Jwala Prasad, J.:— This is an application in revision. The plaintiffs are the petitioners before us. They have instituted a suit in the Court of the Second Subordinate Judge of Gaya, for recovery of possession of the estate of one Charanjivi Lal upon the death of his widow Musammat Kavilass Kuer who died on the 14th March, 1922, on the ground that they are the nearest reversionary heirs of Charanjivi Lal. They allege in the plaint that Charanjivi Lall died about 20 years ago, and his widow Musammat Kavalasi Kuer succeeded him and came into possession of his property. She died on the 14th March, 1922, leaving her surviving the plaintiffs Nos. 2 to 6 who are the nearest reversioners and as such they wanted to take possession of the property in dispute, but the defendants interfered with and themselves took possession of the property producing a deed of gift, dated the 10th February, 1922, said to have been executed by Musammat Kavalasi Kuer in their favour. The plaintiff deny the genuineness and validity of the deed of gift set up by the defendants and impugn it as being null, void and inoperative as against the plaintiffs' right as the next reversioners. They further say that on a perusal of the deed of gift it appears that the defendants have gob false statements as to their being sapinda gotias and reversionary heirs of Gharanjivi Lal, inserted in the deed of gift, whereas the defendants have no concern with Charanjivi Lal's brahch, nor are they gotias. Upon these allegations the plaintiffs claim the following relief:
“That on adjudication of the title of the plaintiffs Nos. 1 to 6 to succession and of plaintiffs Nos. 7 to 9 by virtue of their purchase under the deed of sale, dated 26th June, 1922, executed by the plaintiffs Nos. 1 to 6 in their favour, the plaintiffs should be given seer possession of the disputed property by ousting the defendants”.
2. They also claim mesne profits. The cause of action is said to have arisen on the 14th March, 1922, the date of the death of the Musammat.
3. The plaintiffs valued the suit at Rs. 5,200 for the purpose of jurisdiction and paid Court-fee on ten times the Government revenue under section 7, clause (5) of the Court Fees Act. On the 20th July, 1922, the Subordinate Judge passed the following order:—
“The Court-fee paid under Article 7, cl. (5) is insufficient. The plaintiffs should file ad valorem Court-fee within a week”.
4. On the 22nd July, 1922, the plaintiffs paid the additional Court-fee of Rs. 273-12-0 making a total of Rs. 285-0-0. This was reported to be sufficient, and the plaint was registered on that very day.
5. On the 30th October, 1922, the defendants filed their written statement wherein inter alia they pleaded that the property was under-valued and the Court-fee paid was Insufficient.
6. On the 8th November, 1922, amongst others, the following issues were framed:—
“3. Is the suit under-valued and the Court-fee paid insufficiently?
“4. Are the plaintiffs 1 to 6 the nearest reversioners of Charanjivi Lal?
“6. Is the deed of gift, dated 10th February, 1922, alleged to have been executed by Musammat Kavilasi Suer a genuine and valid document and binding upon the plaintiffs?
“7. Are the plaintiffs entitled to recover possession of the properties in suit? If so, with what amount of mesne profits if any?”
7. On the 3rd April, 1923, under orders of the District Judge the suit was transferred to the file of the Additional Subordinate Judge for disposal.
8. On the 23rd April, 1923, the issue as to Court-fee was tried in the first instance, and upon the evidence adduced by the parties the Court assessed the value of the properties at Rs. 19,060 and fixing the value of the suit at that sum ordered the plaintiffs to pay the deficit Court-fee within three weeks.
9. On the 3rd of May 1923, the petitioners applied to the Court below for review of this order and for recalling the same under Order 47, rule 1 read with section 151 of the CPC. The ground upon which the review was sought was that the plaintiffs' suit was only for recovery of possession and as such the Court-fee leviable was under section 7, clause (v)(a) of the Court Fees Act upon ten times the Government revenue, and not upon the value of the properties under section 7, clause (iv)(c) and in support of their contention they relied upon the Special Bench case of Ram Sumran Prasad v. Gobind Das, 3 Patna Law Times 704, which they cited in their petition of review.
10. On the 5th of May 1923, after hearing the parties the Court rejected the petition. Aggrieved by this order the plaintiffs have come to this Court and pray that the same be set aside.
11. It is urged as a preliminary objection on behalf of the defendant opposite party that the order of the 23rd April is not capable of revision, inasmuch as it is an interlocutory order only and the plaintiffs ought to have waited until their plaintiff was rejected under Order 17, rule 11 of the. Code and then appealed against the final order rejecting the plaint, which comes within the definition of “decree” in section 2, clause (2) of the Code. In support of this contention reference has been made to the following cases:—
12. Sheopal Singh v. Badri Singh (1), J.C Guise v. Jaisraj (2), Gopal Das v. Alaf Khan (3), Chattar Singh v. Lakhraj Singh (4), Farid Ahmad v. Dulari Bibi, (5), H.H The Nizam of Hyderabad, in re (6), Mt. Haramoozi v. Mt. Ayesha (7), Chandi Rav v. Kripal Ray (8).
