Decided on November 24,1954



- (1.) This Civil Revision Petition is filed as against the order of the Subordinate Judge of Rajahmundry in check-slip No. 210/x in O.S. No. 87 of 1951. The plaintiff-petitioner herein filed a suit for partition of the properties mentioned in plaint schedules A to D into two equal shares and for allotment of one such share to her. In respect of the relief for partition and separate possession, she paid a court-fee of Rs. 100 under Schedule II, Art. 17-6 of Court-Fees Act. Objection was taken by the office that the suit had to be valued under section 7, clause (v) of the Court-Fees Act. The plaintiff re-preseated the plaint stating that the court- fee paid by her was sufficient and the District Judge passed the following order on 20th March, 1951 :- "Consistently with her contention that she is in joint possession plaintiff has not asked for recovery of possession. She prays for only partition and allotting one share to her. Hence register." The plaint was accordingly registered as O. S. No. 26 of 1951. The defendant filed a written statement on 25th July, 1951, and in paragraph 12, he contended that the plaintiff was not a co-owner in joint possession of any of the suit properties and that she had to pay court-fee on the market value of her share of the suit, properties.
(2.) The Court-fee examiner having taken an objection that the Court-fee paid was not adequate, the question of Court-fee was heard by the Subordinate Judge of Rajahmundry as a preliminary issue and following the decision in Pydah Swryanarayama Murthi v. Pyda Ramakrishniah, (1949) 1 M.L.J. 513. he held that in spite of the order passed by the District Judge 6n 20th March, 1951, holding that the Court-fee was sufficient, he was entitled to go behind that order and decide the same question, as the prior order was not passed after hearing the parties. He also held, differing from the Distrigt Judge, that the plaintiff was bound to pay Court-fee under section 7, clause (v) after furnishing full particulars in regard to some of the items in the plaint A schedule. The plaintiff has filed the above Civil Revision Petition as against the said order.
(3.) Two Questions were raised by the learned advocate for the petitioner, namely, (i) that under the terms of section 12 (i) of the Court-Fees Act, the decision of the District Judge, dated 20th March, 1951, was final and was not liable to be re-opened at a later stage of the proceeding in the suit by the Subordinate Judge and (ii) that the Subordinate Judge erred in holding that section 7 (v) of the Court-Fees Act applied in regard to some of the plaint A schedule items. He contended that the decision in Pydah Suryanarayana Murthi v. Pydah Ramakrishniah is erroneous and that it was in effect overruled by a Bench in Bendapudi Veera Venkatasubba Rao and another v. Rao Venkatarao, (1951) 1 M.L.J. 73 : I.L.R. (1951) Mad. 867. The learned advocate for the respondent argued, on the other hand, that the Bench decision is not correct and is opposed to the decisions of the Allahabad, Patna, Oudh and Nagpur High Courts, and that, on a proper reading of the several provisions of the Court-Fees Act, I should not follow the derision of the Madras High Court in Bendapudi Veera Venkatasubba Rao and another v. Rao Venkatarao. He also contended that the finality of a determination or desision under section 12 (i) is only in regard to valuation or appraisement of the property and not in regard to the class or category under which the case falls, as held by the Supreme Court in a recent decision in Nemichand and another v. The Edward Mills and Company, Ltd., and another, (1953) 1 M.L.J. 117 : (1952) S.C.J. 674 (S.C.).;

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