Sham Narain Singh vs Basudeo Prasad Singh

Wort, J.—The learned Subordinate Judge of Chapra has decided as one of the issues in the case that the plaint was insufficiently stamped and that deficit court fee of Rs. 900 odd was payable by the plaintiff. On that order the plaintiff comes to this Court in revision.

A preliminary objection is taken on behalf of the Crown that the application in revision does not lie, and, for the purposes of that objection relies upon the case of Bhuneshwari Prasad v. Mohan Lal [1919] 1 P.L.T. 5. There a Divisional Bench of this Court decided that the Court would not interfere u/s 115, Civil P.C., as there was a remedy other than an application in revision open to the plaintiff; and stated that what the plaintiff should have done was to wait for the plaint to be rejected in the event of his not paying the deficit court-fee and then to have appealed, the order of the learned Subordinate Judge rejecting the plaint being a decree within the meaning of Section 2, Civil P. C.

The case relied upon by the applicant is Bankey Behari v. Ram Bahadur [1918] P.H.C.C. 223 a decision of this Court in which dealing with a preliminary objection Atkinson, J., stated that:

this Court hag, as a matter of fact, interfered in interlocutary matters like; the present on former occasions and it appears to us that where the record of the case has been sent for by this Court 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 having regard to the erroneous finding touching a question of jurisdiction by the lower Court.

In my judgment, the applicant before us has failed entirely to show how there has been an error touching the matter of jurisdiction. Speaking for myself, in any event I would prefer to follow the decision in the case of Bhuneshwari Prasad v. Mohan Lal [1919] 1 P.L.T. 5.

But apart from the preliminary objection, which as I have stated, I would decide against the applicant, I would content myself in this case by deciding the matter on the following grounds. As I have stated, the matter of the court-fee was one of the issues in the case.

The learned Subordinate Judge undoubtedly had jurisdiction to decide that matter. He has decided it; and even assuming that he has taken a wrong view of the law, that quite clearly does not entitle this Court to interfere with his order u/s 115, Civil P. C. It is true that the applicant has argued that we have powers u/s 107, Government of India Act, but, equally clearly, Section 107 gives no wider power to this Court than Section 115. The applicant has failed entirely to show that the learned Subordinate Judge has either exceeded his jurisdiction or has failed to exercise his jurisdiction or has exercised that jurisdiction with material irregularity; and, in those circumstances, it seems to me that the application fails and must be dismissed. There will be no costs.

Kulwant Sahay, J.

I agree.