Test required for the applicability of the provisions of section 17.

This is a court-fee reference made by the Master. When the matter came before one of us it was found that there were conflicting decisions on the question raised and therefore the matter was referred to a Bench of two Judges.

The appeal arises out of a suit for a declaration that the sale deeds in respect of the B Schedule properties alleged to have been executed by the plaintiff’s mother in favour of defendants 1 to 4, 5th defendant’s husband and the 25th defendant and the transfers in favour of defendants 6 to 32 by the 5th defendant’s husband were all void and not binding on the plaintiff. The plaintiff’s father executed a gift deed on 2nd October, 1928, in favour of their mother in respect of items 1 to 5 of the B Schedule. Again on 17th December, 1932, the same donor executed another gift deed in favour of their mother in respect of item 6 of the B Schedule. The mother sold them under six sale deeds of various dates to defendants 1, 2, 3, 4, 5th defendant’s husband and the 35th defendant. Defendants 6 to 32 are alienees from the 5th defendant’s husband. In the plaint in respect of each declaration a fixed fee has been paid aggregating to Rs. 1,400. The plaintiff’s suit was dismissed and the present appeal is filed with a court-fee of Rs. 500 The question is whether the court-fee paid is correct. It would be correct if the appeal does not involve distinct subjects within the meaning of section 17 of the Court-Fees Act. Section 17 of the Court-Fees Act reads as follows:

“Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act.

Nothing in the former part of this section shall be deemed to affect the power conferred by the Code of Civil Procedure, section 9.”

Section 9, Civil Procedure Code, corresponds to Order 2, rule 7 of the present Code of Civil Procedure (Act V of 1908). The question is what is the true meaning of the words “distinct subjects” in the aforesaid section. To answer this question it is necessary to notice the frame of suits permitted under the Civil Procedure Code. Order 1, Civil Procedure Code, allows the joinder of one or more plaintiffs if the right to relief arises from the same act or transaction and there is a common question of law or fact. Order 1, rule 3 provides that two or more persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist. Under Order 1, rule 3 the plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly. So too, two or more plaintiffs having causes of action in which they are jointly interested against the same defendant or defendants jointly may unite such cause of action in the same suit. If the different causes of action are joined against defendants separately, it is called multifarious. The aforesaid rules, subject to the conditions laid down therein, enable a party to club up different causes of actions in one suit. But for the enabling provisions separate suits should be brought in respect of the separate causes of action, in which case separate court-fee would have to be paid. But for convenience if they are clubbed together, it becomes necessary to provide for the forum wherein such a suit should be filed and also in regard to the court-fee payable therein. Order 2, rule 3 lays down that the amount or value of the aggregate subject-matter at the date of instituting the suit should govern the question of jurisdiction. Section 17 of the Court-Fees Act regulates the court-fee payable on such a plaint. The marginal note in section 17 shows that the said provision is intended to govern multifarious suits.

The second paragraph saves the power conferred on the Court to orde