P L D 1965 (W (PLP)

Asa Ram and others v. Jagan Nath and others A I R 1934 Lah. 563 ref. (c) Interpretation of statutes‑

Fiscal statutes to be construed strictly and in favour of the subject‑Court Fees Act (VII of 1870). Sh. Muhammad Iqbal Husain for Petitioner. M. Z. Khalil for Respondents. Date of hearing : 4th February 1964. This is a revision petition against the order of the trial Court, dated the 3rd of February 1960, whereby it directed the plaintiff‑petitioner to fix the value of the suit for the purposes of Court‑fee on the market price of his share which he had already fixed for the purposes of jurisdiction at Rs. 1,000.00.

2. The petitioner instituted a suit for possession through partition of his share of 2/3rd of half of houses Nos. F‑1487 and F‑1488 situate in Haveli Kabli Mal, Kucha Billa Kabuterbaz, Lahore; claiming to be an owner in joint possession of them with the defendant. The suit was valued for purposes of jurisdiction at Rs. 1,000.00 and a fixed Court‑fee of Rs. 10.00 was paid on the plaint. It was presumably under Article 17 (vi), Schedule II, of the Court Fees Act.

3. The defendant did not admit the plaintiff to be in possession and claimed to be in exclusive possession of the suit property. Based on these averments he took a preliminary objection that the plaint' was not sufficiently stamped as the plaintiff had failed to pay ad velorum Court‑fee on the market price of his share in the suit property. The trial Court held that the plaintiff was not in actual physical possession of any part of the property in dispute and the suit, therefore, had not been properly valued for the purposes of Court‑fee.

4. On behalf of the respondent an objection was taken to the very competence of the revision petition. To answer this question, let us examine as to what is precise scope of the order. The order of the lower Court requires the plaintiff‑petitioner to pay a larger amount of Court‑fee than what he paid on the plaint. If the Court‑fee is not paid, as ordered by the Court, it is bound: to result in the rejection of the plaint. If the order is erroneous, it finally deprives the plaintiff from all redress in the suit itself. However, much the Court may have jurisdiction to make such an order, if the effect of it is a refusal to proceed to trial at all in circumstances when the Court is bound to do so, it will, in my opinion, be a refusal by the Court to exercise jurisdiction which vested in it by law. In such a case when it is held that a plaint is improperly or insufficiently stamped, the revision filed against such an order has to be entertained and heard, and if it is found on examination in revision that the plaint was properly or sufficiently stamped, the obvious conclusion will be that the Court has refused to exercise jurisdiction vested in it by law to hear and decide the suit. It is, therefore, open to us to examine the case and see that the order was legally justified.

5. The sole basis for the trial Court to hold that the plaintiff was liable to pay ad velorum Court‑fee was that he was not in actual physical possession. According to its decision unless a person was in actual possession he had to pay ad velorum Court‑fee. In other words, Article 17 of the Schedule to the Limitation Act could apply only if the plaintiff was in actual possession; and in other cases including constructive possession the Court‑fee had to be calculated as it was a suit for possession. The view of the trial Court on this point is not correct. To attract the application of Article 17 (vi) of Schedule II of the Court‑fees Act, it is not necessary that the plaintiff should be in physical possession of the property in which he claims a share. It is sufficient if the plaintiff alleges in the plaint to be in actual or constructive possession. The law makes no distinction between the plaintiff who is in actual possession and the one who is merely in constructive possession of the property sought to be partitioned. In the Full Bench decision of the Lahore High Court in Asa Ram and others v. Jagan Nath and others (A I R 1934 Lah. 563) the learned Judges after a resume of the case‑law on the subject, laid down, "that in a suit for partition of joint property, where the plaintiff alleges that he is in actual or constructive possession Court‑fee payable would be Rs. 10 under Article 17 (vi) Schedule II of the Court Fees Act." This decision was followed in a later Full Bench decision it Dewan Chand v. Dhani Ram (A I R 1941 Lah. 523) where it was held that in at appeal arising from a suit for partition of joint properties of which the plaintiff claimed to be in actual or constructive possession, a Court‑fee of Rs. 10.00 is payable on the memorandum of appeal, even though the trial Court had found the plaintiff not to be in possession of some or all the properties in the suit. There is, in fact, a consensus of opinion of all the High Courts in Pakistan and India that in a suit in which the plaintiff alleged that he was in joint possession either' actual or constructive and claimed by partition separate possession of his share in the alleged joint family property, the Court‑fee payable is to be determined C according to Article 17 (vi), Court Fees Act. This was the view taken in Mahendr Chandra Gangoli v. Ashutosh Gangoli (20 Cal. 762) Jhoti Parashad v. Jogendra Ram (A I R 1928 Cal. 878); Parmeshur Din v. Hergovind Prasad (A I R 1939 Oudh 90); Abdur Rahman v. A. B. Crisp (A I R 1930 Rang. 164) ; Jai Partab Narain v. Rabi Partab Narain (A I R 1930 All. 443) ; Rama Sowami v. Ramga Chariar (A I R 1940 Mad. 103); Ramaular Saho v. Ram Gobind Saho (A I R 1942 Pat. 60) and Bhaddo v. S. A. Sado. (A I R 1924 Nag. 86)

