Shah, J. - (1.)This is a revisional application against the order of the Civil Judge, Senior Page 1 of 5 Raghunath Ganesh Thakar vs. Vaman Vasudev Chitale (01.07.1949 - BOMHC) Division, Poona, directing the plaintiff to pay the necessary court-fee on a plaint which was transferred to his Court under orders of this Court. The plaintiff filed suit No. 1920 of 1946 on the Original Side of this Court against the defendant, who is the opponent before me. The defendant filed is the Court of the Civil Judge (Senior Division), Poona, suit No. 820 of 1943 against the petitionerplaintiff for a certain declaration and injunction. The defendant applied to this Court by application, being Civil Application No. 324 of 1947, for an order transfering the suit on the Original Side of this Court to the Poona Civil Judge's Court with a direction that that suit be heard with suit No. 820 of 1946. This Court by its order dated 27th November 1947, directed as follows:
"We therefore make the rule absolute and direct that Suit No. 1920 of 1946 pending on the Original, Side of this Court be transferred to the Court of the Civil Judge, Senior Division, Poona, and that Suit No. 820 of 1916 pending in the Court of the Civil Judge, Junior Division, Poona, be transferred to the Court of the Civil Judge, Senior Division, Poona, and that both, the suits should be heard and decided by the Court of the Civil Judge, Senior Division, Poona, according to law."
After the proceedings of Suit No. 1920 of 1946 were transferred from the file of this Court on its Original Side, they were numbered as Suit No. 67 of 1948 of the file of the Civil Judge (Senior Division), Poona. The learned Civil Judge, Senior Division, Poona, raised an issue as to whether the plaintiff had paid proper court fee on the suit claim. The learned Judge came to the conclusion that the plaintiff had not paid the necessary court-fee and directed that the plaintiff should pay ad valorem court-fee on the amount of Rs. 10,000 claimed. The plaintiff feeling aggrieved by that order directing him to pay court-fee on the amount of, Rs. 10,000, which was the subject-matter of his claim, filed this revision application. The defendant opponent has not appeared before me because the notice could not be served on him, but the Assistant Government Pleader has appeared in support of the order passed by the Court below.
(2.)It is contended by Mr. Bhalerao on behalf of the petitioner that the plaint was properly filed with the institution fee which is required to be paid on the original side of this Court, and the suit having been properly instituted no question of payment of any further court-fee could arise on a transfer of the suit to the Court of Civil Judge, Senior Division, at Poona. Mr. Bhalerao contends that it is by reason of the order of the Court that the suit had been transferred and he says that the Poona Court has no jurisdiction to direct that any further amount of court-fee be paid. Mr. Bhalerao says that the order of transfer was not the result of a voluntary act on the part of the plaintiff, but it was in pursuance of an order of the Court that the transfer of the suit had taken place; and he relies on the adage that the 'act of the Court shall causes prejudice to none.' Therefore, he contends that if a plaint is properly filed on the original side of this Court, a subsequent transfer by the Court to another Court cannot render the plaint liable to court-fee to which it would not have been liable if the suit had continued on the original side of this Court. Mr. Bhalerao also relies upon a decision of the Calcutta High Court in Bibee Golap Kumari Saheba, v. Md. Kadiruddin, 12 C. W. N. 917. Page 2 of 5 Raghunath Ganesh Thakar vs. Vaman Vasudev Chitale (01.07.1949 - BOMHC)
(3.)Now the court-fee chargeable on documents which are filed, exhibited or recorded in any Court of Justice other than the Courts referred to in chap, II, Court-fees Act is provided for in Schedules I and II, Court-fees Act. Section 6, Court-fees Act provides as follows:
"Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the first or second schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document "
The Court of the Civil Judge, Senior Division, Poona, is not one of the Courts mentioned in Chap. II, Court-fees Act and, therefore, the court-fee payable on a plaint filed or instituted in that Court must be governed by the provisions of Section 6 and the provisions of Schedules I and II, Court-fees Act. Section 28, Court fees Act provides:
"No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. But, if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance."