1. This second appeal arises out of a suit for partition filed by the appellant claiming a third share in the family properties. The suit was at first filed against two defendants, first defendant being the father and the second defendant being the brother of the plaintiff. The third defendant was later on added on the ground that that he was an alienee of item 6 of the plaint properties from the father, the first defendant. The Subordinate Judge then raised an additional issue whether the plaintiff can claim any relief in respect of item 6 of A schedule without having the sale set aside and whether the court-fee paid is correct. He held that the sale ought to be set aside and that court-fee should be paid on the value of item 6. This item was valued in the plaint at Rs. 1,012 and therefore the Subordinate Judge called upon the plaintiff to pay an additional court-fee of Rs. 119-15-0. Time was given till the 23rd December, 1943, for payment. Plaintiff took time for payment till the 30th December. The Subordinate Judge did not attend Court on that day and the case was posted to the 10th January, 1944. On that day instead of paying the deficit court-fee, the plaintiff filed a memorandum giving up the third defendant and the sixth item of the A schedule property and said that he would go on with the suit as regards the other items which were admittedly in the possession of defendants 1 and 2 and as to which there was no trouble about the valuation. The Subordinate Judge held that the plaintiff was not entitled to relinquish any portion of his claim without filing a petition for amendment of the plaint and that as no such petition was filed he had under Order 7, Rule 11, Civil Procedure Code, no option but to reject the plaint. He therefore dismissed the entire suit. On appeal the District Judge has confirmed the decree of the trial Court agreeing that :
When the withdrawal of a part of the claim is not accompanied by a petition to amend the plaint, the plaint remains at large as a document on which the required court-fee has still to be paid.
2. The District Judge recognised that under Order 23, Rule 1, the plaintiff may at any stage withdraw his suit or abandon part of his claim and that he can do so without the leave of the Court, but he held agreeing with the trial Court that until the plaint is amended by a petition filed for that purpose, the plaint remains at large as a document on which the required court-fee has still to be paid and that Order 7, Rule 11 compels the Court to reject the entire plaint. I am unable to agree. Under Order 23, Rule 1, Civil Procedure Code At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or-abandon part of his claim,
3. No permission of the Court is necessary for this purpose, He has only to intimate to the Court that he withdraws the suit against all or any of the defendants or that he abandons a part of his claim. The plaintiff intimated to the Court that he withdrew the suit against the third defendant and that he abandoned his claim to item 6 of the plaint A schedule. It is difficult to see what else is necessary to take item 6 and the third defendant out of the plaint. It is too much of a techni-cality to say that it must be in the form of an application for amendment of the plaint. No authority has been cited in the judgments of either of the lower Courts in support of the position that an application for amendment must first be made before the plaint can be treated as restricted to the other defendants and the other properties. The trial Judge relied upon the decision in Midnapore Zamindari Co., Ltd. v. Secretary of State for India (1916) I.L.R. 44 Cal. 352, in support of his conclusion. There the plaint was rejected by the trial Court when after being required to supply the deficit court-fee, the plaintiff failed to do so. An appeal was taken to the High Court and it was first urged that the valuation as given in the plaint was correct and that no further court-fee could be demanded. The Judges seem to have expressed the opinion during the course of the arguments that the position taken up was Untenable. Then in the course of the arguments the appellant's counsel prayed for permission to have a particular prayer struck off and for restoration of the suit. It is in respect of that prayer that additional court-fee was required. The learned Judges first dealt with the question whether the plaint as it stood required the additional court-fee and they decided that it did. Then they dealt with the request made by the appellant's counsel to strike off the particular prayer which led to the trouble. They pointed out that at the stage when the matter came before them, there was no longer any plaint and that it had already been dismissed by the trial Court. It is under those circumstances that the learned Judges refused to allow the appellant's request to strike out the particular paragraph. They first pointed out that the trial Judge rightly came to the conclusion that the plaint was written on paper Insufficiently stamped and that the plaintiff on being required by the Court to supply the requisite stamp paper within the time fixed by the Court, failed to do so. They pointed out that, therefore, the trial Judge had no other alternative except to reject the plaint, in accordance with the terms of the rule. In fact they said that the trial Judge had no other alternative except to reject the plaint. Then dealing with the request for striking out the prayer at the stage of the appeal, Sanderson, C.J., said this:
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 Order 7, Rule 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.
