SHEEL KUMAR Vs. ADITYA NARAIN AND ANOTHER

JUDGEMENT

(1.) THE entire case has been placed before us for disposal in view of the order of P. C. Pandit, J. dated the 12th November, 1963. The learned Judge felt some difficulty in deciding the preliminary objection in view of the conflict of decisions in this Court, 1 he preliminary objection is that no revision is competent against the order of the a trial Court holding that the plaint was not properly stamped. It has been settled by the Supreme Court in Sri Rathnavarmaraja v. Smt. Vimla, A.I.R 1931 SC. 1299, that if the objection as to Court -fee is raised by the defendant and is decided against him, he cannot challenge that order in revision. Whether this rule also applies to the case, where the objection as to Court -fee has been sustained now falls for determination. Falshaw, J. (as he then was) in Dr. Harbans Lal Khosla v. Shri Mohan Lal Sanon, (1974) P.L R. 198 and in Manohar Lal v. Gulab Chand C R. No 382 -D of 1963 (Civil Revision No. 382 -D of 1963) took the view that no revision is competent even in the case where the objection as to Court -fee has been sustained. Harnam Singh J. in Smt. Anguri Devi v. Gurnam Singh, (1950) 52 PL R. 336 had taken a contrary view. Harnam Singh J.'s view finds support from the various decisions of the Patna, Bombay, Nagpur, Madhya Pradesh and Calcutta High Courts These decisions are Ramkhelawan. Sabu v. Bir Surendra Sahi : A I.R. 1938 Pat. 22, Mahadeo Gopal Pendse v. Hari Watnan Bhate, I. L.R. 47 Bom. 350=A.I. R. 1945 Bom. 336, Bandurang Mangal v. Bhejalu Usanna, A.I.R. 1949 Nag. 37, Laxmi Narayan v. Ram Ram Sarup, A I.R. 1957 M. P 173 and Sailendra Nath Kundu v. Surendra Nath Sarkar, A I R. 1935 Cal 279. We are clearly of the view that the decisions of Falshaw, C.J. cannot be sustained either on principle or authority. The decision in Dr. Harbans Lal Khosla's case(supra) proceeded on the basis of the decision of the Supreme Court in Keshaardeo Chamria v. Radha Kishan Chamria, A.I.R. 1953 S C. 23, wherein the limits of the High Court's power under section 115 of the Code of Civil Procedure have been elaborately stated. The other ground taken was that "the High Courts should be particularly reluctant to interfere, since if only one further step is taken and, the plaintiff having failed to value his suit properly and pay the necessary court -fee, the plaint is rejected, that order is appeasable and there does not appear to me to be any reason at all why a plaintiff should be allowed to challenge the preliminary order in revision".

(2.) MOREOVER , it cannot be denied that by wrongly deciding the question of court -fee the Court may in certain circumstances refuse to exercise jurisdiction in a matter in which it has undoubted jurisdiction or in other cases it may act illegally or with material irregularity in the exercise of its jurisdiction. To us it appears that the better view of the matter is as has been taken by the various other High Courts in India, namely, that an order accepting the objection as to Court -fee and valuation raised by the defendant, if erroneous can be corrected in revision. This disposes of the first ground on the basis of which Falshaw C.J. took the contrary view.

(3.) IT appears to us that on the allegations in the plaint, a suit for pure declaration is competent. A prayer for the cancellation of the document is purely a surplus age and can be ignored for purposes of Court -fee and Suits Valuation Act. If it is found as a fact that there is no partition nothing remains to be cancelled. The prayer as to the cancellation of the document is neither here nor there. What has actually not happened needs no displacement as it does not exist. This matter is not bare of authority. The proper course therefore is to refer to the decided cases which have a direct bearing on the matter.