Mahomed Reza And Ors. vs Hubibul Hossein And Ors. on 8 September, 1881

Calcutta High Court
Mahomed Reza And Ors. vs Hubibul Hossein And Ors. on 8 September, 1881
Equivalent citations: (1882) ILR 8 Cal 192
Author: Mitter
Bench: Mitter, Maclean


Mitter, J.

1. (who, after stating the facts, continued as follows): It seems to be doubtful whether the order in question falls within the definition of the word ‘decree’ in Section 2 of the Civil Procedure Code. Section 2 says: “‘Decree’ means the formal expression of an adjudication upon any right, claim, or defence set up in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit on appeal.” The only way in which the order of the District Judge may be brought within the definition is by holding that it is an adjudication on the right of the plaintiff’s to have their suit heard upon the plaint with the court-fee which they have paid, and that it was that right which was determined by the District Judge. But it seems to me that it would be a strained construction of the words of the definition given above. However, without expressing a decided opinion on this point, it seems to us that the appeal must fail on the merits.

2. The law with reference to the payment of the court-fee in a case like this is to be found in Clause 5, Section 7 of the Court Fees Act. That clause says: “In suits for the possession of land, houses, and gardens, according to the value of the subject-matter; and such value shall be deemed to be, where the subject-matter is land,” and so on: the several sub-divisions of the clause show how different kinds of land are to be assessed for the purpose of the court-fee. Looking to those sub-divisions it appears to us that the present case comes within the first part of sub-division (a), which is to the effect, that “where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, and such revenue is permanently settled, then the stamp-fee is to be assessed on ten times the revenue so payable.” It is contended on behalf of the appellants that as the suit was not brought by the proprietor himself but by the mokuraridars, this clause does not apply. We are of opinion that there is no force in this contention. If it was the intention of the Legislature, that where a suit is not brought by a proprietor of an entire estate but by subordinate tenure-holders, such as mokuraridars, & c., there should be a different way of assessing the court-fee, that would have been clearly expressed in one of the clauses of this section. Referring to all the clauses, it is evident that there is no separate provision for a suit like the one which is now under our consideration,–that is, a suit by a subordinate tenure-holder. Therefore, it is clear that the present case comes within sub-division (a) of Clause 5, Section 7 of the Court Fees Act. It cannot be said that this is not a claim for land which forms a definite share of an estate paying annual revenue to Government, such revenue being permanently settled. All that is said in support of the order of the Munsif is, that the suit is not brought by the proprietor himself; but that is no ground for holding that the claim does not come within Section 7.

3. We are, therefore, of opinion that the order of the District Judge is correct. In conclusion, we would remark that the Munsif was clearly in error in directing the plaint to be rejected after having registered it and taken evidence upon the issues recorded by him. A plaint can only be rejected under Section 54 before it is registered.

4. The appeal is dismissed with costs.

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