Maharaj Bahadur Singh vs Raja Prithichand Lal and Others

Fazl Ali, J.—The petitioner is the plaintiff in a suit which is at present pending in the Court of the Subordinate Judge of Purnea. A question arose in that suit as to whether the Court-fee paid by the plaintiff was sufficient. On 6th December, 1928, the learned Subordinate Judge decided that the Court-fee paid by the plaintiff was not sufficient and directed him to pay the deficit amount of Rs. 1,940 8-0 by the 22nd December, 1908, so that the plaint might be properly admitted. It is against this order that the present application is directed and it is contended on behalf of the petitioner that the order passed by the Subordinate Judge requiring the petitioner to pay Additional Court-fee is wrong and should be set aside.

The learned Advocate for the opposite party relying on certain authorities of this Court as well as other High Courts raises a preliminary objection that an application of this character is not usually entertained by this Court and should not be entertained in the present case. The earliest case of this Court which has been cited by him in support of this contention is the case of Bhubneshwari Prasad v. Mohan Lal 55 Ind. Cas. 786 : 1 P.L.T. 5. It appears that in that case the trial Court decided the issue about Court-fee against the plaintiff and called upon him to pay certain Additional Court-fee. The plaintiff thereupon moved the High Court in revision against the interlocutory order, without waiting to prefer an appeal against the order rejecting the plaint under Order VII, Rule 11. This High Court rejected the application and observed as follows:

Having regard to the decision in Chandramani Koer v. Basdeo Narain Singh 49 Ind. Cas. 442 : 4 P.L.J. 57, it is apparent that an appeal will lie against an order made rejecting the plaint in this case. We see no reason, therefore, to interfere at this stage. It may be that in Banke Behari v. Ram Bahadur 44 Ind. Cas. 891 : 4 P.L.J. 191 : 4 P.L.W. 281 : (1918) Pat. 223 a Divisional Bench of this Court interfered with an interlocutory order of this description, but generally the cursus curice of the Calcutta High Court and of this Court has always been not to take action u/s 115, when there is another course open and no irremediable harm can be suffered by the interlocutory order. The learned Subordinate Judge will, no doubt, give the necessary extension of time for the filing of the deficit Court-fee.

This case was followed in, Lachmibati Kumari v. Nandkumar Singh 56 Ind. Cas. 649 : 1 P.L.T. 268 : 5 P.L.J. 400 : (1921) Pat. 166 : 3 U.P.L.R. (Pat.) 138, where Courts and Adami, JJ., disposed of a similar application on precisely the same ground as given in Bhubneshwari Prasad v. Mohan Lal 55 Ind. Cas. 786 : 1 P.L.T. 5. The same view was held by a Division Bench of the Calcutta High Court in Gobindu Das Nath v. Nityakali Dasi 51 Ind. Cas. 581 where Walmsley, J., in delivering the judgment of the Court disposed of the matter as follows:

This is a Rule calling on the opposite-party to show cause why the order requiring the plaintiff to pay the deficit Court-fee of Rs. 2,980 should not be set aside. It appears to me that the plaintiff has mistaken his remedy, or rather he has another remedy easily available to him and on that account we ought not to interfere u/s 115 of the Civil Procedure Code. If he fails to deposit the sum which he has been ordered to pay, his suit will be dismissed and then he will have a right of appeal. That being so, I do not think we ought to interfere with the order passed by the Court below in our rivisional jurisdiction.

Again a similar question having arisen in the Madras High Court in the case of Acha Vs. Sankaran and Others, Sir William Phillips J., dealt with the matter as follows:

In the Patna High Court it has consistently been held that the Court would not interfere in such a case, vide Lachmibati Kumari v. Nandkumar Singh 56 Ind. Cas. 649 : 1 P.L.T. 268 : 5 P.L.J. 400 : (1921) Pat. 166 : 3 U.P.L.R. (Pat.) 138 and the same view was taken by a Bench of the Calcutta High Court in Gobindu Das Nath v. Nityakali Dasi 51 Ind. Cas. 581. With all respect it appears to me that this is the right course to follow. Even if the plaint is rejected on the ground that the Court-fee has not been paid, the plaintiff will have a right of appeal and if he pays the extra fee and has a trial of the suit and the suit is dismissed the question can again be raised by him in appeal. This being so, it seems useless to interfere in revision with what is in effect an interlocutory order which can be questioned hereafter.

