The Court emphasized the importance of considering the application for amendment of the pleadings on its merits and held that the rejection of the plaint was not justified.

JUDGMENT

S.K. Ghose, J. - This is an appeal by the plaintiffs and it arises under the following circumstances: The suit was for setting aside a certificate sale held by the Collector for arrears of cess on the allegation that the sale was fraudulently brought about by defendant 1 in collusion with the peons of the Collectorate. There is a further prayer that if the Court should decide that the sale is not liable to be set aside, a decree may be passed directing defendant 1 to return the properties to the plaintiffs or, failing that, to pay a sum of one lac of rupees to the plaintiffs as compensation. Para. 8 of the plaint runs thus:

For the purposes of the jurisdiction of this Court this suit is valued at Rs, 1,00,000 and the property in suit being a revenue-paying Mahal this plaint in this suit ia filed by paying a court-fee of Rs. 1,020 on Rs. 15,505-5-0 as being ten times the revenue thereof amounting to Rupees 1,550-8-6 per year u/s 7; Clause (v), Court-fees Act.

2. Thereupon the question of adequacy or otherwise of court-fees came up for decision and was considered by the Subordinate Judge in his order dated 17th May 1934. He decided that the governing factor should be the larger relief asked for, which in this case was the alternative prayer for payment of one lac of rupees, and he accordingly directed the plaintiffs to pay court-fees on one lac of rupees. On 31st May 1934 the plaintiffs put in a petition praying for time to file the balance of the court-fees as ordered and three weeks time was allowed till 21st June 1934. On that date the plaintiffs, instead of paying the balance of court-fees, filed a petition for amendment, which is printed at p. 36 of the paper-book. The prayer was that they should be allowed to value their alternative claim for

compensation at present on Rs. 16,000, and if after hearing they are found to be entitled to additional compensation then they pray that they may be allowed to get a decree for that excess amount by paying additional court-fee thereon;

and they asked that the prayer Kha of the plaint might be amended accordingly. The order which the Subordinate Judge passed upon this petition on 21st June 1934 does not show that he considered the prayer on its merits, but it is also clear that he understood that the prayer was to reduce the amount of compensation. The order runs thus:

In this case plaintiffs' relief in the suit was for possession of the property or compensation to the extent of one lac of rupees. The Court held that the larger of the two reliefs would determine the value of the stamp and asked the plaintiffs to supply the requisite stamp paper on one lac of rupees within a certain time. The plaintiffs pray today for amendment of the plaint by reducing the amount of compensation. In view of the decision in Midnapore Zemindari Co. v. Secy, of State AIR 1917 Cal 77I think the prayer for amendment cannot be allowed. The petition is therefore rejected.

3. Upon that the plaintiffs filed a petition praying for further time to file deficit court-fees, but this was rejected. Thereupon as the plaintiffs did not take any further steps, the plaint was rejected on 23rd June 1934. Against that order this appeal has been filed. The contention for the appellant is that the learned Judge below was wrong in thinking that in the present case he was bound by the decision in Midnapore Zemindari Co. v. Secy, of State AIR 1917 Cal 77 and that what the plaintiffs were asking for by the aforesaid petition of 21st June 1934 was to abandon a part of their claim, which they are entitled to do at any time after the institution of the suit under Order 23, Rule 1, Civil P.C. Mr. Gupta for the respondent-defendant 1, on the other hand, has contended that the decision in Midnapore Zemindari Co. v. Secy, of State AIR 1917 Cal 77 governs the facts of the present case. In that case, a court-fee of Rs. 10 was paid in a suit purporting to be u/s 111.A, Ben. Ten. Act, but the plaintiffs prayed for the declaration (a) tha