13. These cases do not relate to Court-fee matter and immediate remedy by way of appeal was available to the injured party, ??? to whether an order demanding additional Court-fee is capable of revision there has been divergence of opinion. On the one hand it has been held that an order demanding additional Court-fee is not capable of revision on the ground that the plaintiff could make default in the payment and have his plaint rejected and thus be able to question the order in appeal vide Gobindu Das Nath v. Nitya Kali Dasi (9), Chuni Lal v. Poshan Lal (10), Lachmibati Kumari v. Nandi Kumar Singh (11) and Bhubneshwari Prasad v. Mohan Lal (12). A contrary view is taken in the cases of Banks Behari v. Ram Bahadur (13) and Nauratan Lal v. Wilford Joseph Stephenson (14). In these cases it was held that the High Court can interfere at that stage of the case regarding the erroneous finding as to the Court-fee payable and thus save the parties from litigation, unnecessary expanse and undue delay. 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 CPC read with section 15 of the Charter Act (Section 107 of the Government of India Act). These are the tests laid down on a review of authorities both English and Indian in the case of Amjad Ali v. Ali Hussain Johar (15) as also in the case of Chandramani Koer v. Basdeo Narain Singh (16) (Manuk, J.) and would seem to have been now generally accepted.
14. The question whether an order directing additional court-fee to be paid satisfies the aforesaid tests depends upon the circumstances of each case. If it is an order merely assessing valuation of the property and the only question involved is as to the amount upon which the Court-fee has to be paid, the decision of the Court of First Instance would appear to be final under section 12 of the Court Pees Act. That section has been enacted in the interest of revenue and is final so far as that Court is concerned. There will be no appeal or revision from that order. But the question may under certain circumstances be raised in an appeal from the final decree made in the suit. Where, however, the question is, under what provision of the Court Pees Act the relief sought for in the plaint comes or under which category the suit falls, the decision of the First Court is not final—vide Dada Bhau Kittur v. Nagesh Ramchandra (17), H.C Studd v. Mati Mahto (18), Kanaran v. Komappa (19), Chunia v. Ramadial (20) and other cases cited in Mr. Agarwala's Vade-mecum, Volume I, Edition 1917, pages 38 and 39, and where it involves the jurisdiction of the Court to try the suit the decision involves a question of jurisdiction and a wrong decision on the point would amount to an assumption of the jurisdiction not vested in law, or a failure to exercise the jurisdiction vested in law. If the question of jurisdiction is thus involved it will be a fit case for revision in order to declare that the Court ought or ought not to exercise the jurisdiction where it assumed the jurisdiction not vested in law or where it refused to exercise the jurisdiction, as the case may be, on account of its-wrong decision on the point. True, there is an appeal from the order rejecting the plaint upon failure of the plaintiff to pay the additional Court-fee, but that will be a subsequent event and will give rise to a separate cause of action. There is no appeal or any other remedy from the order itself demanding the additional Court-fee and the payment of improper Court-fee may be an irremediable injury and sometimes the plaintiff might not be able to pay the large sum demanded, as when a suit could properly be instituted on a court-fee of Rs. 15, and ad-valorem court-fee of many thousand rupees is demanded. Suppose the plaintiff pays the improper Court-fee demanded and the suit is ultimately decreed in his favour. The defendant does not appeal from the decree, and the plaintiff need not appeal. The wrong decision upon the Court-fee which has caused monetary loss to the plaintiff remains unredressed. The plaintiff will in such a case have no remedy to redress himself of the wrong and to have refund of the improper Court-fee paid by him. Therefore, in my view, it is wrong to say that the plaintiff ought to have waited till his plaint is dismissed and then pay another Court-fee for lodging an appeal against the final decree and thus ultimately get a redress which in many instances may not be sufficient. Again, an improper order demanding unjustifiable court-fee amounts to telling the plaintiff that the Court will not proceed with the trial of the suit on merits although the plaintiff has, in fact, paid the Court-fee.
15. This will be a refusal to exercise jurisdiction which upon the sufficiently stamped plaint the Court was bound to exercise. Thus, an order demanding an improper court-fee involving jurisdiction of the Court to try or not to try the suit though an interlocutory order fulfils the tests referred to above and will, in my opinion, attract the revisional jurisdiction of the Court under section 115 of the CPC and section 107 of the Government of India Act. To deny the power of revision in the High Court in such cases would be to allow the Subordinate Courts to pass whimsical orders and thereby refuse to try the suit and exercise jurisdiction and there might be no remedy available to the plaintiff as was pointed by their Lordships of the Judicial Committee in the case of Balkrishna Udayar v. Vasudeva Aiyar (21) though in a case of different nature. As to whether interlocutory orders in such matters decide a case under section 115 of the Code, their Lordships in that very case licint out that the word “case” is not defined and in their opinion it cannot be confined to a litigation in which there is a plaintiff who seeks to pray for a relief or damages or otherwise, against a defendant who is before the Court. Therefore the decision of matters relating to Court fees will be decisions of a case within the meaning of the word in section 115 of the Code.
