Mt. Zahur Bibi vs Sharifuddin Khan

Fazl Ali, J.—It appears that the opposite party having obtained a decree against the husband of the plaintiff sought to execute it by attaching 2� annas share in mauza Jasim tauzi No. 7271 which is claimed by the plaintiff as her property by virtue of a bai-mokasa deed dated 19th July 1923. The plaintiff preferred a claim in the execution case upon the basis of this deed, but her claim being rejected, she has now brought a suit for a declaration that she is the owner of the property and that the property is not liable to be attached in execution of the decree obtained by the opposite party, for confirmation of possession, and for an injunction restraining the opposite party from proceeding; against the disputed property. At the trial an issue was raised on the question of the inadequacy of the court-fee and the jurisdiction of the Munsif to try the suit, but the Munsif decided the issue in favour of the plaintiff and decreed the suit. The opposite party then preferred an appeal and the appellate Court has set aside the decree of the trial Court and remanded the case to that Court for disposal according to law with the direction that if the defendant succeeds in satisfying the Court that the market value of the property exceeds the pecuniary jurisdiction of the Court, the plaint should be returned for presentation before the proper Court. The present application is directed against this order and it is assailed on two grounds, namely: (1) that the appellant Court acted with material irregularity in setting aside the decree of the trial Court and remanding the case for proper disposal under S. 151 inasmuch as even if a remand was found to be necessary the Court might have proceeded under O. 41, R. 25, and (2) that the decision of the appellate Court in so far as it has held that the court-fee was payable in the suit upon the market value of the property is wrong.

It appears to me that in any event the first contention advanced on behalf of the petitioner must be given effect to. It has been repeatedly pointed out by this Court that the appellate Court ought not without sufficient cause sot aside a decree of the trial Court and order a re-trial in cases in which it is possible to deal with the matter effectively under O. 41, R. 25: see Kamla Prasad Sahu v. Nawal Kishore Prasad Sahu, 1933 Pat 706 = 148 IC 167. It is obvious that once the parties have already been through a protracted trial a fresh trial should be ordered only when no other course is open to the Court to give adequate relief to the aggrieved party and it is only when the Court has exhausted its powers under the specific provisions of the CPC that it can fall back upon the residuary power with which it has been vested under S. 151, Civil P.C. It appears to me therefore that the order of the Court below setting aside the decree of the trial Court and remanding the case to that Court for fresh trial must be set aside.

The question still remains as to how the appellate Court it now to proceed. Before I deal with this question it is necessary to express my views very briefly upon the second point which has been raised on behalf of the petitioners. There can be no doubt upon reading the plaint that upon the plaint as it stands the case falls under S. 7 (iv) (c), Court-fees Act, under which the court-fee payable in the suit is according'' to the amount at which the, relief sought is valued in the plaint or the memorandum of appeal. Now, in consequence of a pernicious practice which was found to be growing among the litigants of valuing their suit arbitrarily, it had to be repeatedly pointed out by the Calcutta High Court as well as this Court that although it is for the plaintiff to state the amount at which he values the relief sought, yet it is open to the Court, if a question is raised as to the true valuation, to determine such question and in any event the value sought to be put by the plaintiff must be a reasonable one. It cannot however be laid down as a universal rule that in all such cases the plaintiff will have to pay an ad valorem court-fee on the value of the properties. In this particular case one cannot entirely overlook the fact that the decree in the execution of which the disputed property is sought to be sold is only for a sum of Rs. 500 and the question is whether the plaintiff should be called upon to pay a court-fee on a sum of Rs. 18,000, at which the property is sought to be valued by the defendant in order to prevent the property from being attached in execution of a decree the value of which is only Rs. 500.

It is pointed out by the learned advocate for the opposite party that it was to meet a situation like the one which has arisen in this case that it has been provided by Art. 17, Sch. 2, Court-fees Act, that where a suit is brought to set aside a summary decision or order of the Civil Court, the court-fee payable is Rs. 15 only. Unfortunately however owing to lack of proper advice or for other reasons, in a large number of suits which are instituted under O. 21, R. 63 the reliefs sought are not only the reliefs contemplated by that provision of the Code, but other reliefs which are wholly redundant. This adds to the difficulties of the Courts and necessitates a protracted inquiry as to the question of proper court-fee payable. In this Court the learned advocate for the petitioner prayed that an opportunity might be given to his client to make suitable amendments in the plaint so that the reliefs which are not quite necessary might be abandoned. In my opinion, this prayer should be made to the Court below and I have no doubt that it will give due consideration to the matter. The Court below may, even after the amendment of the plaint is allowed, remand the case under O. 41, R. 25 and then dispose of the whole case according to law. No further directions seem to be necessary as it does not appear to be desirable to fetter the discretion of the appellate Court.

I would therefore allow this application, set aside the order of the Court below and remit the case to that Court for disposal according to law in the light of the remarks made above. Costs of this application will abide the result. Hearing fee one gold mohur.