appeal to which the plaintiff might have been entitled under Sections 31 and 36 of the CPC (Act 8 of 1859), had been taken away by Section 12, Clause (1) of the Court-fees Act (7 of 1870); Narayan Madhavrao Naik v. Collector of Thana. In the same year the Allahabad High Court held that Section 12 of the Court-fees Act, does not prevent a Court of appeal from determining whether or not consequential relief is sought in a suit, so that it may determine under what class of cases the suit falls for the purposes of that Act. It held however that S. 12 prohibits appeals on questions relating to valuation for the purpose of determining the amount of fee. It pointed out that when a certain fee is fixed by the Act for all suits of a certain nature no question of valuation arises: Chunia v. Ram Dial(5). Three years later the Calcutta High Court definitely held in general terms that the provisions of the then Code of Civil Procedure (Act 8 of 1859 amended by Act 10 of 1877) removed the finality declared by Section 12 of the Court-fees Act, and allowed an appeal from an order rejecting a plaint as insufficiently stamped: Ajoodhya Pershad v. Gunga Pershad(6).

8. In 1881, the Madras High Court refused to give to the terms of S. 12 a larger interpretation than they fairly admit of, and held that they do not declare the decision of the Court mentioned in Cl. (1) to be final on all questions which may arise respecting the court-fee but only on every question relating to valuation for the purpose of determining the amount of fee. Valuation, the Court said, may be a mere arithmetical calculation or may involve the decision of a simple question of fact while on the other band apart from the valuation necessary to determine the fee, questions of much nicety may arise respecting the fee properly leviable. It pointed out that the amended Code of Civil Procedure (Act 10 of 1877) had apparently accepted the construction of the Court-fees Act adopted by the High Court of Bengal in Gunga Monee Chowdhrain v. Gopal Chunder Roy and Collector of Sylhet v. Kalee Cooumar Dutt and the High Court of the North-Western Provinces in Chunia v. Ram Dial since the decision in Narayan Madhavrao Naik v. Collector of Thana which was governed by the Code of Civil Procedure (8 of 1859): Annamalai Chetti v. Lt. Col. J.G Cloete(7). Then followed in 1882 the decision in Omrao Mirza v. Mary Jones(8), in which it was distinctly held that the definition of a decree in Section 2 of the CPC 1882, had altered the law laid down in Narayan Madhavrao Naik v. Collector of Thana, and that S. 12 applies merely to valuation when there is no question as to the article of the schedule of the Act with reference to which the valuation is to be made, and was not intended to apply to a case in which it was contended, not that the suit had been wrongly valued, but that the relief had been improperly estimated by putting it under a wrong article in the schedule of the Act. It is true the rule in that case was discharged on the ground that the proper course to adopt was to wait till the plaint was rejected under Section 54(a) of the CPC, and not to come up on revision against the demand of an extra sum. This however does not affect the question. The plaintiff in that case in compliance with that decision, waited till his plaint was rejected, appealed to the High Court and his appeal was allowed Omrao Mirza v. M. Jones(9).

9. The question there was whether the plaint was filed within Cl. (3) or Cl. (6), Article 17, Sch. 2 of the Court-fees Act, and the contention of the plaintiff-appellant was that the Subordinate Judge had misconceived the true nature of the suit. Two years later a Full Bench of the Bombay High Court held that an appeal lay against orders on the question whether or not any particular suit was one admitting of valuation by the Judge, but no appeal lay when once it was found that the valuation made by him was within his proper functions: in the latter case his decision and the several elements of it are conclusive as between all parties. An attempt was made to explain the decision in Narayan Madhavrao Naik v. Collector of Thana, but in my opinion without any great success. The Full Bench further expressed its opinion that a decision on a question of valuation was subject to revision by the High Court under Section 622 of the CPC, and Regn. 2, S. 5 of 1827 in a certain class of cases Vithal Krishan v. Balkrishna Janardan(10).

10. A Full Bench in the Allahabad High Court next considered the question in Muhammad Sadik v. Muhammad Jan(11) and held that the intention of the framers of the Code of Civil Procedure 1882 was that there should be an appeal in every case falling within S. 54 of that Code. The Full Bench thought that it was unnecessary to consider whether Section 12 of the Court-fees Act, could be reconciled with the provisions of the Code, as the Madras High Court had attempted to do in Annamalai Chetti v. Lt. Col. J.G Cloete, but intimated that they would have great difficulty in concluding that a Court can determine the amount without deciding the question as to the relief sought; and yet that the relief sought was not a question relating to the valuation for the determination of the fees chargeable. Another Full Bench of the same Court had to consider the question as to the finality of orders passed under Section 5 of the Court-fees Act, and for the purpose of analogy compared the provisions of S. 12 of that Act. Sir John Edge, C.J, who had been a party to the decision in Muhammad Sadik v. Muhammad Jan, in delivering the main judgment of the Court in the later case, explained that those authorities, which had held that the right of appeal lay, really decided only so much, viz., that a question as to the category of the relief sought is not

“a question relating to valuation for the purpose of determining the amount of any fee chargeable.”

