- (1.) THIS is a revision application under Section 115 of the Code of Civil Procedure against the finding dated 8-7-1972 given by the learned First Additional Civil Judge, Dehradun on issue No. 9 relating to payment of court-fee.
(2.) BRIEFLY stated, the facts giving rise to this revision application are that the plaintiffs opposite parties Nos. 1 and 2 are the owners of property bearing municipal No. 194, Rajpur Road, Dehradun. The defendant No. 1 agreed to purchase this property for a sum of Rs. one lac. Out of the said amount, a sum of Rs. 41,000 remained unpaid. Therefore, the plaintiffs filed a suit for the recovery of Rs 41,800 with interest pendente lite and future. The suit was valued at Rs. 41,800 and a sum of Rs. 3,557.50, was paid as court-fee thereon. Later on the plaintiffs got their plaint amended and in the alternative claimed possession over the property in suit. The defendant contested the suit inter alia on the ground that the court-fee paid was insufficient. Issues were framed on 24-3-1971 and issue No. 9 read as follows:- "Whether court-fee paid is sufficient?" The issue of court-fee was taken up first and for its disposal the learned lower court held on 12-7-1971 that the suit is to be valued according to the market value of the property and this will have to be determined in accordance with the provisions of Section 7 (v) 1 (c) and sub-section II of Section 7 of the Court-fees Act. The plaintiffs moved an application 66-C/2 for issue of commission under Section 9 of the Court-fees Act for determining the value of the property. The application was allowed and a Commissioner was appointed for this purpose. The Commissioner valued the property at Rs. 14,608. The defendant filed objections. By means of his order dated 11-3-1972, the learned Civil Judge held the value of the property to be Rs. 14,608. The plaintiffs were directed to amend the plaint in the light of the said finding within the time allowed. Accordingly the plaintiffs got the plaint amended. The valuation of the suit still remained Rs 41,800 but it included Rs. 14,608 the value of the property. Thereafter on 8-7- 1972, issue No. 9 was disposed of with the following finding:- "The valuation has been amended as directed. The Munsarim reports that no court-fee is payable. Issue No. 9 is therefore, decided in the negative. Fix 28-8-72 for final hearing." It is against this finding that the defendant No. 1 has come up in revision. The learned counsel for the plaintiffs opposite parties has argued that the revision application is legally not maintainable because the question of payment of court-fees is a matter between the State and the plaintiffs and the defendant is not affected or prejudiced by any order that may be passed in that connection. The learned counsel for the revisionist has repelled this contention on the ground that the property in suit has to be valued according to the allegations made in the plaint. In the instant case, the allegations made in the plaint show that the property was worth Rs. one lac. Therefore, there was no question of appointing a Commissioner. This was done in contravention of Section 9 of the Suits Valuation Act and was illegal. There was also a material irregularity in inviting a report from the Commissioner about the value of the property.
(3.) I have examined the whole position and there can be no manner of doubt that the valuation is to be made on the basis of the allegations made in the plaint and not on the basis of assertions made in the written statement. The question however, for consideration is whether in a case of this nature, the defendant is entitled to file a revision, if so when? This question at first came up for consideration in the case of 'Abdul Ghani v. Vishunath', 1957 All LJ 105 = (AIR 1957 Pat 337) in which a Division Bench of this Court observed:- "The question what was the valuation of the property in suit and what was the court-fee payable on the valuation was a question that arose in the suit itself and was not a separate case. Any decision given on the question could not be said to be deciding a case separately from the suit itself and, therefore, would not be liable to be revised under Section 115, C.P.C. ;