MOTILAL Vs. JAGDISH PRASAD SHARMA
HIGH COURT OF RAJASTHAN
JAGDISH PRASAD SHARMA
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JAGAT NARAYAN, J. -
(1.)THIS is a revision application by three defendants who are contesting the present suit instituted on 10-10 64 against them and against some other defendants. The allegation of the plaintiff is that the New Cotton & Wool Pressing Factory, near Railway Station, Beawar, is a partnership concern in which the plaintiff and the defendants are partners. It is alleged that the partnership started in 1886 87 A, D. and dissolution of partnership took place on 31-7 64. The suit is for a declaration that the partnership was dissolved on 31-7-64 and for rendition of accounts. In the alternative the plaintiff has prayed that in case the court comes to the finding that the partnership was not dissolved on 31-7-64 it may be decreed for dissolution of partnership. Para 17 of the plaint runs as follows : "that for purposes of court-fee and jurisdiction the suit is at present valued at Rs. 5000/- and court-fee thereon is paid and the plaintiff undertakes to pay further court-fee when his share of the partnership assets is ascertained and determined by the learned court. "
(2.)THE contesting defendants filed a written statement in which they did not allege that the suit had been undervalued. On the contrary the reply to para 17 of the plaint runs as follows : "that with respect to para 17 it is submitted that the court-fee has been unnecessarily paid with a view to harass the defendants. "
Issues were framed on 3-10-66 and on 3-3-67 the applicants got their written statement amended, but even then no amendment was sought so as to introduce an allegation that the suit had been undervalued.
On 15 2-68 a miscellaneous application was filed on behalf of the applicants in which it was alleged that the suit had been undervalued. This application was rejected on the finding that the suit had been properly valued. Against that order the present revision application has been filed.
On behalf of the plaintiff a preliminary objection has been taken that it was not open to the applicants to agitate the question of improper valuation of the suit without amending their written statement. I have heard the learned counsel for the parties about this preliminary objection and I am satisfied that it must be upheld. The relevant provisions of the Rajasthan Court-Fees and Suits Valuation Act 1961 are reproduced below : Sec. 10. "statement of particulars of subject-matter of suit and plaintiff's valuation thereof - -In every suit in which the fee payable under this Act on the plaint depends on the market value of the subject-matter of the suit, the plaintiff shall file with the plaint a statement in the prescribed form of particulars of the subject-matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint. " Sec. 11. Decision as to proper fee.- (1) In every suit instituted in any Court, the Court shall before ordering the plaint to be registered, decide on the materials and allegations contained in plaint and on the materials contained in the statement, if any, filed under sec. 10, the proper fee payable thereon, the decision being however subject to review, further review and correction in the manner specified in the succeeding sub-sections. (2) Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908 ). If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not so amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit. (3) A defendant added after issues have been framed on the merits of the claim may, in the written statement filed by him, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant on the merits of the claim, and if the Court finds that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall follow the procedure laid down in sub-sec. (2 ). (5) All questions as to value for the purpose of the determining the jurisdiction of courts arising on the written statement of a defendant shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the first Schedule to Code of Civil Procedure, 1908 (Central Act 5 of 1908 ). "
It is true that court cannot proceed with the trial of the suit without being satisfied that the court-fee paid is sufficient. Sec. 11 (1) lays down that the court shall apply its mind to the question as to whether the court-fee paid is sufficient before the plaint is registered. This decision is subject to review, further review and correction, but only in the manner specified in the succeeding sub-sections. These sub-sections are sub-secs. (2) and (3 ). Sub-sec. (2) is applicable to the present defendant. It is open to a defendant before filing a written statement in reply to all the allegations in the plaint to take a plea that the suit has been undervalued and the court-fee paid is insufficient. In that case the court would be bound to decide the question as to whether the suit has been properly valued. But once the written statement has been filed the only manner in which the plea can be taken is by amending the written statement. No amendment of the written statement has been sought on benhalf of the applicants yet. As such the question of the suit being properly valued or not could not be determined by the trial court, It is only after the applicants get their written statement amended that the question will be decided by the trial court.
After the written statement is amended the trial court shall rehear the parties and decide the question afresh.
In view of what has been said above, the revision application, is dismissed with costs. .
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