4. These observations no doubt seem to be in favour of the respondents, but the decision must be confined to the facts of the case which were that at the stage when the request was made to the High Court, the plaint had alrady been rejected. This is how this decision has been viewed and applied by the same High Court in Mt. Saiyadunnessa v. Gaibandha Loan Co. (1916) I.L.R. 44 Cal. 352 There the trial Court held that a further court-fee ought to be paid and gave some time. On the adjourned date the plaintiff put in a petition to reduce the amount claimed so as to bring the claim within the court-fee paid. The application for amendment was rejected and the plaint also was rejected as being insufficiently stamped. The matter was taken to the High Court and it was held that inasmuch as the plaintiff had applied for amendment of the plaint by reducing the claim for compensation before the expiry of the time given to him for paying the deficit court-fee, or before any order rejecting the plaint was passed, the Court had power to consider the application on merits and allow the abandonment of the claim as prayed for and that the Court cannot be said to have lost this power of allowing amendment by reason of the fact that the plaintiff was allowed time to make good the deficit court-fees. The decision in Midnapore Zamindari Co., Ltd. v. Secretary of State for India (1916) I.L.R. 44 Cal. 352 was pressed upon their attention. In dealing with that decision the learned Judges said this:
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 Midnapore Zamindari Co., Ltd. v. Secretary of State for India (1916) I.L.R. 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 Order 23, Rule 1, Civil Procedure Code. Mr. Gupta for the respondent-defendant 1, on the other hand, has contended that the decision in Midnapore Zamindari Co., Ltd. v. Secretary of State for India (1916) I.L.R. 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 Bengal Tenancy Act, but the plaintiffs prayed for the declaration (a) that they were occupancy raiyats, and (b) that the entry in the Record of Rights, 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 Order 7, Rule 11, Civil Procedure Code. 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 Order 7, Rule 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.
5. After quoting the passage from the judgment of Sanderson, C.J., already set out, the learned Judge (S.K. Ghose, J.) proceeded thus:
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 Order 7, Rule 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 Order 6, Rule 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 us that the present case may be distinguished from those in Midnapore Zamindari Co., Ltd. v. Secretary of State for India (1916) I.L.R. 44 Cal. 352.
6. In Mahant Marsidasji v. Bai Jamna (1916) I.L.R. 44 Cal. 352, a Bench of the Bombay High Court dissented from the view laid down in the Midnapore Zamindari case2. Dealing with a similar case, after setting out Order 7, Rule 11, the learned Judges said this:
No doubt the rule uses the words ' shall reject' which are mandatory words. But prima facie the rule would seem to be mandatory only rebus sic stantibus, that is to say when the Court has to deal simply with the position referred to in the rule, and would not preclude an amendment of the plaint which under Order 6, Rule 17, may be made at any stage of the proceedings. It might obviously lead to great hardship if a plaintiff were unable to pay the enhanced fees ordered, and if there were no alternative but the rejection of the plaint. The learned Advocate-General suggested that in that case he might apply to continue the suit in forma pauperis. But if the rule is to be construed as strictly as the learned Counsel contends that would not be a compliance with it. It would be as much an avoidance of payment of the fees as an amendment of the plaint. We were referred to Midnapore Zamindari Co., Ltd. v. Secretary of State for India (1916) I.L.R. 44 Cal. 352 which does no doubt support the argument which has been put forward. With all deference however to the learned Judges, who decided that case, we think that it takes too technical a view of the rule.
