A plaintiff is entitled to get credit for the court fee already paid when re-presenting a suit in the proper court, to avoid being made to pay twice on the same matter.

1. The question arising in this revision is whether the court fee paid on a plaint presented in the wrong court could be given credit to when the plaint is represented in the proper court. The suit was originally filed in the Munsiffs Court of Quilandy. It was found on a preliminary enquiry that the plaint claim was undervalued with a view to bring it within the jurisdiction of the Munsiff's Court. The plaint was accordingly returned. From that order the plaintiff appealed to the District Judge and the learned District judge in dismissing the appeal pointed out that the plaint could be re-presented after deleting the prayer for recovery, thereby bringing it within the jurisdiction of the Munsiff court. From that order a revision was preferred to this court in CRP. 16/64 and in dismissing that petition this court observed:

"The learned judge has pointed out that the plaintiff can re-present the plaint with the prayer for recovery of the buildings deleted. In view of this, no interference is necessary. Dismissed."

After this the prayer for recovery of the building was deleted and the plaint was re-presented in the self-same Munsiff 's Court. There the question arose whether the plaintiff could get the court fee paid on the first occasion credited, so that he may pay only the balance, if any on the plaint as presented on the second occasion. According to the learned Munsiff the plaintiff cannot get credit for the court fee already paid, the reason being that he has made changes in the plaint in such a way as to make it appear to be a fresh plaint, and such plaint can be entertained only on payment of court fee afresh. The position is welt covered by authorities. One of the earliest decisions cited before me is the Full Bench decision of the Madras High Court in Viweswara Sarma v. T. M. Nair (ILR. 35 Mad. 567). There, the court after receiving the plaint and cancelling the stamp returned it for presentation to the proper court under 0.7, R.10 CPC. The court in which the plaint was re-presented was directed to give credit to the fee already levied by the former court. In giving the direction the Full Bench observed:

"This is the existing practice in this Presidency and there is nothing in the new Code of Civil Procedure in the Presidency Small Cause Courts Act or in the City Civil Courts Act to indicate that the legislature intended to interfere with such practice".

2. In Bimala Prasad Mukerji v. Lal Moni Devi (AIR. 1926 Cal. 355) a Division Bench of the Calcutta High Court is seen to have taken the same view. There, in the interval between the return of the plaint and its presentation to the proper court, the Court Fee Act was amended. The learned judges held:

"When the plaint which has been returned is presented in a court of competent jurisdiction the suit, even for purposes of court fee, must be taken to be instituted on the date of such representation and therefore on such plaint the court fee should be leviable under the law which was in force at the time when the plaint was re-presented. If the Act is amended in the meantime increasing the amount of fee payable thereunder the plaintiff should be credited with fee originally paid."

3. The same view was taken by the Madras High Court in a later decision in Sarabhama v. Veeranna (AIR. 1950 Mad. 57). There the learned judge held:

"Where a court after receiving a plaint and cancelling the stamp affixed thereto returns the plaint for presentation to the proper court under 0.7, R.10 the latter court to which the plaint is presented is bound to give credit for the fee already levied by the former court." In that case the learned judge further observed :

"But this applies only to cases in which the same plaint is presented to the court. Where the plaint as presented to the proper court is not substantially, if not "verbatim at literatim, the same and there are substantial changes made in the allegations part, as well as in the causes of action part, no credit can be given fo