Nauratan Lal vs Wilford Joseph Stephenson and others

This application in revision arises out of an order made by the Subordinate Judge requiring the Plaintiff, now the decree-bolder, to pay a sum of Rs. 650 which the Court has held to be due from him on account of court fee.

A preliminary objection has been taken that we ought not to interfere in revision with an interlocutory order of this kind. It has, however, been the established practice of the Calcutta High Court to interfere with interlocutory orders and that practice has been adopted by this Court.

Where the record of the case has been sent for by the Court and the case is before it for order, it would in our opinion not be exercising a wise discretion if we did not now dispose of the matter, the question of discretion being merely concerned with the stage at which the matter should be determined. As considerable delay has already occurred and is likely to occur if a remand is ordered, we are of opinion that the question should be disposed of now

The suit was one for recovery of possession and for mesne profits. The value of the land was assessed in accordance with the rules of the Court Fees Act at Rupees 16,867; there was also a claim for mal kana valued at Rs. 1,200; and a claim for mesne profits estimated as Rs. 13,20. The plaintiff appears to have added these three sums together for the purpose of assessing the Court f e payable and to have paid a Court fee of Rs. 995 on the total amount.

The suit was decreed and after the decree the mesne profits were ascertained by the Commissioner to be Rs. 24,474. The learned Subordinate Judge has held that for the purpose of assessing the Court fee payable the items should be taken separately; i.e., that Court fee should be assessed separately on the value of the land Rs. 16,867; separately on the malikana, Rs. 1,200; separately on the amount of mesne profit, Rs. 24,474. Assessing the Court fee on this basis the Court fee payable would'' amount to Rs. 1,645; the amount of Court fee already paid is Rs. 995, and the learned Subordinate Judge has directed that the deficit Court fee should now be paid.

The Plaintiff decree holder, asks us to hold that the learned Subordinate Judge has fallen into an error and that for the purpose of assessing the Court fee payable he should have done, what the Plaintiff originally did, viz, added all the three items together. If this is done the Court fee payable would amount to Rs. 1,115 and this amount the Plaintiff decree-holder is willing to pay.

The determination of this point depends upon the interpretation to be put upon Section 17 of the Court Fees Act, which provides that where a suit embraces two or more distinct subjects the Plaintiff shall be liable to pay the aggregate of the amount of Court fees payable upon each of such subjects under this Act.

The question is what is the meaning of the word ''subject'' as used in this section? Two views are possible. One is that the word ''subject'' relates back to Section 7 where the various subjects of suits are divided under various heads; and that the intention of Section 17 is that where suit comprises of two or more of the various subjects named in Section 7 the provisions of Section 17 would apply.

The other view is that the word ''subject'' used in Section 17 means ''cause of action'' and is not to be interpreted with reference to Section 7. There can be no doubt that there is much to be said for the former view. But, on the other hand, so far as this Court is concerned the authorities seem to be conclusively in favour of the view that the word ''subject'' in Section 17 means ''cause of action.''

There is a very early decision upon this point, Malchand v. Shib Charan (1860) 2 All. 676 (F.B.). That was not a case of mesne profits but it was held in that case that the word subject means cause of action. This point was also decided by the Calcutta High Court in a Full Bench decision, Kishori Lal v. Sharat Chander (1882) 8 Cal. 593=10 C.L.R. 559 (F.B), and that decision was followed in Re. Reference under the Court Fees Act. 1870 (1894) 16 All. 401=1894 A.W.N. 124.

In the Full Bench case it was stated that the decision was based upon a practice which was then prevalent in that Court; and we are of opinion that it would be unwise to depart from that practice which has been accepted as the established practice since 1882 and which practice must be taken to have been adopted not only by this Court but also by all the Courts subordinate to this Court. We are accordingly of opinion that the Court-fee payable in this case is Rs. 1,115 and not Rs. 1,645 as directed by the Subordinate Judge.

We therefore direct that the Subordinate Judge do dispose of this matter accordingly. The application succeeds and is allowed with costs measured at two gold mohurs.