11. He admitted that the decision in Muhammad Sadik v. Mohammad Jan to which he had been a party had gone too far in deciding that an appeal lay from a decision under Section 54 of the CPC, which was also a decision within the meaning of Section 12 of the Court-fees Act. The learned Chief Justice considered that so far, if at all, as Section 54 of the CPC, applied to decisions under Section 5 or Section 12 of the Court-fees Act, orders under Section 54 of the CPC, came within the exceptions contained in Ss. 540 and 584 of the then Code, i.e, appeals were excluded by Section 12 of the Court-fees Act, as being another law for the time being in force Balkaran Rai v. Gobind Nath Tiwari(12):

In the same year a Division Bench of the Madras High Court followed the Calcutta decision in Ajoodhya Pershad v. Gunga Pershad and held on second appeal that when it was not a mere question of amount or arithmetical calculation, a decision of the lower appellate Court may be revised by the High Court Kdnaran v. Komappan(13): The question again came before the Full Bench of the Allahabad High Court in Amjad Ali v. Muhammad Israil(14). The facts of the case are instructive; a plaint was presented in the Court of a Subordinate Judge on 16th November, 1893, the last day within the period of limitation. On that day the Court Munsarim reported that the court-fees paid were insufficient. The Subordinate Judge ordered the plaint to be returned and directed that it should be presented again within four days along with the deficient court-fee duty. As a matter of fact the plaint was not returned to the plaintiffs on 16th November; on the following day they appeared before the Subordinate Judge and put in a petition objecting to his order, but at the same time they lodged in Court the additional amount under protest.

12. On this petition the Court ordered the deficient court-fee to be paid, which was done, and the plaint was then admitted and registered. At the hearing of the suit the defendants contended that the plaint as presented on 16th November being insufficiently stamped was an invalid plaint, and that as the deficient duty was not paid till the following day the suit was barred by limitation. The plaintiffs replied that the court-fees paid on 16th November were sufficient, that the Court had acted erroneously in compelling them to pay a larger sum and that therefore the plaint, as presented on 16th November, was a valid plaint. A preliminary issue as to limitation was framed, and after hearing arguments the Subordinate Judge decided that the suit was not barred, as he now held that the stamp duty paid on 16th November was sufficient. The suit was ultimately dismissed on the merits. On an appeal to the District Judge by the plaintiffs, the defendants objected under Section 561 of the CPC, 1882, contending that the Subordinate Judge was wrong in holding that the suit was not time barred and that the plaint was properly stamped. The District Judge on these pleas held that the plaint was insufficiently stamped on 16th November and was therefore barred. On second appeal to the High Court the case was referred to a Full Bench and was argued on the effect of the words: ‘Such decision shall be final as between the parties to the suit.” The question was whether the first order of 16th November or the later order at the hearing was the “decision” contemplated by S. 12.

13. The Full Bench held that the later of the two orders must be considered to be the “decision” referred to in S. 12. The ratio decidendi apparently was that when the order of 16th November was passed, it could hardly be said that there were any parties or any suit, and that the words of S. 12, read in their natural and literal sense, are wholly inapplicable to a case in which a plaint had not been “filed,” as distinguished from “presented” and in which there was therefore no existing suit and no parties to such suit. The order of 16th November was in the learned Judges opinion merely an interlocutory order which the Court may vary as long as it has seisin of the case. In the case of Bankey Behari v. Ram Bahadur(15) such an order was revised by this Court, though the provisions of Section 12 of the Court-fees Act, were not considered. One of us was a party to that decision.

14. It should be mentioned that in the Allahabad case all questions of rejection of a plaint under Section 54 of the CPC (1882), were expressly excluded from the scope of the decision. It will be observed that the facts in that case were very similar to the facts before us inasmuch as in the case before us the plaintiff applied, within the ten days allowed by the Court in its first order for the deposit of the deficit, to review that order; and at the subsequent hearing, the Court did review that order and came to the decision which we are now asked to revise. In Dadoa Bhau Kittur v. Nagesh Ramchandra(16) the question was whether the suit fell for purposes of court-fees under Cl. (x) or Cl. (ix) Section 7 of the Court-fees Act. The Court of first instance held that it fell under, the former clause, demanded an excess court-fee and on the plaintiff failing to comply with the demand, dismissed the suit. The Court of first appeal held that the question was one of valuation and the appeal was therefore incompetent. The Bombay High Court on second appeal held that the order was clearly appealable as there was no question of valuation; and the only valuation made, that is the valuation of the consideration was admitted. In other words it was a question of the application, of the law rather than a question of valuation.

