NARAYAN TIWARI Vs. VASUDEO NARAYAN MISSIR

JUDGEMENT

(1.) The only point that arises for determination before us is whether the court-fee payable on the application for review in this case is one-half of the fee leviable on the plaint filed in the Court below or on the valuation of the reliefs sought in the application for review.

(2.) It is the admitted case of the parties that the judgment giving rise to the first appeal in this Court was delivered on 25th January, 1950, and as against that there was a review application filed in the same Court by the plaintiffs on 1st February, 1950, which was within ninety days from the date of the judgment. The subject-matter of the review was confined to two items, first, the mesne profit which was valued at Rs. 2,000/- and, secondly, the value of dalan and cattle shed which was assessed at Rs. 500/-, and accordingly on that valuation a sum of Rs. 144/6/- only was paid as court-fee on the application for review. The Court on hearing the parties allowed the application for review on 25th May, 1950. Thereafter there were two first appeals filed in this Court against the judgment of the trial Court. The one was by the defendants and that has been numbered as First Appeal No. 303 of 1950. That is still pending for disposal and it is that appeal which has given rise to the question of court-fee on the application for review. The other appeal which was numbered First Appeal No. 317 of 1950 was filed by the plaintiffs. That at present stands dismissed for default.

(3.) It may be stated here that on the valuation as mentioned in the plaint a court-fee of Rs. 684/8/-only had been paid thereon. In appeal, however, it transpired that the valuation given in the plaint was not correct. Accordingly this matter was sent down for further enquiry in the Court below. On enquiry it was found that the suit should have been correctly valued at Rs. 26,923/-and not at what was originally mentioned in the plaint. Further, what happened was that in the meantime before the filing of the application for review and after the institution of the suit, the Surcharge Amendment Act, 1948 came into force whereunder the surcharge on the fee payable had been increased at the rate of six annas per rupee. The Stamp Reporter accordingly in calculating the court-fee payable on the application for review has assessed the court-fee leviable on the plaint, firstly, on the increased valuation of the properties in suit and secondly at the rate which became leviable on the date when the application for review was filed and not at the rate which was enforceable on the day when the suit was instituted. And this when worked out comes to Rs. 1887/3/- as the sum leviable on the plaint for the purpose of assessing court-fee on the application for review. That means, according to him, a sum of Rs. 943/9/6 (i.e. half of Rs. 1887/3/-) should have been paid as courtfee on the application for review. But as out of it a sum of Rs. 144/6/- only was paid in the Court below, he has reported that the court-fee paid on the application for review is short by Rs. 799/3/6 and this deficit is payable in law by the plaintiffs. This report of the Stamp Reporter has been strongly challenged by the plaintiffs. Their contention is that the court-fee leviable on the application for review should be assessed on the valuation of the reliefs sought therein. In my opinion, so far as the contention advanced by the plaintiffs is concerned, that does not get any support from the language of Article 5 of Schedule 1 of the Court-fees Act, which, as admitted by both the parties, is applicable to the facts of this case. That Article reads as follows :