JUDGMENT :- This is an appeal against the judgment of the Subordinate Judge of Srikakulam remanding the suit to the trial Court. The material facts may be briefly stated :

2. The plaintiff sold the suit properties to the defendant on 13-3-1947 for a stated consideration of Rs. 5,500/-. Alleging that the consideration actually paid was only Rs. 3,000/- and there was an agreement for reconveyance of those properties entered into on the same date for this sum of Rs. 3,000/-, the plaintiff filed the suit which gives rise to this appeal in the Court of the District Munsif of Skakulam for specific performance of that agreement of sale. He valued the suit under S. 7, Cl. (x), Court-fees Act, at Rs. 639-1-9 and paid a court-fee of Rs. 71-15-0.

3. One of the defences to the suit was that it was under-valued and court-fee should have been paid on the sum of Rs. 3,000/- said to be the consideration for the reconveyance of the properties. Agreeing with this, the trial Court called upon the plaintiff to pay the deficit court-fee and gave him time on 27-10-1950 till 6-11-1950. This was extended up to 15-11-1950. As further time wag asked for again on 15-11-1950, the trial Court refused to comply with it and dismissed the suit for non-payment of the deficit court-fees.

4. The matter was taken in appeal and the main grounds urged in support of the appeal were that as time was granted till 15-11-1950 and since he had time till the evening to pay the court-fee, the suit could not be dismissed earlier in the day and the Court-fee as originally paid by him was correct. The appeal was opposed on the grounds that the correctness of the order of the trial Court on the question of court-fee could not be canvassed in appeal as it had become final and that under S. 12 of the Court-fees Act, the question of computation cannot be gone into by the appellate Court. Alternatively, it was contended that the proper court-fee payable is on Rs. 5,500/- and not on Rs. 3,000/-.

5. The appellate Court accepted the contention of the plaintiff that the trial Court had no jurisdiction to dismiss the suit earlier in the day on 15-11-1950 when he had time to pay the deficit court-fee till the evening. It also held that the plaintiff could question the order dated 27-10-1950 in O.S. No. 165 of 1950 determining the court-fee, in the appellate Court. It further held that the court-fee payable is on Rs. 5,500/- being the amount of consideration recited in the sale-deed by the plaintiff to the defendant.

And for this view, reliance was placed by the Subordinate Judge on a Full Bench decision of the Madras High Court in - Madanamohana v. Krupasindhu, AIR 1931 Mad 81 (FB) (A). In the result, he set aside the order of the trial Court, but directed the plaintiff to pay court-fee on Rs. 5,500/-. In that view, he remanded the case to the trial Court for further disposal. There is also a direction to the trial Court to decide the question of pecuniary jurisdiction. The plaintiff who was called upon to pay the higher court-fee has preferred this appeal.

6. It is contended by Mr. Narasayya in support of this appeal that under S. 7, Cl. x), Court-fees Act, the court-fee payable is only on the amount of consideration agreed to be paid for the re-sale and not the original consideration stated to have been paid to him under the original sale by him to the defendants. In reply to this, Mr. Sivaprasada Rao argued that the decision referred to by the lower appellate Court supports its view and therefore the appellant has to pay court-fees on the consideration stated in the sale-deed.

I do not think I can agree with the proposition of the counsel for the respondent. The terms of S. 7, Cl. (x) are clear that the court-fee is to be paid according to the amount agreed to be secured under the suit contract. In this case, the amount agreed is Rs. 3,000/- and the sale consideration for the earlier sale has no bearing. We are not now concerned with the truth or otherwise of the averments of the plaint.

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