Smt. Phool Wati vs Sumera and others

Rajendra Nath Mittal, J.—This second appeal has been filed by the plaintiff against the judgment and decree of the Additional District Judge, Gurgaon, dated 27th February, 1975.

Briefly, the facts are that Siri Ram deceased, husband of the plaintiff, purchased the property in dispute from Munshi Lal vide sale-deed dated 17th July, 1939. After the death of Siri Ram, the plaintiff inherited the same as his sole heir. It is alleged that defendant No. 4 on her behalf let out the property to defendants Nos. 1 to 3 on a monthly rent of Rs. 15/-. The defendants paid the rent for some time but refused to do so subsequently. They also refused to vacate the premises. In March, 1969, she instituted a suit for ejectment against them and in the alternative for possession of the property on the basis of title. On July 31 1970, it is alleged, the plaint was rejected as she did not make up the deficiency in the court-fee. She has now filed the second suit for possession of the property.

Defendant No. 4 did not contest the suit and was proceeded against ex-parte. However, defendants Nos. 1 to 3 contested it and inter alia pleaded that the plaintiff was not the owner of the property and that the suit was barred by the principle of res judicata as the earlier suit by the plaintiff was decided on merits and the finding on the issue of ownership was returned against her. Some other pleas were also taken but they do not survive now.

The trial Court held that the plaintiff was proved to be the owner of the property and that the suit was not barred by the principle of res judicata. Consequently, it decreed the same. On appeal by defendants Nos. 1 to 3, the appellate Court affirmed the judgment of the trial Court regarding ownership. However, it reversed the judgment on the other matter and held that the suit was barred by the principle of res judicata. Therefore, it accepted the appeal and dismissed the suit. The plaintiff has come up in second appeal.

The only question that arises for determination is whether the judgment dated July 31, 1970, operates as res judicata between the parties or not. In that judgment, the Court came to the conclusion that the plaintiff (now appellant) was not proved to be the owner of the property and had no locus standi to file the suit. It further held that the value of the property was Rs. 4500/- and not the one on which the court-fee was paid. Consequently the Court dismissed the suit with the observation that the plaintiff should make up the deficiency by August 15, 1970, failing which the plaint would stand rejected. It is not disputed that the Court-fee was not paid by the plaintiff as ordered by the Court. The contention of the learned counsel for the appellant is that the plaint stood rejected for the reason that the court-fee was not paid and the appellant became entitled to file a fresh suit under Order 7, Rule 13 of the CPC (hereinafter referred to as ''the Code'').

Order 7, Rule 11 of the Code liter alia provides that the plaint shall be rejected where the relief claimed is under-valued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so. Order 7, Rule 13 further provides that if the plaint stands rejected under Order 7, Rule 11, the plaintiff shall not be precluded from presenting a fresh plaint in respect of the same cause of action. In my view Order 7, Rule 13 is applicable if the plaint is rejected by the Court for the reason that it prima facie does not bear the proper court-fee according to the valuation fixed or relief claimed by the plaintiff or if the issue regarding court fee can be decided, only after recording evidence, it is tried as a preliminary issue and a finding is returned that the subject matter is under-valued. If the Court after deciding all the issues including that of Court-fee dismisses the suit on merits with the observation that in case the plaintiff does not pay the Court-fee within a specified period, the plaint shall stand rejected, the matter will be deemed to have been decided on merits and not under Order 7, Rule 11. In that eventuality he will not be entitled to take benefit of Order 7, Rule 13. In the above view I am fortified by the observations of Lahore High Court in. AIR 1925 326 (Lahore) . In that case the trial Court dismissed the plaintiff''s suit for pre-emption, but added that if the deficiency in the Court-fee was not made good within a week, the plaint would stand rejected. The plaintiff did not make good the deficiency in the court-fee. The appeal against the judgment was dismissed by the District Judge, holding that the plaint had been rightly rejected. In second appeal the learned Judge held that having dismissed the suit on merits, the Subordinate Judge was not competent to order that the plaintiff should pay the additional court-fee and that the failed to do so, the plaint would stand rejected and that part of his judgment may be disregarded. I also get support from an authoritative pronouncement of the Supreme Court in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, The following observations may be read with advantage :

No doubt it would be open to a Court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If for instance the plaintiff''s cause of action is against a Government and the plaint does not show that notice u/s 80 of the CPC claiming relief was served in terms of the said Section it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code is being claimed, it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice u/s 80 was necessary. If the Court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability, of Section 80 of the Code and absence of notice thereunder should not operate as res judicata in a subsequent suit where the identical questions arise for determination between the same parties.

The learned counsel for the appellant referred to Shanti Pada Ganguli The Union of India AIR 1976 Pat 74. In that case the plaintiff had not served notice u/s 80 of the Code and the plaint was prima facie liable to be rejected for non-compliance of Section 80. However, the Court decided all the issues and dismissed the suit for non-compliance of the provisions of Section 80. In that situation the learned Judge observed that the first suit in view of the non-compliance of Section 80 was not maintainable and, therefore, the judgment will not operate as res judicata in the subsequent suit. The learned Judge also distinguished Gangappa Gurupadappa Gugwad''s case (supra). From the above facts it is clear that the case is distinguishable. After taking into consideration all the aforesaid facts I am of the view that the earlier suit of the plaintiff would be deemed to have been dismissed on merits.

It is not disputed that the subject-matter of the earlier suit and that of the present suit is the same. Therefore, the judgment in the earlier suit would operate as res judicata in this case.

Before parting with the judgment, if may be observed that it is proper that the issue regarding court-fee should be decided as a preliminary issue in order to avoid such controversy. The Court should go into the merits after coming to the conclusion that the plaint is properly stamped or if there is any deficiency, that has been made up. In this view, I get support from the observations in AIR 1935 75 (Lahore) and Munshi v. Giani (1968)70 P.L.R. 530.

In Walaiti Ram''s case (supra), Tek Chand, J. observed that the question of court-fee should be determined at the earliest possible opportunity. If on examining the plaint, the Court finds that the relief claimed is under-valued, it should require the plaintiff to correct the valuation within a time to be fixed by it and if he fails to do so, the plaint should be rejected under Order 7, Rule 11 of the Code. If the matter requires investigation, the Court should record evidence of the parties bearing on the point and if it finds that the court-fee paid is insufficient, it should stay further proceedings in the suit and require the plaintiff to make good the deficiency within the specified time and on his failure to do so, it should dismiss the suit u/s 10 of the Court Fees Act. This case was followed by Mehar Singh, C.J. in Munshi''s case (supra). It was held in that case that the matter of court-fee should be decided by the Subordinate Judge in the very beginning and the plaintiff should be called upon to make up the deficiency, if any, failing which his suit should be dismissed.

For the aforesaid reasons, I do not find any merit in the appeal and dismiss the same with no order as to costs.