JUDGMENT
Pandey, J.
1. The question for consideration in this appeal relates to sufficiency of Court-fee paid on the memorandum of appeal. It arises in this manner. The appealing plaintiff brought a suit claiming Rs. 15,000 as arrears of salary against a Secretary to the Union of India, the State of Madhya Pradesh and others. It transpired that the plaint was rejected under Order 7, Rule 11(d) of the Code of Civil Procedure on the ground that notice under Section 80 of the Code was not served either on the Secretary to the Union of India or the State of Madhya Pradesh. Thereupon, the plaintiff filed this appeal challenging the order of rejection of the plaint and paid on the memorandum of appeal a court-fee of Rs. 7/8/- only.
2. The learned counsel for the plaintiff made the point that, in a case like this, the plaint as a whole ought not to have been rejected and the suit should have been allowed to proceed against defendants other than those to whom a notice under Section 80 of the Code had to be given. For this view, reliance is placed upon Shankarrao Balaji v. Shambihari AIR 1951 Nag 419, Mst. Chandani v. Rajasthan State, AIR 1962 Raj 36 and Ramcharan v. Custodian Evacuee Property, AIR 1964 Pat 275. We are inclined to think that that course could have been followed in this case. The fact, however, is that it was not adopted and the question we have to consider is what court-fee ought to be paid on a memorandum of appeal filed against an order rejecting a plaint on the ground of non-compliance with the requirements of Section 80 of the Code.
3. It is argued that the rejection of a plaint is, as such, not a decree but is, by virtue of the definition in Section 2 of the Code, deemed to be a decree and, in that sense, it is treated in the same way as the determination of any question under Section 47 or Section 144 of the Code. The further submission that, even for purposes of court-fee, the rejection of a plaint should be similarly treated, cannot be accepted. The Court-fees Act, 1870, is a fiscal statute and, while the one is covered by a specific provision, the another cannot be regarded as so covered by analogy. So, in Apparao Sheshrao v. Mt. Bhagubai, AIR 1949 Nag 1, the Full Bench observed:
“It is obvious that the matter falls to be governed by Schedule I, Article 1, Court-fees
Act and not by Schedule II, Article 11. This latter Article refers to a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. By virtue of Section 2(2), Civil Procedure Code, the rejection of a plaint amounts to a decree and therefore this Article has no application to such a case.”
4. The counsel for the appellant further submits that, in any event, this appeal cannot be treated for purposes of court-fee as on par with an appeal from a decree which completely and finally determines the rights of the parties. It is pointed out that, in a case like this, there is no decree but the order of rejection of the plaint is deemed to be a decree by fiction. What is more, as provided by Order 7, Rule 13 of the Code, the order of rejection of the plaint, far from being a conclusive determination of the rights of parties, permits the plaintiff to file a fresh suit on the same cause of artion. In this connection, reliance is placed on the following observations of the Full Bench case of AIR 1949 Nag 1 (supra):
“We have no doubt in our mind that under Schedule I, Article 1, Court-fees Act the Court-fee must always be ad valorem on the subject-matter in dispute unless it is incapable of valuation. In other words, the court-fee has always to be ad valorem unless for the special reasons given in Schedule I, Article 17, the appeal can be brought on fixed fee.” In the present case, therefore, the question resolves itself into this;
‘Has the ad valorem court-fee to be paid on the full value of the claim or the difference between the court-fee paid and the court-fee demanded?’
In our opinion, the latter is the amount on which court-fee can be demanded. It is well known that the Court-fees Act is a fiscal measure and like all fiscal measures, must be strictly construed. Schedule 1, Article 1, itself requires that attention should be paid to the subject-matter of the dispute. In our opinion, the subject-matter in dispute in so far as the appellant is concerned is the extra court-fee demanded of him by the Court. The whole of the claim which he prefers in the Court below is never dismissed when the plaint is rejected. This is clear from the definition of decree given in Section 2(2), Civil Procedure Code read with Order 7, Rule 13 of the Code. For the purposes of the Civil Procedure Code, the rejection of a plaint is deemed to be a decree because the definition given in Section 2 includes the rejection of a plaint, but that does not mean that the rejection of a plaint is a conclusive determination of the rights of the parties.
Under Order 7, Rule 13, the aggrieved party can file another plaint on the same cause of action after paying the court-fee demanded. This shows that there is no conclusive determination of the rights ot the parties when the rejection of the plaint takes place. After the rejection of the plaint the unsuccessful plaintiff has two courses open to him. He can accept the decision of the trial Court and present a fresh plaint, or he can appeal against the order which amounts to a decree. In the second case the dispute involves only the demand for the extra court-fee and with the other alternative open to him it is not right to say that the dispute covers the entire controversy in the suit about which no decision has really taken place.” (Pages 2-3)
5. In the Full Bench case, AIR 1949 Nag 1 (supra), the plaint was rejected under Order 7, Rule 11 (c) of the Code and it was held that the court-fee was payable under Schedule 1, Article 1 ad valorem on the value of the subject matter of appeal and that, in that particular case, the value of the subject-matter of appeal was the difference between the court-fee paid in the lower Court and the court-fee demanded there. So far as the rejection of a plaint under Order 7, Rule 11 (b) or (c) is concerned, the same view has been widely taken for the obvious reason that the valup of the subject-matter of appeal need not be the same as the one in the Court of first instance. In this connection, besides the cases noticed by the Full Bench, the counsel cited Atma Singh v. Mohan Lal, AIR 1959 Punj 387 and Navneethalal v. Manilal, AIR 1968 Ker 58. Here, however, we are concerned with the rejection of a plaint under Order 7, Rule 11 (d) of the Code on the ground that the suit appeared from the statement in the plaint to be barred by law in that notices requisite under Section 80 of the Code had not been served.
6. It is argued that the subject-matter of appeal against an order rejecting a plaint either under Rule 11(a) or Rule 11(d) of Order 7 of the Code is incapable of valuation. For this contention, reliance is placed upon certain observations made in Subarna Rekha v. Ramkrishna Deo, AIR 1968 Andh Pra 239. We are, with respect, unable to share that opinion because, in such cases, what has to be valued is the subject matter involved and not the abstract question of law raised for consideration in appeal. So, in a given suit, if a preliminary issue relating to limitation is tried and the suit is dismissed as barred by time, it cannot be successfully contended that, on the memorandum of appeal against the decree passed in the suit, court-fee should be paid only in regard to that question of limitation. Similar considerations arise if a suit is dismissed as disclosing no
cause of action or barred by any law. In our view, the subject matter of appeal is not different even in case of appeals against rejection of plaints under Rule 11(a) and (d) of Order 7 of the Code on these grounds because it will be readily seen that the real relief involved in either case is the same, namely, reversal of the decree or order of rejection of plaint having the effect of a decree and remand of the suit for trial on merits for the purpose of granting the reliefs claimed in the plaint. In our opinion, court-fee payable in this case is governed by Schedule I, Article 1 of the Act and it must be ad valorem on the subject matter in dispute in appeal which, as we have shown, is the same as that in the Court of first instance.