16. In Peari Sha v. Surajmal Marwari (22) it was held that the determination of the question under what provision or section of the Court Fees Act the fee is chargeable may essentially relate to the jurisdiction of the Court to entertain the suit, and in Sundermal Marwari v. J.C Murray (23), it was observed that such a question as to class and not merely valuation of a suit may give rise not only to a right of appeal but of revision under section 115 of the CPC and section 15 of the Charter Act.
17. It is then said on behalf of the opposite party that the question as to Court-fee was one of the issues in the case and the other issues have not yet been determined, and a revision of the decision upon that issue is not permissible as it would amount to a decision of the case piecemeal. It is true that a case should not be tried issue by issue and that the parties should not come to this Court until all the issues are determined and the case finally disposed of. This is upon the ground of convenience and does not bar the revisional jurisdiction of this Court when the determination of one of the issues in the case goes to the root of the jurisdiction of the trial Court to determine the remaining issue. The issue as to Court-fee is a preliminary issue and unlike other issues in bar, such as issues of res judicata and limitation, does not immediately put an end to the suit. The Court has to determine whether sufficient Court-fee has been paid before it entertains a suit or receives a plaint, under section 4 of the Court Fees Act. Therefore unless proper Court-fee is paid the suit will not be deemed to have been at all instituted. Order 7, rule 11 therefore empowers the Court to reject a plaint where it finds that the relief is undervalued or the plaint is insufficiently stamped and the plaintiff on being called upon to make good the deficiency fails to do so. This the Court does either when the plaint is filed and the defendant has not appeared or after the defendant raises an issue as to the insufficiency of the Court-fee. The moment the Court determines the issue as to court-fee against the plaintiff it withholds its hands and considers the plaint as not having been properly filed at ???. No doubt, the Court has a right to determine a issue rightly or wrongly and a wrong decision in itself will not attract the revisional jurisdiction of this Court—vide Raja Amir Hassan Khan v. Sheo Baksh Singh (24) and Shew Prosad Bungshidhur v. Ram Chunder Haribux (25). But, if on account of its wrong decision the Court refused to exercise a jurisdiction vested in law or exercises the jurisdiction not vested in law, the revisional jurisdiction of the High Court will come in. Thus, if the Court wrongly decides the issue as to Court-fee holding that the suit comes under a particular clause of the Court fees Act and asks the plaintiff to pay additional Court-fee before his suit can be entertained and the real issues can be tried, the Court refused to try the case and exercise its jurisdiction unless the proper Court-fee is paid; such an order will be capable of revision by this Court. Therefore the contention of the learned Vakil for the opposite party is overruled.
18. Nest it is urged on behalf of the defendants opposite party that the order of the 23rd April, 1923, of the Court below was not capable of review so long as the order of the 20th July whereby the Court held that the Court-fee paid under section 7, clause (v) was insufficient and directed the plaintiffs to file ad valorem Court-fee which the plaintiffs did file, is set aside. This is the view taken by the learned Subordinare Judge, expressed as follows:—
“It is to be seen that the order of the 20th July has not been reviewed and there is no prayer for sobbing aside that order. So long as that order remains, the order of 23rd April stands correct and the latter order is not by itself wrong, for it simply calls on the plaintiffs for a farther compliance of the previous 11 order which he has once partially 41 complied with. It is boo late at this stage to say that order was wrong”.
