RANI KULANDAI PANDICHI ALIAS KULANDAIVELU NACHIAR Vs. INDRANRAMASWAMI PANDIA THALAVAN (LATE A MINOR NOW DECLARED A MAJOR AND HIS GUARDIAN DISCHARGED)

JUDGEMENT

(1.) This revision petition arises out of an order of the Subordinate Judge calling upon the plaintiffs to amend the valuation in the plaint and to pay additional court-fees. The suit was to set aside the compromise and the rajinama decree passed in O.S. No. 35 of 1917. O.S. No. 35 of 1917 was filed by the present plaintiffs who claimed to be entitled to the zamindari of Thalavankottai. The prayers in the plaint were for possession of the properties in the schedules to the plaint with past and future mesne profits and in the alternative for maintenance at Rs. 250 a month and past maintenance. The suit was valued at Rs. 1,00,000 and a court-fee of Rs. 2,300 was paid. The suit was compromised and a rajinama decree was passed. By the rajinama the plaintiffs withdrew their claim in respect of the immoveable properties and got a decree for maintenance at Rs. 50 a month for each of them and also residence. It was recited in the rajinama that the claim for arrears of maintenance has been satisfied. A decree was passed in terms of the rajinama and it is to set aside this decree that the present suit has been filed. The question is whether stamp duty has to be paid on the claim as made in O.S. No. 35 of 1917 or only on the reliefs which the plaintiffs claim in the present suit and this turns on the construction of Section 7, Section (iv)(a) of the Court Fees. Act as amended.

(2.) A preliminary objection has been taken as to the maintainability of the Civil Revision Petition on the ground that an appeal would lie against an order dismissing the suit if court-fee was not paid. We are unable to uphold this contention. We think that where a Judge on an erroneous view of the court-fee payable refuses to proceed with the suit until the proper court-fee is paid, he fails to exercise jurisdiction as a party is entitled to have his case tried if he paid the court-fee. In Sudalimuthu Pillai V/s. Sudalimuthu Pillai (1922) 17 L.W. 623 Oldfield, J., held that in such cases the provisions of Section 115, Civil Procedure Code, have been complied with. After negativing the contention that a conditional order, the non-compliance of which would entail the dismissal of the suit, is not revisable under Section 115, the learned Judge observes: Generally it is impossible to hold that an order directing the dismissal of an appeal in case the payment is not made is not a refusal to exercise the jurisdiction in that appeal.

(3.) In Dodda Sannekappa V/s. Sakrawa (1916) 36 I.C. 831 it was held by Srinivasa Aiyangar, J., that in a suit for a declaration that certain transactions are not binding on the plaintiff, he is entitled to put his own valuation on the relief which he seeks, that the High Court can interfere in revision with an erroneous order for payment of deficient court-fee and that it is not necessary that the plaintiff should wait for the dismissal of the suit by disobeying the order and then move the High Court by way of appeal or revision. The learned Judge observes: A preliminary objection was taken by the respondent's Counsel that T should not interfere at this stage, but that the plaintiff should wait for a dismissal of his suit by disobeying the lower Court's order and then come up by way of appeal or revision.