B.D.GUPTA, J. - (1.) THIS is a plaintiffs appeal, under S. 6-A of the Court Fees Act, against an order directing him to pay additional Court fees on the plaint giving rise to Suit No. 14 of 1956 in the Court of Civil Judge, Jaunpur.
(2.) IT appears that one Babu Durga Prasad who owns considerable property, died leaving a widow who also died heirless whereafter the properties of Durga Prasad were taken over by the Collector, Jaunpur, as Administrator under the Bengal Regulation Act, by an order dated 6th February, 1950. Suit No. 4 of 1950 was thereafter instituted by one Radhey Lal for a declaration that Radhey Lal was the owner in possession of the properties, given at the foot of the plaint, which consisted of properties which belonged to Rai Bahadur Durga Prasad, as also some properties alleged to have constituted the Stri Dhan properties of his widow Rani Dhan Dei Kunwar. Some other properties were also included on the assertion that they had been acquired by Rani Dhan Dei Kunwar from the income of the properties belonging to Rai Bahadur Durga Prasad. This suit, to which the present plaintiff-appellant, was a party was decreed, ex parte, by a judgment of the learned Civil Judge D/-5-5-1955. Thereafter, on the 7th July, 1956, Suit No. 14 of 1956 was filed by the plaintiff-appellant in which those arrayed as defendants included the heirs of Radhey Lal who had meanwhile died. It is not accessary to set forward in detail the various allegations set forth in the plaint. Suffice it to say that the case set forward by the plaintiff-appellant was that, during the period of her possession as the widow of Rai Bahadur Durga Prasad, Rani Dhan Dei Kunwar was pleased with the services of the plaintiff and appointed the plaintiff her heir in respect of her Stri Dhan properties, that after the death of Rani Dhan Dei Kunwar in the 22nd November, 1959, the District Magistrate, Jaunpur, took over possession, that Radhey Lal had filed some claim before the Collector and also filed Suit No. 4 of 1950 in the court of the Civil Judge, Jaunpur wherein he had prayed for a declaration to respect of part of the properties mentioned at the foot of the plaint wherein the present plaintiff appellant had put in his defence, that during the pendency of this suit a compromise had been arrived at between the present plaintiff-appellant and Radhey Lal, and even a memorandum of the terms of that compromise was drawn up in writing, and Radhey Lal promised to have suit No. 4 of 1950 decided in terms of the compromise. The further allegation in the plaint it that Radhey Lal, instead of getting the suit decreed in terms of the compromise, took advantage of plaintiffs illness and obtained an ex parte decree in his favour whereby the suit of Radhey Lal was decreed in its entirety. On the further assertion that the aforesaid ex parte decree, dated 5th May, 1955, had been obtained by Radhey Lal as a result of fraud, and that that decree was invalid and ineffective as against the plaintiff, the relief claimed was a declaration that the plaintiff was owner of certain properties mentioned at the foot of the plaint, to the extent at a 5/16th share. In the alternative it was also prayed that, if the plaintiff was not found to be entitled to the aforesaid relief, it be declared that the plaintiff was the owner of certain properties detailed at the foot of the plaint, which constituted Stri Dhan properties of the widow of Rai Bahadur Durga Prasad, and that the decree in suit No. 4 of 1950 did not in any manner, affect the rights of the plaintiff. The valuation of the suit for purposes of jurisdiction was stated to be Rs. 5,99,503/6/3, but a Court-fee of Rs. 18/12/- as for declaration only, was paid. The Munsarim of the Court does not appear to have raised any objection that the Court-fee paid was insufficient, but the Inspector of Stamps reported that the Court-fee paid was insufficient because, in his opinion the relief claimed in the suit involved cancellation of or adjudging void or voidable a decree for money or other property having market value. The opinion expressed by the Inspector of Stamps was that the suit was clearly covered by Section 7 Sub-Section (iv-A) of the Court Fees Act as amended by the U.P. Legislature. The report also stated that as the plaintiff-appellant was a party to the decree in suit No. 4 of 1950, court-fee was chargeable according to the value of the subject-matter. It was further stated in the report that the value of -/5/-share in this suit came to above Rs. 1,87318/- on which a court-fee of Rs. 3528/87 was chargeable and that the aforesaid amount should be realised Objections to this report were filed by the plaintiff and, by the order of the learned Civil Judge dated 6th August, 1957 the plaintiff was ordered to amend the plaint and pay the deficiency in court-fee within one month from the date of the order "according to the above order". It is obvious that by the expression "above order" the learned Judge means the earlier part of that very order. The earlier part of the order contained the following observations. "The suit is for a declaration about the title of the plaintiff with respect to certain property and for cancellation of a decree valuing (valued) at more than Rs. 29 lakhs. The plaintiff must pay the Court fee on the valuation of the subject matter of the decree which is being sought to be cancelled."
(3.) THE impression created on us on reading the order under appeal is that, even though the Inspector of Stamps had reported demand of court fee in a sum of Rs. 3528/8/- on the value of -/5/- annas share which, according to the Inspector of Stamps, come to Rs. 1,87318/- only, the learned Civil Judge directed the plaintiff to amend the plaint and pay Court fee on the basis that the decree, cancellation whereof was alleged to have been involved, was in respect of property valued at more than Rs. 29 lakhs. The order, however, is vague and does not make it clear that the learned Civil Judge intended that the plaintiff should pay Court-fee on -/5/- annas share on the basis that the value of the entire property was Rs. 29,00,000/-. The amount which the plaintiff was required to pay within a month from that order has not been specified in that order. In these circumstances we were inclined, at one stage, to set aside the order of the learned Civil Judge, and remand the case back to the Court below for a reconsideration of the matter and passing of a clear order, keeping in view the report of the Inspector of Stamps. Learned counsel for the parties, however, suggested that, though the order of the learned Civil Judge was unfortunately vague, the real controversy turned round the question whether the suit of the plaintiff was covered by Section 7(iv-A) of the Court Fees Act, and that our decision on this controversy may be given in order to avoid unnecessary delay in the progress of the suit. We have, accordingly, heard learned counsel for the parties on the question whether the Court-fee on this plaint is chargeable under Section 7(iv-A) of the Court Fees Act.;