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Civil Revision No. 182 of 1984, decided on 3rd December, 1985.

‑‑ S. 115‑Revision, competency of ‑‑Demanding additional court fee on plaint‑Effect‑Order demanding court‑fee on plaint if not complied with would non‑suit plaintiff‑Such order not being in favour of plaintiff, held, was in nature of "case decided' and revision was competent in circumstances.

Messrs Gupta & Co v. Messrs Kirpa Ram Brothers A I R 193S All. 620 ; Fazal Muhammad v. Muhammad Usman P L D 1970 Lah. 560 ; P L D 1962 Pesh. 156 and S. Zafar Ahmad v. Abdul Khaliq P L D 1964 (W. P.) Kar. 149 ref.

‑ S. 2‑Civil Procedure Code (V of 1908), S. 115 & O. I, r. 3 Filing of one suit against several defendants claiming separate amounts‑Determination of court‑fee‑Where several suits could be instituted for each one of amounts claimed against defendants, each item of compensation whereof being below exempted amount, plaintiff would not have been liable to pay court‑fee‑Mere fact of taking advantage of O. I, rr. 1 & 3, C. P. C., held, would not deprive plaintiffs of benefits to which such plaintiff would be otherwise entitled under provisions of Ordinance XIV of 1978‑High Court in exercise or revisional jurisdiction set aside order of Lower Court demanding additional court‑fee in circumstances.‑[Court‑fee].

A I R 1954 Mad. 594 ; A I R 1953 Mad‑ 881 ; A I R 1935 Cal. 573 ; A I R 1973 Pat. 356 and A I R 1935 Cal. 573 ref.

Ava A. Cowasjee and others v. Nasreen Nizam Shah and others 1984 C L C 2705 fol.

Mian Muhammad Younis Shah for Petitioners.

Khan Bahadur Khan for Respondents.

Date of hearing : 25th November, 1985.

‑The facts relevant to this revision petition are that Arbab Ghulam Ali Khan and others (petitioners) instituted a suit against Arbab Muhammad Hussain and others (respondent.) seeking a declaration that in the Shamilat land of village Tehkal Bala measuring 7264 Kanals 18 Marlas they were entitled to 2/3 share as the legal hers of Abdullah Khan and were also entitled to the same share in the compensa tion awarded by the Collector Land Acquisition and in the remaining Shamilat of the village they were entitled to I/3 share. They also prayed for a permanent injunction that the defendants may be restrained from interfering in their rights Certain specific amounts of the compensation from each one of defendants 1 to 21 were also claimed which they had received from the Collector Land Acquisition. The value of the suit for the purposes of court‑fee was fixed by the plaintiffs at Rs. 1,12,400. They also paid court‑fee on the reliefs regarding declaration and injunction but no court‑fee was paid on the relief whereby specific amounts were claimed from each one of defendants 1 to 21 as every item of the compensation fell below Rs. 25,000. On 15‑5‑1984 the learned trial Court, after hearing the parties on the question of court‑fee, ordered that the value of the suit for the purposes of court‑fee should also have been fixed at Rs. 1,12,400 and since the total amount of the compensation claimed in the plaint exceeded Rs. 25,000 the plaintiffs were bound to affix the court fee thereon. The aforesaid order of the learned Senior Civil Judge, Peshawar is impugned in this revision.

2. The learned counsel for the respondents raised a preliminary objection about the competency of the revision on the ground that the impugned order of the trial Court demanding additional court‑fee was not a case' decided within the meaning of section 115 of the Civil Procedure Code and hence no revision was competent. Reliance is placed on a Full Bench decision to Messrs Gupta & Co. v. Messrs Kirpa Ram Brothers (A I R 1934 All. 620) and Fazal Muhammad v. Muhammad Usman (P L D 1970 Lah. 360). In the former case it was held than. a mere decision. given by Court in the trial of a suit as to the amount of the court‑fee payable does not amount to a case decided" nor is it necessarily an irregularity in procedure or illegality or a refusal to exercise jurisdic tion and, therefore, no revision on such a decision is competent. However, it may be mentioned that after the aforesaid Full Bench decision it was held in A I R 1949 Nag. 4. by placing reliance on a Full Bench decision in 1938 Nagpur 122, that the rejection of the plaint hat not yet taken place though the learned Judge expressing himself inaccurately said that he has rejected the plaint and that unless the court‑fee is paid the suit will also be rejected. Since the rejection of the plaint ha not taken place under Order VII, rule 11, C. P. C , a revision was competent under dictum of the Full Bench reported in A I R 1938 Nag. 122. The application for revision was, there fore, allowed. Reference can also be made to A I R 1949 Nag‑ 37, wherein it was held that an order demanding additional court‑fee is revisable and this is bled on the principle that unless court‑fee demanded is paid, there is a refusal on the part of lower Court to exercise jurisdiction which is vested in it to decide the suit. Consequently, the question of jurisdiction is involved and if the case is decided against the plaintiff, it is revisable under suction 11.5, C.P.C. The other case reported in P L D 1970 Lah. 560 relied upon is also of no help to the learned counsel of the respondents wherein by reference to P L D 1962 Pesh. 156 it was observed that a decision on the question of court‑fee given by a Court in favour of the plaintiffs is not a "case decided" within the meaning of section 115, C. P. C. and, therefore, such a decision is not revisable unless the said decision had resulted in the subordinate Court exercising jurisdiction not vested in it or in failure to exercise jurisdiction vested to it. It is obvious that in the case in hand the decision on the question of court‑fee was not given in favour of the plaintiffs and hence they have come in revision. Had the decision on the question of court‑fee been in favour of the plaintiffs, an objection to the competency of the revision could be taken as in that case the decision would not have amounted to a "case decided" within the meaning of section 115, C. P. C. Reference with advantage may also be made to a Full Bench decision reported as S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 (W. P.) Kar. 149) wherein it was held that an interlocutory order may amount to a "case decided" provided it is covered by the provisions of section 115 C. P. C. It was held that the word "case' as used in section 115 is intended to cover "any state of facts jurisdically considered", and not necessarily the whole cause or matter in dispute. Thus even an inter locutory order would be revisable if the ingredients of section 115, C. P. C, are satisfied. If the Court acts illegally or with material irregularity in determining the question of court‑fee and calls upon the plaintiffs to pay additional court‑fee which he is not legally bound to pay, there could be a ease for interference in revision. In the case in hand. the order demanding additional court‑fee on the plaint if not complied with would have non‑suited the plaintiffs and the order not being in favour of the plaintiffs was in the nature of a 'case decided' as contemplated by sec tion 115, C. P. C. and hence the revision has been competently filed. The preliminary objection is, therefore, overruled.

