PREM CHAND JAIN,J. - (1.)MESSRS . Arjan Motors, Malout, through Shri Dilbhajan Singh have filed this petition against the order of the learned Subordinate Judge, First Class, Muktser, dated 22nd January, 1974.
(2.)THE only point involved in this petition is whether proper court-fee has been paid by the plaintiff or not. The trial Court has held that the suit, as framed, is for a mandatory injunction and that proper court-fee has been paid. The contention of Mr. S. P. Goyal, learned counsel for the petitioner, is that the suit, as framed, is a suit simpliciter for possession and that the plaintiff was to pay ad valorem court-fee.
Mr. Diali Ram Puri, the learned counsel for the respondents, submits that, on the question of court-fee, the defendant has no right to come up in revision and that on such a point revision is not maintainable. In support of his contention, reliance is placed on the decision of their Lordships of the Supreme Court in Rathnavarmaraja v. Smt. Vimla, AIR 1961 SC 1299, wherein, on this aspect of the matter, it has been observed thus (at p. 1300):-

"the court--Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. However by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under S. 115 of the Code of Civil Procedure is strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. "
My attention is also drawn to a Full Bench decision of this Court in Krishan Kumar Grover v. Smt. Parameshri Devi. (1966) 68 Pun LR 54: (AIR 1967 Punj 389) wherein it has been held that no revision lies on behalf of a defendant against an adverse order passed on question of court-fee.
(3.)ON the other hand, Mr. S. P. Goyal, learned counsel for the petitioner, submits that in view of the latest decision of their Lordships of the Supreme Court in M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, a revision by a defendant on a question of court-fee does lie. The learned counsel has drawn my attention to the observations of their Lordships, which appear at page 2383 of the report and read as under-
" We venture to think that the High Court was labouring under a mistake when it said that the enquiry into the question whether the respondent was a pauper was exclusively a matter between him and the State Government and that the appellant was not interested in establishing that the respondent was not a pauper. Order 33, R. 6 provides that if the Court does not reject the application under R. 5, the Court shall fix a day of which at least 10 days' notice shall be given to the opposite party and the Government pleader for receiving such evidence as the applicant may adduce in proof of pauperism and for hearing any evidence in disproof thereof. Under O. 33, R. 9, it is open to the Court on the application of the defendant to dispauper the plaintiff on the grounds specified therein, one of them being that his means are such that he ought not to continue to sue as a pauper. An immunity from a litigation unless the requisite court-fee is paid by the plaintiff is a valuable right for the defendant. And does it not follow as a corollary that the proceedings to establish that the applicant-plaintiff is a pauper, which will take away that immunity, is a proceeding in which the defendant is vitally interested? To what purpose does O. 33, R. 6 confer the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is not a pauper unless the opposite party is interested in the question and entitled to avail himself of all the normal procedure to establish it? We can think of no reason why if the procedure for discovery is applicable to proceedings under O. 33, the appellant should not be entitled to avail himself of it. "