15. Coming to more modern decisions, the Calcutta High Court in Studd v. Mati Mahto(17) approved of the earlier decisions in favour of a right of appeal and held that S. 12 was no bar to the appeal, as the question to be decided was the class of the suit in order to ascertain in what schedule of the Act it must be taken to fall for the purpose of fixing the court-fee. In Prokash Chandra v. Raja Bisumbhar Nath(18) the Calcutta High Court carried the same principle to its extreme extent. The plaintiff had valued the relief at Rs. 2,100, the defendant had valued it at Rs. 50,000, the Subordinate Judge decided that the market value of the subject-matter of the suit was at least Rs. 24,000, and demanded institution fees on that value, and on noncompliance, dismissed the suit. The Court of first appeal held that the valuation arrived at was excessive, fixed the valuation at Rs. 10,120, and directed that institution fees on that value should be accepted. On appeal by the defendant, the High Court held that Section 12 of the Court-fees Act, was passed mainly for fiscal purposes and prevented the parties from contesting the decision of the first Court so far as that decision was arrived at for those purposes only; but that when the result of the decision on valuation was to deprive the plaintiff of the right which he sought to enforce, thereby affecting the merits of the plaintiff's suit, the decision was appealable.

16. In Peari Shah v. Surja Mal(19) the basis of the decision was that the question in that case was not a question relating to valuation for determining the fees chargeable but relating essentially to the jurisdiction of the Subordinate Judge to entertain the suit. In this case, it may be observed that the jurisdiction, of the Subordinate Judge depended on the valuation placed by him on the right of easement, yet the High Court held the order was not final within the meaning of S. 12. Sundar Mal Marwari v. J.C Murray(20) is direct authority for the proposition that where the question is one as to class and not merely of valuation, not only does the right of appeal lie, but the High Court is competent to exercise its revisional jurisdiction under Section 115 of the CPC and also to revise the proceedings of the lower Court under Section 15 of the Charter Act.

17. The decision of the Madras High Court in Tekana Kavandan v. Aligiri Kavandan(21) apparently goes to the other extreme, but it is not a considered decision and none of the earlier cases was referred to. The Punjab Chief Court in Mt. Sada Kaur v. Buta Singh(22) declined to interfere in revision with an order rejecting a plaint, on the ground that an appeal from the order was competent.

18. The correct principles, in my opinion, deducible from the above authorities as well as from a careful consideration of the provisions of Code of Civil Procedure and of the Court Pees Act are: 1. An order rejecting a plaint under O. 7, R. 11 of the CPC is not appealable when such order is based on a question of valuation pure and simple. 2. When the order necessarily involves a decision of the category or class under which a suit falls, even though it incidentally decides a question of valuation, the order is appealable, 3. In cases falling under (1) where the order involves a question of jurisdiction, the High Court may interfere either under Section 115 of the CPC or under Section 107 of the Government of India Act,

“by virtue of the residue of jurisdiction, which the Court will always exercise wherever it appears that there has been something in the nature of a denial of the right of fair trial”

19. Per Mulliek, J., in Braja Bhushan Trigunait v. Sris Chandra Tewari(23).

20. Before or after an order of demand fructifies by non-compliance into a recorded order of rejection, the Court contemplated in Section 12 of the Court Tees Act may for good and sufficient reasons review its own order of demand, on application by the plaintiff, or revise that order of its own motion.

21. I am fortified in these conclusions by the fact that though the Court Fees Act, Section 12 of the dates from 1870 of CPC. was remodelled in 1882 and again in 1908, and the Legislature could not have been in ignorance of the judicial interpretations placed on S. 12 in the various decisions referred to above of all the High Courts; nevertheless, the Legislature did not think fit, either in 1882 or at any rate in 1908, to insert a simple provision in the Code of Civil Procedure declaring a finality other than that declared by judicial interpretation between 1870 and 1908 The Court Pees Act is essentially a fiscal enactment. Its primary object is to provide for and protect the revenue and not to coerce the subject; and it is for this reason that the Legislature has intentionally so framed S. 12 and the relevant provisions of Code of Civil Procedure as to leave the question elastic. In any event, I am of opinion that, according to the well-recognized practice of this Court, we should follow the firmly established “cursus curiæ” of the Calcutta High Court and I would accordingly dismiss this application with costs. We express no opinion as to the merits of the order respecting the Court-fee, nor are we in a position to do so as the pleadings are not before us.

22. Atkinson, J.:— I agree.

By the Court.— This application is dismissed with costs, hearing fee four gold mohurs.

V.S/R.K

23. Application dismissed.