Vishwanath Vasudeo and Another vs Sakal Alya Panch and Another

Chaturvedi, J.—A suit was instituted by the Plaintiffs, on behalf of Sakal Alya Panch Khargone, against the Defendant applicants, for the possession of a temple. The allegation is that the temple of Ramjee belongs to the Panchas, and after the death of Mahant Shri Kuberdas, the Panchas appointed Defendant No. 1 as the pujari. Defendant No. 2 is the brother of Defendant No. 1. The plaint stated that the duty or Defendant No. 1 was to arrange the Puja, to manage the temple and to take the offerings. Due to mismanagement of the temple, the Panchas desired to appoint a new Pujari; but Defendants No. 1 and 2 did not leave the temple and hence the suit is instituted. The Plaintiffs valued the relief of possession at Rs. 100/- and 5 rupees was the valuation put for purposes of injunction and they paid Court fee of Rs. 8/14/0. The trial Court held that the subject matter of the suit is not capable of money valuation and, therefore, the Court fee ought to be levied under Schedule II Article 17(VI) of the Court fees Act and the Plaintiffs were ordered to pay Rs. 15/-.

Against this order the Defendant has come up to this Court and wants me to revise it. The first question that arises is: Whether such a revision is entertainable?

Their Lordships of the Privy Council in - Rachappa Subrao v. Shidappa Venkat Rao'' 43 Bom. 507 : 46 Ind App 24 : AIR 1918 P.C. 188 had observed:

The Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. This is evident from the character of the Act, and is brought out by Section 12, which makes the decision of the first Court as to value final as between the parties, and enables a Court of appeal to correct any error as to this, only where the first Court decided to the detriment of the revenue.

Their Lordships refused to allow a Defendant to utilise the provisions of the Act to obstruct his opponent, and refused to entertain his objection raised for the first time in appeal, that the Court had no jurisdiction to proceed upon an insufficiently stamped plaint. An inference was rightly drawn from this by the Full Bench of the Nagpur High Court in - AIR 1938 122 (Nagpur) that a question about the sufficiency or otherwise of Court-fee is only a side-issue. It is not inter, partes and does not invalidate a decision simply because the plaint or the Memorandum of appeal was under-stamped.

After discussing the case-law on the point the Full Bench of the Nagpur High Court came to the conclusion that if the effect of the order of the Court demanding additional Court fee is a refusal to proceed to trial at all, it must be regarded as an irregularity which affects either jurisdiction or procedure within the meaning of Clause (c) of Section 115 Code of Civil Procedure; and inasmuch as it is only merely incidental and interlocutory but finally and effectively shuts the Plaintiff out from all hope of redress in the suit itself, the error must be regarded as material.

The Full Bench, therefore, held that an order demanding additional court-fees is always revisable, but at the same time this opinion was also expressed that an order accepting the Court-fees paid is not revisable because, then there is no refusal to proceed with the trial (or the appeal) and because their Lordships of the Judicial Committee had observed in - ''Rachappa Subrao v. Shidappa Venkat Rao'' 43 Bom. 507 (PC) at p. 518 "Jurisdiction is not then affected nor is the other side damnified."

A different view was taken in - ''Hiralalsa v. Rambhau'' AIR 1946 Nag 160 by a Judge sitting on a Single Bench but this was not followed in later decisions vide - AIR 1949 211 (Nagpur) which adhered to the Full Bench ruling.

A similar view was taken by a Full Bench of the Patna High Court in - Ramkhelawan Sahu Vs. Bir Surendra Sahi and Others, where it was held that in deciding the question of Court-fees, the Court decides an issue between the Plaintiff and the Crown and the Defendant is not a party to the dispute; that the Defendant has a remedy should the decision on merits be against him, in bringing the matter of the Court-fee to the notice of the appellate Court u/s 12 Court-fees Act; and lastly that as between the Plaintiff and the Defendant the trial Court has not refused to exercise its jurisdiction to decide the case on the merits.

The Calcutta High Court in - Rabindra Nath Chakravarty Vs. Girindra Mohan Bhaduri, expressed dissent from the above view and observed that the question, whether the suit falls within a particular category u/s 7 or whether it comes under one or the other schedule of the Court-fees. Act cannot be regarded as merely one between the Plaintiff and the Crown, for it may affect the jurisdiction of the Court to entertain the suit and that is a matter in which the Defendant is certainly interested. It was therefore held that the decision on a question as to proper classification of a suit, that is, whether an ad valorem fee or fixed fee is payable on the plaint, is open to revision u/s 115 Code of Civil Procedure.

With due respect to the learned Judges who decided this case as well as - Kanaklata Dasi and Others Vs. Ram Gopal Das Naskar and Others, I have not been able to understand the basis which led them to differentiate between a question of valuation and a question relating to classification. In my opinion, the reasoning in the two rulings is obscure as a question of valuation involves generally, though not necessarily, a question relating to classification. In - ''S. Mazahir Hussein v. Anjuman Islamia'' AIR 1947 All. 404 a Division Bench of the Allahabad High Court came to the conclusion that a Defendant has no locus standi u/s 6A (U.P. Court-fees Act) to challenge the order, calling upon the Plaintiff to make good the deficiency in Court fee by objecting that the amount of Court-fee ordered to be paid is not sufficient.

Though I agree with the conclusion, I respectfully disagree with the reasoning that an order demanding additional Court-fee does not amount to a "case decided" within the meaning of Section 115 Code of Civil Procedure. This decision is based upon two old Full Bench rulings reported in - Gupta and Co. Vs. Kripa Ram Brothers and in - Mt. Suraj Pali Vs. Ariya Pretinidhi Sabha, . The changes in the Court-fees Act subsequent to these Full Bench rulings, have entirely been overlooked. In my decision, in a case at Gwalior - ''Chinkubai v. Jaisingh'' Civil Revn. No. 75 of 1951, I have dissented from the observations of this Division Bench, and I have agreed to the modern view and to the view taken by Waliullah J. in - ''Hafiz Mahomed v. Chief Inspector of Stamps, U.P.'' AIR 1947 All. 340.

So far as the Defendant''s application in revision is concerned, in my opinion, the position has very succinctly been gummed up by Panchapakesa Aiyer J. in - ''Subrahmanyam v. Lakshmi Marayanamma'' AIR 1949 Mad. 415 where it has been held that if a matter affects Court-fee alone, which is one purely between the Government and the Plaintiff, no revision petition might lie at the instance of the Defendant, but when it involves a question of jurisdiction of the lower Court also, the Defendant'' is clearly interested in the matter, as his right of appeal would be affected; and only in that case a revision would lie. With respect I concur in this view.

In the present case, as no question of jurisdiction of the Court below is involved, the revision petition cannot be held to be competent and it must fail. I might however add that even if the revision was competent, I do not think, I would have differed from the view taken by the lower Court, as the property of a temple belongs primarily to the derty and falls within the category of res extra commercium. Even as a house, it has no market value within the terms of Section 7 Clause (V)(e) and a suit for recovery of possession of it for the purpose of managing it and conducting its worship falls under Article 17(6) of Schedule 2. It makes no difference as to the marketability of the temple whether it is public or private. The principles enunciated in - Rajagopala Naidu Vs. Ramasubramania Aiyar and Another, and in - ''Motilal Shioji Ram v. Shambhoolal Ganpatlal'' AIR 1938 Nag. 481 : 178 Ind. Cas. 97 fully apply to the facts of the case.

For reasons stated above, I dismiss the revision with costs.