P L D 1954 Sind 270 (PLP)

VELLANI, J. Under the provisions of rule 227 of the Rules of this Court, the plaintiff has taken out an originating summons for the sale of the immovable property mortgaged to him and the deceased husband of defendant 2 by defendant

1. The amount due upon the mortgage is stated to be Rs. 18,000 for principal and Rs. 2050 for interest, but the plaint bears the Court‑fee stamp of Rs. 15 only. The Deputy Registrar took the view that an ad valorem Court‑fee was payable and has submitted the case to the Court under rule 121 for orders, the plaint being liable to be rejected under Order VII rule 11 (c) of the Code of Civil Procedure, 1908. It was conceded for the plaintiff that the Court Fees Act 1870 applied to the matter, but it was argued that the "plaint" mentioned in rule 233 under chapter XVI of the Rules of this Court relating to "Originating Summons" is not the same thing as the "Plaint" mentioned in Schedule I, Article 1 because the provisions of Chapter XVI of the rules of this Court and the word "subject matter" appearing in that article, distinguish the plaint in an ordinary suit under the C. P. C. to which article referred, from the plaint presented under rule 233 of the rules of this Court for the taking out of an originating summons. This argument was developed by reference to the rules in Chapter XVI and particularly to (i) rule 233 which requires the plaint to state the relief, but not in the form of a prayer as is the case in an ordinary suit ; (ii) rule 230 which gives the Court the discretion to decline to determine any question of construction upon an originating summons ; (iii) rule 232 which permits the Court to direct other persons to be served with an originating summons ; (iv) rule 237 which enables the party served to appear and present his written statement if he so desires on the day fixed in the originating summons ; (v) rule 239 which enables the Court to refuse to pass any order or, and so to dismiss an originating summons ; (vi) rule 240 which prescribes very low advocate's fees, and (vii) rule 245 which enables a Court hearing a suit to reduce the costs to the scale permissible as on an originating summons when the relief sought could be so obtained. The Assistant Government‑ Pleader who was on the order of the Court served with notice of this matter contended that the plaint which has to be presented when taking out an originating summons under rule 233 is not in essence different from the plaint which is taxed by Schedule I, Article 1 of the Court Fees Act, 1870. He referred to (i) rule 7 which makes the rules of this Court in the main an addition to the rules in the First Schedule to the C. P. C. and which enables the rules of the Court to prevail over the said rules in the code where they are in conflict ; (ii) rule 244 which renders Order 11 rule 2, C. P. C. inappli cable to plaints in support of an originating summons and which by implication shows that the remaining provisions of the code as to plaints do apply to such plaints ; (iii) rule 239 wherein the words "relief sought cannot be disposed of in a summary manner on originating summons" clearly indicate that the procedure for the decision of matters mentioned in rules 222, 223, 225, 226, 227, 228, and 229 on an originating summons is merely a summary procedure or an abridgment in certain respects of the ordinary procedure prescribed in the code, and (iv) part 2 of rule 239 which enables the Court to convert the plaint in support of an originating summons by means of the necessary amendments to a plaint in an ordinary suit. The word "plaint" is not defined in the Code of Civil Procedure, 1908, the General Clauses Act, 1897, the Court Fees Act, 1870 or the rules of this Court, and I think that if the word "plaint" in rule 233 or Chapter XVI was meant to carry a meaning different from the ordinary meaning of that word in the Code of Civil Procedure 1908, the rules would have made that different meaning clear in either Chapter XVI or in rule 3 which is the rule containing definitions. I take the view that Chapter XVI of the rules of this Court read as a whole provides an abridged form of procedure which is summary and that where a suit initiated under it cannot be disposed of in a summary way, it can be converted, where that is practicable, into an ordinary suit under the Code of Civil Procedure 1908. I do not think it is possible to hold as the plaintiff contends, that the procedure laid down in Chapter XVI of the rules is in essence so different from the procedure relating to ordinary suits contained in the code as to lend to the word "plaint" in that Chapter a differing meaning from that which it ordinarily bears. The legislature has not chosen to define the term "plaint" in any relevant enactment and I cannot but think that when this Court came to use it in Chapter XVI of the rules, it did so in the same sense as it knew it to be used in the Code of Civil Procedure 1908 and the Court Fees Act, 1870. The argument for the plaintiff is therefore reduced to the proposition that the "plaint" under Chapter XVI of the Rules is necessarily one without "subject matter" within the meaning of Schedule I, Article 1 of the Court Fees Act, 1870. In view of what I have said above, I ‑do not accept this proposition. In order to take this case out of the opening words of section 7 of the Court Fees Act, 1870, it was argued that a matter initiated under rule 233 is not a "suit". The term "suit" is again not defined in any relevant enactment. It is clear, however, that both an originating summons matter under the rules of this Court and an ordinary suit under the code, are instituted or commenced by the presentation of a plaint as a bare reading of rule 233 and Order 4 rule 1 shows Again rule 234 requires an originating summons matter to be num bered as an ordinary suit (with the distinguishing mark "O. S".) and entered in the register of civil suits for which Order 4 rule 2 provides. I think the argument advanced lacks foundation. For the plaintiff it was contended in the alternative that if an originating summons matter is a suit and if there is in the plaint such "subject matter" as Schedule I, Article 1 of the Court Fees Act contemplates, then it is not possible to estimate it at a money value and the Court Fee of Rs. 15 which the plaint bears is the correct fee payable under Schedule II, Article 17 of the Court Fees Act, 1870 and in the further alternative that if the Court holds that it is possible to estimate it at a money value, then that value is the present market value of the mortgaged property and not the principal and interest claimed upon the mortgage which in the present case are together larger than the value of the mortgaged property. The question is whether it is possible to estimate at a money value the subject matter of a suit for sale of mortgaged property, and I hold that the question cannot be reasonably answered except in the affirmative. If the plaintiff were asked as I did ask‑for what purpose he had brought the suit or taken out the originating summons for sale, I conceive that he would be obliged in reason to say that he had done so to recover the sums of money due upon the mortgage‑but not so the advocate for the plaintiff. I can see no basis for the argument that the value of the subject matter is the present market value of the mortgaged property, none having been suggested in the course of argu ments. I take the view that section 7 (1) of the Court Fees Act, 1870, applies and that for the purpose of Court‑fee the subject matter must be valued according to the amount claimed which is Rs. 20,

050. If any authority was needed, I would refer to the case of Nama bin Kesu v. Haji Bin Bahirji (7 Bom. L. R. 194), in which an attempt to bring a suit for sale of mortgaged property without a prayer for personal decree for the balance, within section 7 (ix) failed, and the plaint was required to be valued according to the principal as well as interest claimed; and R. Kailasa v. Payyalur Gramam (I L R (1942) Mad. 438.), which held that even in the suit of one of two co‑mortgagees brought to recover his own share only of the principal and interest due on the mortgage, the plaint must bear the ad valorem stamp upon the entire principal and interest due to both the co‑mortgagees upon the mortgage deed. Both these decisions proceeded upon the basis that section 7 (a) of the Court Fees Act, 1870 applied to a suit for sale of mortgaged property, and I do not think there is any room for holding otherwise. I therefore hold that the plaint must bear an ad valorem Court‑fee stamp on Rs. 20,050 and the plaintiff must make good the deficit in court‑fee stamp within two weeks from the date of this order, or within such further time as the Court may allow him. A. H. Ordered accordingly.