P L D 1965 Dacca 398 (PLP)

ASIR, J.‑

This Rule has been obtained against two orders dated 27‑9‑1962 and 29‑10‑1962 rejecting the application under Order XLVII, rule 1 of the Code of Civil Procedure in regard to an order for payment of ad valorem Court‑fee on the amount of compensation claimed by way of improvement cost in a pre -emption proceeding under section 26 (f) of the Bengal Tenancy Act. The petitioner filed an objection against prayer for pre -emption at the instance of the opposite‑party in regard to the sale held sometime in 1959. Pre‑emption application was filed within three years by the opposite‑party who claimed to be a non‑notified co‑sharer. The petitioner in his turn raised various objections including the one asking for compensation in regard to the improvement cost incurred since his purchase. The learned Munsif by his order dated 25‑8‑62 directed that the petitioner was to pay ad valorem Court‑fee on the amount of Rs. 800 said to have been the improvement cost incurred since purchase. It appears that the petitioner was induced to agree to the payment of ad valorem Court‑fee as directed. Later on the petitioner realised that such a demand was not permissible in law. He therefore, filed an application under Order XLVII, rule 1 of the Code of Civil Procedure for reviewing the order requiring payment of Court‑fee. This review application was disposed of on 27‑9‑1962 on terms that unless the requisite Court‑fees were paid on the amount claimed the written objection would be struck off. For failure to pay the Court‑fee the written objection was actually struck off on 29‑10‑

62. It is against these orders that the petitioner has obtained this Rule. In view of the peculiar nature of the matter in so far Court‑fee has been demanded on the amount of improvement cost we required the learned Government Pleader to appear and assist us. According to Mr. Aziz the demand of Court‑fee as made by the learned Munsif is not authorised by law and as such without jurisdiction. He further submits that out of fear his client agreed to pay the Court fee as demanded but later on after realising that it was an illegal order wanted to have the same reviewed and considered by way of an application under Order XLVII, rule 1 of the Code of Civil Procedure. His main contention is that there is no provision under the Court Fees Act for realising Court‑fee in a matter like this. The learned Government Pleader submits that the amount of Rs. 800 as claimed on account of improvement cost could be treated as a counter‑claim. We are, however constrained to observe that even if it were to be looked upon as a counter‑claim yet such counter‑claim were to be advanced in a suit. Admittedly the proceeding started on the basis of an application under section 26(f) of the B. T. Act and the usual procedure is to treat such application as a Miscellaneous proceeding and not as a suit. Apart from that the claim of Rs. 800 by way of compensation in the shape of improvement cost cannot be deemed to be based on any legal right or legal cause of action. It is more or less settled that such a claim, if at all to be accommodated, should be considered as an equitable claim. There seems to be no provision existing in the body of the Court Fees Act or in any of the Schedules thereunder by which Court‑fee could be charged on a claim like this. It is in connection with the disposal of the prayer for pre‑emption that the incidental question of compensation in the shape of an improvement cost may have to be considered. The Legislature in our view has nowhere provided that for such incidental matters or reliefs any Court -fee has to be paid. This was surely a sufficient cause within the meaning of Order XLVII, rule I of the Code of Civil Procedure which ought to have weighed with the learned Munsif. In our view the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in directing the petitioner to pay Court‑fee on the amount claimed by way of improvement costs. The result, therefore, is that this Rule is made absolute. The impugned orders dated 27‑9‑1962 and 29‑10‑1962 are set aside and the application for review under Order XLVII, rule 1 is allowed and the orders dated 23‑8‑1962 are set aside. It is further directed that the Misc. Case No. 26 of 1961 be and is disposed of according to law, after accepting the written objection as filed on behalf of the petitioner. There will be no order as to costs of this Rule. SALAHUDDIN AHMED, J.‑--I agree. K. B. A. Rule made absolute.