- (1.) STAPLES , A.J.C. 1. This an appeal by the defendants against the order of the District Judge, Hoshangabad, in an appeal from an order of the Subordinate Judge, Second Glass, Sohagpur, returning a plaint for presentation to the proper Court. The suit was brought by the respondent Lala Shamlal for recovery of tenancy land, which he alleged was leased to him by appellant 1, Mt. Bhagobai, the malguzar of the village. Appellant 2 Brijlal was joined as a defendant as being in possession of the land in suit. An objection with regard to court-fees and jurisdiction was raised, and the trial Court framed the following three preliminary issues : 1. What is the market value of the land in suit ? 2. Whether or not the plaint has been properly stamped ? 3. Whether or not this Court has jurisdiction to try this suit ?
(2.) ON these issues the Subordinate Judge found that the market value of the land in suit was Rs. 6,300, that the plaintiff has not paid proper court-fees, that he must pay ad valorem court-fees and that the value for the purposes of jurisdiction was Rs. 6,300. As the Judge only took up cases up to Rs. 2,000, he had no jurisdiction to try the suit. He however did not return the plaint for presentation to the proper Court on these findings, but he directed the plaintiff to make up the deficiency in court-fees by 23rd December 1931. On that date the plaintiff's pleader asked for further time to pay the deficient court-fees and time was extended up to 15th January 1932. Again further time was asked for and was granted until 30th January. On that date the plaintiff, who appeared in person, stated that he was not willing to pay the deficient court-fees, and the Judge rejected the plaint under Order 7, Rule 11, Civil P. C. The lower appellate Court has held that the Subordinate Judge was wrong in demanding payment of the deficient court-fees after he had held that he had no jurisdiction and that therefore he was wrong in rejecting the plaint for default. The District Judge further held that court-fees were payable under Clause (xi) (e), Section 7, Court-foes Act, and not, as held by the Subordinate Judge, under Clause (v) of that section. He therefore held that the suit had been correctly valued both for the purposes of Court-fees and jurisdiction and remanded the case to the trial Court for disposal according to law. The defendants have now appealed against that order of remand. On the first question there is a conflict of authority. In the case reported in Kandasami Goundan v. Subbai Goundan AIR 1924 Mad 646 it was held that, where the question of valuation and deficient court-fees is raised, the Judge, if he holds that the court-fees paid are insufficient, should call upon the plaintiff to pay the proper Court-fees, giving him a reasonable time to do so ; and if the plaintiff then made default, the Judge should reject the plaint ; if, on the other hand, payment was duly made, the Judge should return the plaint for presentation to the proper Court. In Ganesh Tavanappa v. Tatya Bharmappa AIR 1927 Bom 257 however it has been held that a Court, which has no jurisdiction to try a suit has, technically speeking, no jurisdiction to dismiss it for non-payment of court-fees and that therefore, when a question of valuation is raised, the Court should determine that question and, if it finds that it has no jurisdiction, it should return the plaint for presentation to the proper Court, leaving it for that Court to enforce payment of the requisite court-fees. I incline to the view of the Bombay High Court and I am of opinion that the question of valuation and jurisdiction is one that should be determined at the earliest possible opportunity and that;, if the Court finds that it has no jurisdiction, it should at once return the plaint to the Court having jurisdiction and should not take any steps either to enforce payment of court-fees or in any other matter. I would therefore find that the order of the Sub-Judge Second Class, requiring the plaintiff's to pay additional court-fees and on their failure to do so rejecting the plaint, was ultra vires and can-not be upheld.
(3.) THE next question that remains to be decided is whether the view taken by the lower appellate Court is correct with regard to valuation for court-fees and jurisdiction. This depends on whether the suit is held to be one between landlord and tenant and therefore governed by Section 7, Clause (xi) (e), Court fees Act, or whether it is a suit for possession and governed by Clause (v) of that section. The trial Court held that it was not a suit between landlord and tenant, and court-fees were not correctly paid. The lower appellate Court however has held that it is substantially a suit between landlord and tenant and that it was therefore correctly valued. The District Judge has relied on the case reported in Co. vindakumar Sur v. Mohinimohan Sen , which quotes with approval a decision of this Court in Vithaldas v. Ghulam Ahmad AIR 1927 Nag 156. It may be noted however that in both those cases the suit was brought by a landlord against persons holding over, and it was held that they should be treated as tenants because at the date when the cause of action accrued they were tenants. I would refer at p. 359 of the Calcutta case, where a passage has been quoted from the Nagpur case with approval, and in which it has been laid down that the claim in a suit must be regarded with reference to the facts existing when the cause of action accrued, not to the state of things when the suit was filed.;