(1.) THIS is an appeal against the order of a Sub-Judge at Delhi rejecting under order VII, Rule 11, Civil Procedure Code, the plaint of the appellant, who had instituted a suit challenging by way of pre-emption the sale by Mohan Lal defendant No. 1 of 60,000 square yards of land at Sadhora Kalan for Rs. 3,60,000/- in favour of a body known as the Western Punjab Jain Rehabilitation association of which the President, Secretary and members of the managing committee were impleaded as defendants. The plaintiff valued his suit at Rs. 2,000/- under Section 7 (v) (b) of the Court-fees Act, i. e. , on ten times the land-revenue of the land in suit and paid a court-fee of Rs. 206/4/ -. The vendee-defendants challenged this valuation and maintained that an ad valorem court-fee on the market-value of the land i. e. , purchase-price was payable under Section 7 (v) (d) of the Act. By an order dated 21-1-1953, the lower Court upheld the contention of the vendees and allowed the plaintiff a week to make up the deficiency of court-fee and after this period had been extended up to the 6th of February, rejected the plaint on the latter date as the deficiency was not made good.
(2.) IN his appeal the appellant has placed the same valuation as before and paid the same court-fee of Rs. 206/4/ -. The preliminary objection has been raised on behalf of the respondents that the appeal should also be rejected as insufficiently valued. On this point reliance is placed on certain decisions of the Nagpur, Madras and Patna High Courts. The first of these cases is a decision by a Full Bench in Apparao Sheshrao v. Mt. Bhagubai, AIR 1949 Nag 1. The only question considered by the three learned judges was what was the proper court-fee on an appeal filed against the order of the Court rejecting the plaint under Order VII, Rule 11, C. P. C. , after the plaintiff had failed to make good the deficiency in court-fee held to be due by the trial court. The matter was decided by them in the following passage :
"we have no doubt in our mind that under Schedule 1, Article 1 of the court-fees Act the court-fee must always be ad valorem on the subject-matter in dispute unless it is incapable of valuation. In other words, the court-fee has always to be ad valorem unless for the special reasons given in Schedule 1, Article 17, the appeal can be brought on a fixed fee. In the present case, therefore, the question resolves itself into this : 'has the ad valorem court-fee to be paid on the full value of the claim or the difference between the court-fee paid and the court-fee demanded?' in our opinion the latter is the amount on which court-fee can be demanded. It is well known that the Court-fees Act is a fiscal measure, and like all fiscal measures, must be strictly construed. Schedule 1, article 1, itself requires that attention should be paid to the subject-matter of the disputed. In our opinion the subject-matter in dispute in so far as the appellant is concerned is the extra court-fee demanded of him by the Court. The whole of the claim which he prefers in the Court below is never dismissed when the plaint is rejected. This is clear from the definition of decree given in Section 2 (2), Civil Procedure Code, read with Order 7, rule 13 of the Code. For the purposes of the Civil Procedure Code the rejection of a plaint is deemed to be a decree because the definition given in Section 2 includes the rejection of a plaint, but that does not mean that the rejection of a plaint is a conclusive determination of the rights of the parties. Under Order 7, Rule 13, the aggrieved party can file another plaint on the same cause of action after paying the court-fee demanded. This shows that there is no conclusive determination of the rights of the parties when the rejection of the plaint takes place. After the rejection of the plaint the unsuccessful plaintiff has two courses open to him. Me can accept the decision of the trial Court and present a fresh plaint, or he can appeal against the order which amounts to a decree. In the second case the dispute involves only the demand for the extra court-fee and with the other alternative open to him it is not right to say that the dispute covers the entire controversy in the suit about which no decision has really taken place. This view has been forcefully expressed by Abdur Rahman. J. in Kalliapoa v. Kandaswami, ILR (1938) Mad 981 : (AIR 1938 Mad 498), where he approves of the decision of Niyogi A. J. C. To the same effect are the observations of the other learned Judge of the Madras Bench, Venkatasubba Rao, J, We may also point out that a similar view has found acceptance in the Patna High Court in Gorakh sahu v. Sheo Nandan Singh, ILR 18 Pat 323 : (AIR 1939 Pat 571 ). In the Madras case to which we have referred, there is a reference to an earlier unreported case of Sehwabe, C. J. and we adopt the observations of that eminent Judge here as our own. This is what Sehwabe. C. J. , said in the unreported case : 'i think that the subject-matter in dispute, meaning the subject-matter in dispute in appeal, has the simple meaning applicable to this case, namely, the amount of stamp in dispute between the parties. '"
(3.) THERE were two cases referred to in this judgment. In the Madras case in the lower appellate Court the plaintiff had paid Rs. 100/- as court-fee on his memorandum of appeal and the District Judge held that the correct fee payable was Rs. 412/7/- and dismissed the appeal when the plaintiff failed to make good the deficit. He filed a second appeal in the High Court which he valued at Rs. 312/7/- i. e. , the difference between the court-fee paid by him in the first appeal and the amount held to be due by the District Judge and paid an ad valorem court-fee of Rs. 35/15/ -. A learned Single Judge of the Madras High Court who dealt with the second appeal held that the proper fee payable was Rs. 412/7/- and dismissed the appeal when the appellant had failed to deposit the balance. In a Letters Patent Appeal venkatasubba Rao and Abdur Rahman, JJ. , who wrote concurring judgments held that the appellant had valued his second appeal in the High Court correctly, taking the view that the subject-matter of the appeal in the High Court was the difference, between the court-fee paid by the appellant in the court of first appeal and the court-fee which was demanded from him there. In the Patna case James and Rowland, JJ. , held that in cases where the only point raised was the question whether the plaint or memorandum of appeal was sufficiently stamped the reasonable method of assessing valuation of court-fee was that it should be paid ad valorem on the difference between the value of the stamp on the plaint and the amount of court-fee demanded by the Subordinate judge.;