Limbaji vs Ahmed Bin Sayeed and Another

This is an appeal on behalf of the Plaintiff against the order dated 28-2-1951 of the District Judge, Parbhani, rejecting the plaint u/s 72, Hyderabad CPC for not making good the deficiency in court-fee within the time granted by the learned Judge.

The Appellant''s claim related to Survey No. 2 situate in Karadgaon, Parbhani Taluk. His case was that the said land, which once formed part of his watandari, was sold by his uncle to Ahmed Bin Sayeed, Respondent 1, with the resultant mutation of patta in favour of the vendee. The vendee in his turn being desirous of parting with .the land gave the Appellant first choice which ultimately culminated in a full-Hedged bargain of sale on 4th Amardad 1357F., for a consideration of Rs. 6000/- out of which Rs. 4000/- were paid as earnest money and the Appellant was put in possession of. the subject-matter of the suit.

The grievance on the part of the Appellant was that Respondent 1 in breach of his statutory duty to execute a registered sale deed conveyed the disputed plot to Rama, Respondent 2, and perfected the sale in the latte''s favour by executing'' and registering an instrument of sale on 6th Isfandar 1358F. On these facts, the Appellant prayed that

(a) the sale deed between the Respondents be cancelled,

(b) Respondent 1 be compelled to execute a conveyance in favour of the Appellant, and

(c) a declaration be made that the Appellant was entitled to get patta of the land mutated in his name.

In para 5 of the plaint, he valued the relief (b) at Rs. 2000/- being the difference of sale price payable to the vendor, and relief (a) was assessed at Rs. 50/-. For relief (b) he paid the fixed court-fee of Rs. 20/- and for relief (a) he did not pay any court-fee on the ground that it was of an ancillary character.

The checking clerk of the Court below brought to the notice of the District Judge the fact that the Appellant had not paid the court-fee for relief (c). The Appellant conceded to the objection and further paid the fixed court-fee of Rs. 20/-. The trial thereafter proceeded with an issue outstanding whether the suit was correctly valued and whether the court-fee paid was sufficient. The parties closed their case on 13-10-1950.

The final-arguments could not, for some reason or other, come off till 19-1-1951. On that date, the learned District Judge heard the arguments. He, however, in the first instance, confined his attention to the valuation of the suit and the court-fees paid by the Appellant. He held that the suit as framed was in substance a suit for specific performance of a contract of sale and it ought to have been valued according to the amount of consideration. He, therefore, ordered the Appellant to pay the requisite court-fee on Rs. 6000/- and from time to time granted adjournments to make up the deficiency.

The Appellant did hot take advantage of the adjournments granted to him and ultimately on 28-2-1951 it was contended on his behalf that at the evidence had been adduced and recorded and nothing more was required for final disposal of the case, it may be disposed of on the merits and the deficiency in court-fees may be recovered through the Revenue Department. The learned District Judge did not approve of the suggestion made on behalf of the Appellant and rejected the plaint with costs.

The learned advocate for the Appellant contended before us that since the suit was for securing the execution of a sale deed from the vendor, it cannot be said to be a suit for specific performance and therefore fell outside the scope of Clause 3 (Alif) of Section 4, Hyderabad Court-fees Act.

In support of the proposition that the suit wan of a declaratory nature, and the valuation put by the Appellant on that relief and the court-fees paid therefore was correct and sufficient, he relied on the cases of - ''Kashinath v. Syed Qamruddin 13 D LR 445 (A) and - ''Warnan Rao v. Syed Muhammed 29 D LR 310 (B). These authorities, no doubt, support the learned advocate in his contention.

But the learned advocate for the Respondent relied on the Full Bench case of -''Abdul Hameed v. Ram Rao Parotikar 38 DLR 50 (FB) (C), wherein the authorities cited on behalf of the Appellant have been expressly overruled. It has been held in that case that a suit for compelling the Defendant to execute a sale-deed was a suit for specific performance'' and fell within Clause 8 of Section 4, Hyderabad Court-fees Act and court-fee is to be paid according to the amount of consideration. We have fully studied the Full Bench case and we do not see any reason to differ from it.

In this view of the law, it can safely be said that the Appellant had undervalued the suit. Now Section 72, Clause (b), Hyderabad CPC provides that the plaint shall be rejected where the relief claimed is undervalued and the Plaintiff on being required by the Court to correct the valuation within a time fails to do so. It would thus appear that the learned District Judge on the finding he arrived at, could only order the Appellant to correct the valuation within the time fixed by him.

He could not, without getting the valuation corrected, call upon the Appellant to make good the deficiency in the court-fee. Such an order having regard to the provision of Section 72(c) could only be passed where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped. As the stage contemplated by Clause (c) of Section 72, Hyderabad CPC had not been reached, the order of the learned District Judge calling upon the Appellant to make good the deficiency in court-fees on pain of rejection of plaint was to say the least premature.

As already stated, the only order which could be passed was to call upon the appellant to correct the valuation. Unless and until the valuation is corrected under Clause (b) there could be no order under Clause (c).

For the reasons stated above, we allow the appeal, set aside the order of the Court below and direct it to proceed under Clause (b) of Section 72, Hyderabad Code of Civil Procedure, which section is in ''pari materia'' with Rule 11 of Order 7, Indian Code of Civil Procedure. The costs of this appeal will abide the result.