6. The order of the trial Judge is otherwise erroneous because in giving his finding on preliminary objection he has gone beyond the allegations made in the plaint. It is a well‑established principle that it is the allegation of the plaintiff and not of the defendant that determines the nature of the relief claimed. In order to determine the amount of Court‑fee payable on a plaint, the Court should see the nature of the cause of action and the reliefs claimed in the plaint. The Court Fees Act like the other fiscal statutes is to be construed strictly and in favour of the subject. In Rachappa Subrao v. Shidappa Venkatrao (AIR 1918 P C 188) the Judicial Committee observed that the Court Fees Act was passed in order to secure revenue for the benefit of the State and not tot arm a litigant with a weapon of technicality to harass his opponent. It was further held that though the Courts are to be astute to see that litigants should have no chance of escape or no means to secure the evasion of tax it would be extremely dangerous for them to leave the question of requisite Court‑fee to depend not on the nature of the plaiptiff's claim but on what the defendants choose to plead, true or false. The House of Lords had earlier in Partigton v. Attorney‑General ((1869) 4 H L C 100) held as: "If the person sought to be taxed comes within the letter of the law he must be taxed, however, great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be." It is thus not permissible to speculate upon what may be the real object of the plaintiff. The pleas raised by the defendants cannot furnish any basis for deciding this question. In Secretary v. Lakhanna (A I R 1933 Mad. 430), it was observed: "in determining the proper Court‑fee payable on the plaint it should be no concern of the Court to see whether the allegations in the plaint were true or probable." In Asa Ram and others v. Jagan Nath and others, their Lordships after very exhaustive discussion of the subject observed: "The principle is well‑recognised that, in determining the provisions of the Court Fees Act applicable to a particular suit, the allegations made by the plaintiff alone must be considered and that the pleas raised by the defendant do not affect the question." This decision leaves no doubt that if the plaintiff in a plaint alleges to be in actual or constructive possession, the Court‑fee payable would be Rs. 10.00 under Article 17 (vi) of Schedule II of the Court Fees Act.

6. It was alleged in the plaint that the plaintiff was in constructive possession. On the basis of the allegations in the plaint, the suit was properly valued for purposes of Court‑fee which was rightly paid under Article 17 (iv) of Schedule II. It may, however, be noticed that the plaintiff has to pay the Court- fee on the allegations made in the plaint and it will, of course, have no effect on the merits of the case. It may turn out at the trial that the subject of the contest between the plaintiff and the defendant is not properly represented by the form in which the plaintiff has chosen to put his claim or the allegation of joint possession in the plaint is not borne out by the evidence, the obvious result would be that the suit would fail unless the plaint is suitably amended under orders of the Court and further Court fee paid. This point was also considered in Asa Ram and others v. Jagan Nath and others and their Lordships of the Judicial Committee held :‑ "If the Court finds, on a plea being raised by the defendant, this allegation to be untrue, then ordinarily the suit will be dismissed solely on the ground that the plaintiff being out of possession is not entitled to sue for partition without asking for possession of the property in dispute unless for special reasons the Court deems it proper to allow an amendment of the plaint on payment of the requisite Court‑fee stamp."

7. In the result, I hold that the plaint has been properly valued for the purpose of Court‑fee and the order of the Civil Judge in this behalf being not warranted by law is hereby set aside. The revision petition is, therefore, accepted with costs. S. Q. Petition accepted.