Ramkrishna Naidu and Others vs Janaki Ammal and Others

Chandra Reddy, J.—This revision petition raises a question relating to court-fee. The petitioner filed (sic) suit in the Court of the District

Munsif of (sic)alangiman for recovery of properties described (sic) A, B and C schedules annexed to the plaint (sic) to be the reversioner to the

estate of (sic) Chinnayya Nayudu against the alienees of (sic) properties from the widow of said Chinnay (sic) Naidu. He valued the suit at Rs.

2797 and (sic) an ad valorem court-fee of Rs. 247-7-0.

Pending the suit, but before it came on for (sic) the plaintiffs filed compromise petitions settling their claim with defendants 5, 7, 9 and (sic) in

respect of items 1 and 3 of the plaint schedule properties. Subsequently, that is, after (sic) issues were framed, the court-fee examiner (sic)sued a

check-slip that the suit properties were (sic) correctly valued, though none of the parties (sic) raised any objection as to the valuation or (sic) the

pecuniary jurisdiction of the Court. (sic) the District Munsif appointed a (sic) who reported that on a proper (sic) of the properties, the suit would

be (sic) the pecuniary jurisdiction of that Court. (sic) this report of the Commissioner, the (sic) Munsif returned the plaint for presen(sic) to the

proper Court. After taking back (sic) plaint, the plaintiff struck off the claims as (sic) items 1 and 3 and re-presented it in (sic) same Court. It may

be mentioned here that (sic) those items were excluded, the plaint could be (sic) as it would be within the pecuniary (sic) jurisdiction of the District

Munsif.

The District Munsif returned the plaint again(sic) the reason that he thought that the plaintiff could not be allowed to bring the suit within the

pecuniary jurisdiction by abandoning some of the reliefs, as they had already obtained interim decrees as per the compromise filed into court. On

an appeal to the Subordinate Judge, the order of the trial court was set aside and the District Munsif was directed to receive the plaint as amended,

if presented in his Court. The ground of decision of the lower Appellate Court was, that it was not open to a Court, to insist on the plaintiffs asking

for a relief which they did not want or to call upon them to reinstate into the plaint, the properties and defendants that they had chosen to give up.

Secondly the lower Appellate Court found that the trial court was wrong in assuming that interim decrees had been passed. It was also observed

by the Appellate Judge that if the trial Court considered that it was a new plaint, it might call upon the plaintiffs to pay fresh court-fees.

When the plaintiffs sought to represent the plaint again with the court-fee originally paid, the trial Court directed the plaintiffs to pay fresh court-

fee on the ground that the claim alleged to have been settled was realised during the pendency of the suit and therefore the court-fee paid in O. S.

No. 243 of 1949 could not be utilised for the plaint.

It is urged in support of the petition that the court-fee paid already in O. S. No. 243 of 1949 is sufficient and no fresh court-fee need be paid.

There is substance in this contention. There is clear authority for. the position that when a plaint is returned under Order 7 Rule 10, Civil P. C., for

presentation to proper court, credit should be given for the court-fee already paid on the plaint as originally filed.

""The return of plaint"" as observed in --''Visweswara Sarma v. Dr. P. M. Nair'', 35 Mad 567 (A), ""for presentation to a proper Court is to

enable the plaintiff to present that document without paying the stamp over again"". In that case, the Full Bench expressed the opinion that when a

plaint was returned for presentation to the proper Court, the plaintiffs were entitled to get credit for the fee originally levied by the former Court.

The learned Judges followed the view expressed by a Pull Bench of Bombay High Court in -- ''Prabhakarbhat v. Vishwambhar Pandit'', 8 Bom

313 (B). The observations of the learned Judges in the last mentioned case are appropriate:

Where a court-fee on the institution of a suit has been paid in a court which cannot possibly afford relief sought, it does not seem consistent with

sound principle that the plaintiff should be condemned to lose the fee thus paid or that he should not be allowed to ask without paying a second fee

for an adjudication from a Court which can really give one.

That the principle is the same even if some of the reliefs originally sought are abandoned and thereby the suit is brought within the jurisdiction of the

original Court and plaint represented to the same court is seen from a ruling of this. Court in -- P. Varada Pillai Vs. P.V. Thillai Govindaraja Pillai, .

Ramesam J. relying on the earlier rulings of this Court, held that the court-fee paid originally on the plaint could be utilised and that additional court-

fee need not be paid.

It is not necessary to multiply authority even on principle. When once it is established that credit should be given to court-fee already paid when

presented in the proper Court as directed under Order 7, Rule 10, the same principle should govern the representation of the plaint to the same

Court. If, in law, the plaintiff is entitled to strike off properties or parties when tie takes back the paint and represents it to the same Court, it will

follow that he should be permitted to use the same court-fee.

The only question is whether it makes any difference, if before the plaint was returned under Order 7, Rule 10, a petition compromising the

claim in respect of some items which were sub-sequently struck off was filed in that court. In my opinion there can be no difference in principle. It

is conceded that if the stricking off of properties is the result of a compromise with some defendants but no compromise petition is filed, it can in no

way affect the right of the plaintiff to use the same court-fee. Can it be said that the fact the compromise petitions were filed would in any way alter

the situation? Although the petitions were filed at a time when it was thought that the Court had pecuniary jurisdiction, these compromise petitions

had no validity or legal effect, as it was subsequently found that the Court had no pecuniary jurisdiction to entertain the suit; much less the

compromise petitions. As such, no notice of these petitions could be taken as they were filed into the Court which had no jurisdiction. The learned

District Munsif thought that really the claim aa regards items 1 and 3 was not abandoned, but it was realised during the pendency of the suit.

First of all, it must be observed that no order was passed on the compromise petition, Even if any such order was passed, it would be of no

legal effect as it would be an order coram non judis''. The filing of the compromise petition does not amount to a realisation of the claim. Whatever

might be the position, if a valid decree was passed in respect of some claim by a Court of competent jurisdiction, thus enabling the plaintiff to

execute the decree, the position is different in a case where there is no such decree and in fact where the Court is not competent to entertain even

the compromise petition. If any advantage was gained by him, it was not his fault. If the court-fee examiner had examined the plaint earlier perhaps

all these difficulties would have been avoided. The bona fides of the plaintiffs are not in any way questioned.

In my opinion, the view of the trial Court that a fresh court-fee need be paid is unsustain able. The same court-fee already paid by the petitioners

in O.S.N. 243 of 1949 could be utilis ed for the plaint as represented. In the result, the civil revision petition is allowed. Parties will bear their own

costs throughout.