Mr. P.K. Sen appearing for the petitioner, however, draws my attention to the cases of Banke Behari v. Ram Bahadur 44 Ind. Cas. 891 : 4 P.L.J. 191 : 4 P.L.W. 281 : (1918) Pat. 223, Nauratan Lal v. Wilford Joseph Stephenson 50 Ind. Cas. 470 : 4 P.L.J. 195 : (1922) Pat. 79 : AIR 1922 Pat 359 and Mani Lal and Others Vs. Durga Prasad and Others, where it has been held that this Court might interfere with an interlocutory order passed by a Subordinate Court directing the plaintiff to pay Additional Court-fee. The question as to what this Court should do in such a case seems to have been dealt with at some length in the case of Mani Lal and Others Vs. Durga Prasad and Others, which was decided by Jwala Prasad and Foster, JJ. In that case Jwala Prasad, J., has tried to reconcile the various cases decided in this Court on the point as will appear from the following observations:

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 u/s 115 of the CPC read with Section 15 of the Charter Act (s. 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 6 Ind. Cas. 574 : 12 C.L.J. 519 : 15 C.W.N. 353 as also in the case of Chandramani Koer v. Basdeo Narain Singh 49 Ind. Cas. 442 : 4 P.L.J. 57 and would seem to have been now generally accepted.

The question whether an order directing Additional Court-fee to be paid satisfies the aforesaid tests depends upon the circumstances of each case.

Now, the conclusion which may be safely arrived at on a consideration of the case-law on the point seems to be this that although this Court might be competent to interfere with an erroneous decision of a Subordinate Court directing the plaintiff to pay Additional Court-fee, such an order will be revised by this Court only in exceptional cases, particularly when there is no other remedy available to the injured party and when the order complained against is such as is calculated to cause irreparable loss to such a party. It has also been held that the High Court will interfere u/s 115 when the order of the Subordinate Court is manifestly wrong or perverse and amounts to a denial of jurisdiction. Thus it was laid down by Holmwood and Chatterji, JJ., in Ramrup Das v. Sujaram Das 7 Ind. Cas. 92 : 14 C.W.N. 932 : 12 C.L.J. 211 that to hold that a member of the public bringing a declaratory suit u/s 92 of the CPC could not bring such a suit without valuing his plaint as the value of the property involved is shutting him out of the right of suit and it would be useless to defer the decision, until the plaintiff had by neglecting to take fresh step in the matter incurred the rejection of the plaint. Each case, therefore, has to be decided on its own circumstances and in this view the capes cited by Mr. P.K. Sen may be reconciled with those relied on by the opposite party. It may be mentioned here that the cases of Banke Behari v. Ram Bahadur 44 Ind. Cas. 891 : 4 P.L.J. 191 : 4 P.L.W. 281 : (1918) Pat. 223 and Nauratan Lal v. Wilford Joseph Stephenson 50 Ind. Cas. 470 : 4 P.L.J. 195 : (1922) Pat. 79 : AIR 1922 Pat 359 were both decided by Chapman and Atkinson, JJ., the former having been decided on February 5,1918, and the latter on February 6, 1919. In the former case Atkinson, J., took care to make the following observations:

It appears to us that where the record of the case has been sent for...and there appears on the record an obvious error, it is right and proper that this Court should dispose of the matter even at this stage of the proceedings.

In the latter case one of the grounds on which the learned Judges considered themselves justified in interfering with the order of the Subordinate Court was that considerable delay had already occurred and was likely to occur if a remand was ordered. In Mani Lal and Others Vs. Durga Prasad and Others, although Jwala Prasad, J., elaborately went into the question as to whether this Court had the jurisdiction to interfere with interlocutory orders passed by a Subordinate Court on the question of Court-fee and if so, in what cases the power of interference should be exercised, the learned Judge ultimately rejected the application made in that particular case and all that Foster, J. said was "I agree that this application cannot be entertained".

Now, the decision of the Subordinate Judge in the present case cannot be said to be manifestly wrong or perverse. All that can be said is that the question as to whether the view taken by him is right or wrong is an arguable question. Nor are there any special circumstances made out in the present case to attract the revisional jurisdiction of this Court. In these circumstances, following the cases relied upon by the opposite-party and without expressing any opinion at this stage as to whether the order of the Subordinate Judge is right or wrong, I would reject the application on the ground that it is not usual for this Court to revise an interlocutory order such as the one which has been passed by the Subordinate Judge in this case. I would, however, direct that the plaintiff will be allowed by the learned Subordinate Judge a reasonable extension of time within which to pay the extra Court-fee which he has been required to pay. There will be no order as to costs in this case and the order as to the said interim stay of execution granted by this Court will be discharged. Let the record of the case be sent down to the Court below at once.