Nanhki Kaharin vs Rajmata Haripriya Mali Devi and Others

This appeal by the plaintiff is directed against the order dated the 8th December, 1964 passed by the District Judge of Palamau, affirming an order passed by the Munsif of Palamau rejecting the plaint of Title Suit No. 107 of 1961 under the provisions of Clauses (b) and (c) of Rule 11 of order VII of the Code of Civil Procedure.

The appellant filed the aforesaid suit for declaration of title and recovery of possession in respect of 2.32 acres of land along with trees and a cutcha well standing on it, valuing it at Rs. 250 and paying a court fee of Rs. 33.75 on this amount. Defendant respondents 1 and 2, on their appearance, vehemently challenged the valuation put on the plaint and alleged that the valuation of the suit property was more than Rs. 2,000/-. The learned Munsif tried the question of valuation as the first issue end by his order dated the 20th September 1963, came to the conclusion that the valuation of the suit property was Rs. 2,345 and held that the valuation given by the appellant was incorrect and the court fee paid was insufficient. The appellant was, therefore, ordered to get the valuation amended from Rs. 250/- to Rs. 2,345/- and she was also directed to pay the deficit court fee by the 5th October, 1963. On the 5th October, 1963, when the case was taken up, the appellant filed an application for time to file an appeal against the order enhancing the valuation. The learned Munsif allowed time till the 16th October, 1963 to get the valuation amended and to put in the deficit court fee, as ordered on the 20th September, 1963. When the case was taken up on the 16th October 1963, the appellant did not appear and her lawyer expressed his inability to take steps. The learned Munsif passed the order.

Let the plaint be rejected.

An appeal was preferred against this order before the District Judge, Palamau, but the same was dismissed.

It is contended by Mr. Shankar Prasad learned Counsel for the appellant, that the learned Munsif erred in law in passing a composite order, namely, (1) asking the appellant to correct the valuation, and (2) directing her to pay deficit court fee. Reliance, in this connection has been placed on a Bench decision of the Allahabad High Court reported in ( Abdul Ghani Vs. Vishunath, ).

Having heard learned Counsel for the parties, we are of the opinion that the learned Munsif ought not to have passed the composite order requiring the appellant both to amend the valuation and to pay the deficit court fee. It is clear that, unless the valuation was increased as directed by the Court in its order dated the 20th September 1963, the plaint was not "written upon paper insufficiently stamped", and as such in the Court could not have asked the appellant to pay the deficit court fee. But for the composite order passed by the learned Munsif, the appellant could have deleted a portion of her claim or relief if she had been separately asked to correct the valuation as required by order VII, Rule 11 (b) of a composite order was passed, this opportunity was denied to her and it is clear that she has suffered. The question of prejudice to the respondents does not arise because court fee is a matter between the plaintiff and the State (vide Baijnath Prasad Singh v. Umeshwar Singh 18 P.L.T. 665) (Special Bench).

In the result, the appeal is allowed, the orders of the Courts below dismissing the plaint are set aside and the case is sent back to the learned Munsif with a direction to pass orders under Clauses (b) and (c) of Rule 11 of Order VII of the CPC separately. There will be no order for costs so far as this Court is concerned.