A decision upon court-fee which is adverse to the plaintiff amounts to a decision of the Court refusing to exercise its jurisdiction to try the issues as between the plaintiff and the defendant; and that in such a case the decision is subject to the revisional jurisdiction of the High Court.

Ramaswami, J.

1. This sale is directed against an order of the learned Subordinate Judge of Monghyr rejecting a plaint for nonpayment of deficit court-fee.

2. The applicant brought the suit for recovery of possession of three ghatwali estates constating the chakai ghatwali against the opposite party. The plaint was filed on 28th January 1946 with a court fee of Rs. 1509-6-0 upon a valuation of two lacs. The Stamp Reporter objected that the court-fee should be assessed under Section 7 (iv) (c) on the market value of the properties. On 22nd March 1947, the learned Subordinate Judge investigated into the matter and found that the property should be valued at 5 lacs and that the plaintiff should pay the deficit court-fee, on or before 7th May 1947. Subsequently the applicant filed a petition for suing in forma pauperis. After several adjournments the petition was rejected on 5th June 1948. On 18th June 1948, the learned Subordinate Judge called upon the plaintiff to pay deficit court-fee of Rs. 6614-14-0. On 21st July 1948, the plaint was rejected as the petitioner failed to pay the deficit court-fee in spite of several adjournments having been granted.

3. In support of this rule Mr. L.M. Ghose argued in the first place that the learned Subordinate Judge has made a serious error in calculating the amount of court-fee. Learned counsel pointed that Act XXV [25] of 1948 which imposed 6 annas surcharge only came into force in April 1948 and cannot have retrospective effect. In support of his argument learned counsel relied upon Tara Prasanna V/s. Nrisingha Moorari, 51 Cal. 216 : (A. I. R. (11) 1924 Cal. 731). In that case a suit had been instituted on 16th June 1920 for a declaration and consequential relief bearing a court-fee stamp of Rs. 10. Thereupon an issue was raised to the following effect, viz., whether proper court-fee had been paid on the plaint. The Subordinate Judge came to the conclusion that proper court-fee had not been paid and he directed that Rs. 740 should be recovered as deficit court fee. Before this order was passed Act V [5] of 1922 came into operation by which the amount of court- tee was raised. Upon these facts the Division Bench held that the amount of court-fee leviable upon the plaint must be determined by a reference to the law as it stood on 16th June 1920 on which the suit was instituted. Upon the authority of this case it must be held therefore that in the present case too proper court-fee to be levied on the plaint was Rs. 6450 which includes 25 per cent. surcharge which was leviable by an amending Act of 1939. It is clear that the deficit court-fee was Rupees 4940-10-0 and not Rs. 6616-14-0 as calculated by the learned Subordinate Judge. In demanding, therefore, the excessive court-fee and rejecting the plaint for failure to pay the deficit court fee wrongly calculated, it is manifest that the learned Subordinate Judge acted illegally and with material irregularity in exercise of his jurisdiction. From the order sheet dated 9th June 1948 and 14th June 1948 it would appear that the learned Subordinate Judge mechanically acted upon the Sarishtadars report without applying his mind to the question whether the mew Act imposing 6 annas surcharge was leviable upon the plaint in the present case. It would also seem that the learned Subordinate Judge acted irregularly in granting short but inadequate adjournments for the purpose of payment of the deficit court-fee.

4. It has been well-settled by a series of cases of this Court that a decision upon court-fee which is adverse to the plaintiff amounts to a decision of the Court refusing to exercise its jurisdiction to try the issues as between the plaintiff and the defendant; and that in such a case the decision is subject to the revisional jurisdiction of the High Court (see Ramkhelawan Sahu V/s. Bir Surendra Sahi, 18 P. L. T. 977 : (A. I. R. (25) 1938 Pat. 22 F.B.).

5. In this context reference should also be made to Joy Chand V/s. Kamalaksha, 76 I.