19. The plaintiffs had paid Court-fee originally under section 7, clause (v). The fact that they paid a small sum demanded by the Court on the 20th July does not preclude them from disputing the decision of the Court passed on the 23rd April demanding a very high sum on the ground that ad valorem Court-fee was payable under section 7, clause (iv) of the Act. With this view they asked the Court to review the order of the 23rd April asking them to pay additional Court-fee. The plaintiff's case now is that their original view of the clause under which Court-fee was leviable was correct and that the order of the Court demanding ad valorem Court-fee passed on the 20th July, 1922, is not correct though the plaintiffs did not object to the small additional Court-fee then demanded. Therefore, in asking the Court to review the order of the 23rd April, 1923, the plaintiff virtually asked the Court for a decision that the Court-fee payable by them should be under clause (v) and not under clause (iv) of section 7 of the Act. If the Court had granted the review asked and withdrawn its order of the 23rd April, the object of the plaintiffs would have been served. Thus the view taken by the Court below that the plaintiffs cannot get the order of the 23rd April, 1923, reviewed so long as the order of the 20th, July, 1922, stands, does not seem to be sound; nor were the plaintiffs too late to ask for a review of the order. There is no estoppel in a mother of this kind and the fact that the plaintiffs paid without demur the small ad valorem Court-fee in pursuance of the order of the 20th July, 1922 does not debar them from questioning the validity or illegality of the Court demanding ad valorem Court-fee when subsequently the Court demanded a much larger fee. A fresh cause accrued to the plaintiffs on the 23rd April, 1923 when additional Court-fee was demanded and they were well within their rights to urge that ad valorem Court-fee should not be levied. There being no appeal from an order of the Court fixing the valuation or demanding additional Court-fee, the Court had ample power to review its decision for good and sufficient reason. Apart from Order 47, rule 1, the Court has inherent power under the new section 151 of the CPC of 1908 to make such orders as may be necessary for the ends of justice and thus to review its wrong orders or decisions passed previously. In the case of Amjad Ali v. Mahommad Israil (26) a Full Bench of the Allahabad High Court upheld the order of the Court of first instance reviewing its former order demanding additional Court-fee and holding that the Court-fee originally paid was sufficient. In that case the Subordinate Judge to the 16th November held that the Court-fee paid on the plaint was insufficient and ordered the plaint to be represented within four days along with the deficit Court-fee. Subsequently the plaintiffs appeared and objected to the order and paid the additional Court-fee under protest. The plaint was then admitted and registered. The defendants at the hearing of the suit contested that the plaint as presented on the 16th November being insufficiently stamped was an invalid plaint and that as the deficit Court-fee was not paid till the following day, the suit was barred by limitation. The Court held that the Court-fee paid on the 16th November was sufficient and that the Court had acted erroneously in compelling the plaintiffs to pay a larger sum; and therefore, the plaint as presented on the 16th November was a valid plaint. The suit was ultimately dismissed. On appeal the District Judge held that the plaint was insufficiently stamped on the 16th November and was therefore barred. On second appeal a Full Bench of the Allahabad High Court upheld the later order of the first Court by which it was held that the order of the 16th November was erroneous. Applying this case to the present one the first Court was competent to review the order of the 23rd April, 1923 and to hold that the order demanding ad valorem Court-fee was wrong and the plaint when presented, was sufficiently stamped. The payment of the additional Court-fee in the present case, as in the Full Bench case referred to above, would not in any way stand in the way of the Court correcting its decision that ad valorem Court-fee was payable.
20. In the case of Chandramani Koer v. Basdeo Narain Singh the Court upon the objection of the defendant held that the Court-fee of Rs. 10 was insufficient and directed the plaintiff to pay ad valorem Court-fee. The plaintiff applied for review of that order. The review was granted and the order directing payment of ad valorem Court-fee was set aside and the suit was ordered to proceed without payment of additional Court-fee. Manuk, J. reviewing all the authorities on the subject deduced certain principles one oil which was that 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 Fees Act may for good and sufficient reasons, review its own order of demand on application by the plaintiffs, or revise that order of its own motion.
21. I entirely agree with the view taken by Manuk, J. in that case and I accordingly hold that the Subordinate Judge in this case was wrong in holding that the application for review was not maintainable so long as the order demanding ad valorem Court-fee passed on the 20th July, 1922 was not sought to be reviewed.
22. The last contention of the learned Vakil on behalf of the defendants appears to be substantial. The contention is that though the Court expressed its view that the application for review was not maintainable, the Court actually did review its order and came to the conclusion that the plaint in the present case is distinguishable from that which was dealt with by the Special Bench of this Court in the case of Ram Summit Prasad v. Gobind Das (27) in as much as in the present case the plaintiffs in their plaint alleged that the defendants had not only set up the deed of gift by the widow, but they also claimed to be the nearest reversionary heirs of the last holder of the estate. Thus it is said that the plaintiffs had to prove their title as against the defendants, both claiming from the last male holder before they could eject the defendants, and hence the declaration of their title was essential which coupled with the prayer for possession makes the suit a declaratory one with consequential relief. This no doubt is a feature that distinguishes the case relied upon by the petitioners, and the decision on the point is not free from difficulty and is such upon which opinions may vary. Therefore it will not be sound discretion to decide the point in revision when the question may crop up again in appeal from the final decree made in the case. I would, therefore, reject the application and would allow the plaintiffs to pay the additional Court-fee which had been demanded by the Court below, within three weeks from the date of communication of this order by the Court below to the plaintiffs. The application is accordingly rejected with costs: hearing fee one gold mohur.
23. Foster, J.:— I agree that this application cannot be entertained.
24. Application rejected.