3. Regarding the merits of the case, on behalf of the petitioners reliance is placed on section 17 of the Court Fees Act, 1870, which is to the following effects :‑

"Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaint or memorandum of appeal in suits embracing separately each of such subjects would be liable under this Act."

It is contended that the word different subjects used in the section would mean different causes of action joined together in one suit and since the plaintiffs had claimed separate and distinct amounts from the defendants the court‑fee shall be deemed to be payable on each one of the items separately even if ultimately a decree for a single consolidated amount was passed in favour of the plaintiffs because the decretal amount would be capable of being split up into different parts as claimed against. each one of the defendants. The scope and effect of section 17 of the Court Fees Act was considered in a Full Bench decision reported in A I R 1954 Mad. 594 wherein it was held that "Distinct subjects" in section 17 of the Court Fees Act mean distinct causes of action in respect of which separate suit should be filed but for the enabling provisions allowing to be clubbed up in one suit. The distinctness or identity of the cause of the action is the only criterion for the applicability of the Section. It was also observed that a. simple illustration makes the meaning of the section clear: A files a suit against B on two promissory notes executed by B in A s favour. The value, of the relief in respect of the one promissory note taken and the court‑fee on such value is calculated. Then the value of the relief on the second promissory note is taken and the court‑fee payable on such value is arrived at. Thereafter the said two sums are added and the total amount is the court‑fee payable on the plaint. The case reported in A I R 1953 Mad. 888 may also be considered wherein by reference to two earlier decisions reported in A I R 1935 Cal. 573 and A I R 1943 Pat. 356 it was held that :‑

"I am inclined to hold that the present form in which the suit stands, the decision of the learned subordinate Judge that the plaintiffs should be deemed to have asked for nine separate declarations of the same kind in respect of each of the nine inams, that the suit as framed embraces distinct subjects and that the Court fee payable as governed by provisions of section 17 of the Act is justified. His further direction that the plaintiffs should pay Court fee of Rs. 100 in respect of each one of the nine declarations is also correct, so long as the frame of the suit remains, what is it".

Incidentally it may be mentioned that in A I R 1935 Cal. 573 it was held that where 73 persons filed a suit in which they prayed for a declara tion that each plaintiff bad a Raiyati‑jote interest in one out of 73 plots of land and for a declaration that certain compromise decree was void and inoperative would mean that there were in effect prayers for 73 declara tions of affecting 73 separate titles and that, therefore, the proceedings embraced 73 distinct subjects within the meaning of section 17. Hence 73 separate amounts of court‑fee were payable.

4. In the case in hand it is obvious that the plaintiffs could have instituted separate suits for each one of the amount claimed against the defendants and in that case each item of the 'compensation being below Rs. 25,000 they would not have been liable to pay court‑fee under the amended section 2 of the N.‑W. F. P. Court Fees (Abolition) Ordinance.) 1978 (XIV of 1978) which provides that no court‑fee shall be payable in any case of civil nature the value of the subject‑matter whereof, or relief claimed wherein, does not exceed twenty‑five thousand rupees. The mere fact that the plaintiff in filing the present suit had taken advantage of the enabling provisions of Order I, rule 1 and Order I, rule 3, C. P. C. they could not be deprived of the benefit to which they would be otherwise entitled under the provisions of N.‑W. F. P. Court Fees (Abolition) Ordinance, 1978. In Ava A. Cowasjee and others v. Nasreen Nizam Shah and others (1984 C L C 2705) it was held that in a suit embracing several distinct subjects and the plaintiffs making separate clams against the defendants which were based upon distinct subjects, the plaintiffs were required to value each subject and to pay court‑fee on each relief separately. Keeping in view this principle it is obvious that every item of the compensation claimed by the plaintiffs against each ore of defendants 1 to 21 is to be valued for the purposes of court‑fee separately and thus each one of the amounts claimed in the plaint being below Rs. 25,000 would be exempted from the payment of Court fee.

5. In this view of the matter the impugned order of the learned Senior civil Judge, dated 15‑5‑1984 demanding court‑fee on the aggregate value of the compensation claimed in the plaint cannot be maintained. The revision petition is, therefore, accepted and the impugned order demanding additional court‑fee from the plaintiffs is set aside. In the circumstances the parties are left to bear their own costs.

A. A. Revision accepted.

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