7. In Neelachalam v. Narasinga Das A.I.R. 1931 Mad. 716, Jackson, J., had to deal with a somewhat similar situation. There the Court ordered payment of a further court-fee of Rs. 57-15-0 and returned the plaint for re-presentation with the deficit court-fee. Instead of paying the required court-fee the plaint was re-presented with a court-fee of Rs. 37 relinquishing a part of the claim so as to bring it within the court-fee that he paid, namely, Rs. 37. The question was whether he could do so, He did not apply for amendment of the plaint and did not obtain the permission of the Court to do so. When the plaint was returned he himself reduced the claim so as to bring it within the court-fee of Rs. 37 which he paid. The lower Court rejected the plaint and the matter was brought up before this Court. Jackson, J., said this:
The view of the learned Judge is that the plaintiff ought not to have amended the plaint without permission; but it is difficult to see why permission is required. A plaintiff may relinquish any portion of his claim to bring it within the Court's jurisdiction (Order 2, Rule 2) and it seems equally open to him to relinquish a portion in order to bring it within a certain court-fees. As the Court returned the plaint to him the plaintiff did it without consulting the Court. If the Court had kept the plaint presumably he would have asked to have the plaint back so as to strike out the portion and there is no reason why the Court should have objected-even if it was entitled to object, which seems very doubtful. In Midnapore Zamindari Co., Ltd. v. Secretary of State for India (1916) I.L.R. 44 Cal. 352 upon which the learned Judge relies the plaintiff entirely failed to comply with the Court's order under Order 7, Rule 11, and then afterwards sought to remedy matters by striking out a plea. As though in this case after the expiry of the allotted time the plaintiff had attempted to get over the difficulty by striking out a portion of his claim. That is entirely a different set of circumstances.
8. He relied upon a decision of the Allahabad High Court in Ram Prasad v. Bhiman (1904) I.L.R. 27 All. 151. This decision is also to the effect that' under similar circumstances the plaintiff may abandon a portion of the claim without running the risk of the suit being dismissed. There the suit was for pre-emption of a sale under which five parcels of property passed. One of these parcels was one quarter of a well. Before the trial Court an objection was raised that the property sought to be pre-empted had been improperly valued, and eventually the well, which for the purpose of preemption had been valued at Rs. 100 was held to be worth Rs. 150. Thereupon the Subordinate Judge called upon the plaintiff to pay the deficit court-fee on the extra Rs. 50. This the plaintiffs refused to do, and abandoned their claim to the well. Then the Subordinate Judge dismissed the entire suit. The District Judge on appeal reversed the decree of the Subordinate Judge and remanded the suit. The matter came before the High Court. After stating the facts the learned Judges said this:
It has been contended that the order of the Munsiff (apparently Subordinate Judge) was right and ought not to have been disturbed. Not without a good deal of hesitation we have come to the conclusion that the order of the District Judge is right. It seems to us that when a plaintiff in the initial stage of the litigation abandons a portion of his claim, he is not compellable to pay court-fees upon that claim under the penalty of having the whole of his suit dismissed. The matter is, we admit, one which is capable of argument on both sides, and it is with some hesitation that we have come to this decision.
9. Though the learned Judges felt some hesitation before coming to the conclusion, Jackson, J., adopted the decision as correct. This position has been reiterated in a decision of the Allahabad High Court in Sah Ramchand v. Panndlal A.I.R. 1929 All. 308. The learned Judges said that it was always open to the plaintiff to reduce his claim and effect a saving of the Court-fee. There it was a case of an appeal. The plaintiff appealed valuing his appeal at Rs. 3,203-10-0. The District Judge ruled that the Court fee payable on appeal should be calculated on Rs. 27,000, which was held to be the value of the appeal before him. Three weeks' time was allowed to the plaintiff to make good the deficiency. Before the expiry of the period, an application was presented on behalf of the plaintiff-appellant which declared that out of Rs. 27,000 found to be due on the mortgage, the plaintiff withdrew his contest to the extent of Rs. 12,894, leaving Rs. 14,106 to which the appeal was confined. The Court fee on this sum amounted to Rs. 610 of which Rs. 165 had already been paid and Court-fees of the value of the remaining Rs. 445 were put in. Then the application said:
that the valuation of the appeal is fixed at Rs. 14,106, and notice be now issued to the opposite party.
10. The District Judge dismissed the appeal and the matter was taken up in second appeal. The learned Judge said:
We are unable to agree with the learned District Judge that the plaintiff's application dated 9th February, 1926, was one praying for reconsideration of the order, dated 7th January, 1926. In substance it was one seeking to amend the valuation of appeal by foregoing part of the claim made in the original memorandum of appeal and by confining it to a lesser amount, viz., Rs. 14,106. It is always open to a plaintiff to reduce his claim and effect a saving of Court-fee if otherwise permissible. In so far as he submits to the decree appealed against, it becomes final, and the appeal is limited to the amount in contest on which alone Court-fee need be paid. The prayer in the concluding part of the application dated 9th February, 1926 : 'that the valuation of the appeal be fixed at Rs. 14,106 ' clearly shows what the object of the plaintiff-appellant was. He would have been well-advised if consequential amendments in the memorandum of appeal were,prayed for, but the substance of what he desired is clearly borne out by the application.
11. I may here refer to an earlier decision of this Court in Karumbar Pandarapandaram v. Audimula Ponnapandaram (1909) I.L.R. 33 Mad. 262 There a plaintiff to whom a plaint was returned for properly valuing the properties claimed therein, altered the valuation as directed therein and then struck out some of the properties to bring the suit within the jurist diction of the Court. Abdur Rahim, J., held that that there was nothing illegal in the amendment and (hat it was competent to the Court to accept such amended plaint. There again it is to be observed that no formal application for amendment was filed and that no order was obtained from the Court allowing the amendment. The plaint was returned. The District Munsiff found that the subject matter of dispute was under-valued and that if properly valued it would exceed the pecuniary jurisdiction of his Court. He therefore returned the plaint for presentation to the proper Court after correcting the valuation in accordance with his finding. The plaintiff amended the plaint by correcting the valuation and also struck off some of the properties from the plaint so as to bring the rest of the claim within the jurisdiction of the District Munsiff. He then represented the plaint in the same Court and put in a petition saying that he had relinquished his claim to the properties which he had struck off. The District Munsiff admitted the plaint and the question was whether he had the power to do so. The learned Judge held that the Court was entitled to admit the plaint. The judgment of Abdur Rahim, J., was confirmed in L.P.A. No. 120 of 1909. Referring to the decision in Neelachalam v. Narasinga Das A.I.R. 1931 Mad. 716, the District Judge says this :
What the decision lays down is that it is open to a plaintiff to relinquish a portion of the claim to bring it within a certain Court fee, but he must set his plaint and fee right within the period prescribed by the Court. The latter direction has admittedly not been complied with in this case.
12. It is difficult to see what this means. The plaintiff filed a memorandum stating that he gave up item 6 and the third defendant. That is certainly a relinquishment of a part of the claim so as to bring it within the Court-fee paid. It is not necessary to file an amendment petition. As stated by the Judges of the Allahabad High Court in Sah Ramchand v. Pannalal A.I.R. 1929 All. 308, it would have been better if an application for amendment had been filed, but as they said we must look to the substance of what was done and there is no doubt whatever that what the plaintiff asked was for an amendment of the plaint. But even otherwise I am of opinion that there is no necessity to formally apply for amendment of the plaint. A plaintiff has always a right to abandon a part of his claim and for abandonment it is not necessary to file an application for an amendment of the plaint. If he abandons a part of the claim, he has only to intimate the fact to the Court and the Court has only to note it on the plaint and there it ends.
13. In the result, this second appeal is allowed, the decrees of the lower Courts are set aside and the suit remanded to the trial Court for disposal according to law against defendants 1 and 2 and against items other than item 6. The Court-fees paid on the memoranda of appeal here and in the lower appellate Court will be refunded. The rest of costs will abide and be provided for in the revised decree of the trial Court. this Court is indebted to Mr. P. Suryanarayana who argued the case for the respondents at my instance, they being unrepresented. No leave.