A plaintiff can abandon a part of his claim at his sweetwill to bring the suit within the Court fee already paid. The Court has no option in the matter of exercise of that right by the plaintiff.

, J.

1. This revision petition is directed against an order, dated 14th June, 1972, of the Subordinate Judge First Class, Rohtak, whereby he allowed the plaintiff to abandon his claim with regard to the non-agricultural property in suit, and also permitted the plaintiff to amend the plaint not only for deleting those portions that related to the abandoned claim, but also to state with clarity that the vendor was a profligate, etc., and the sale was effected without necessity. There is an observation in the impugned order to the effect that the plaint is rejected with regard to that part of the property in respect of which the claim had been abandoned by the plaintiff.

2. Same material facts may be noted.

3. The plaintiff is the son of Pt. Nand Lal. He claimed the usual declaration that the sale effected by his father and uncles in favour of the other defendants was void qua his rights as it was made without consideration and without any legal necessity. The sale in question embraced in its scope three kinds of properties, namely. (a) agricultural land, (b) a house bearing survey Nos. 132 and 133, and (c) a plot of land (building site). He paid Court fee on the value of agricultural land in dispute after calculating that value at 30 times the land revenue. He, however, did not pay ad valorem Court fee with regard to properties (b) and (c). With the aid of a Local Commissioner, the trial Court found that the value of properties (b) and (c) was Rs. 3990/-. He, therefore, directed the plaintiff to pay ad valorem Court fee on the value of properties (b) and (c) and to file an amended plaint by 25th March, 1972. On 23rd March, 1972, the plaintiff, instead of making up the deficiency in Court fee, made an application under Order 6, Rule 17, Civil Procedure Code, stating that he was abandoning his claim with regard to properties (b) and (c), excepting the plot No. 133, the value of which was found by the Court to be Rs. 559/-. Thereafter, his counsel made a statement at the bar that the plaintiff was giving up his claim with regard to properties (b) and (c) altogether and was confining his suit to the agricultural land only, for which Court fee had already been paid. In the same application, the plaintiff also prayed that he be allowed to incorporate in the plaint itself, some additional facts, which he had pleaded in the replication.

4. The contention of Mr. Ram Rang, the learned counsel for the petitioner, is that since the plaintiff had failed to make up the deficiency in Court fee within the time allowed by the trial Court, the latter was bound to reject the plaint in toto under Order 7, Rule 11(c) Civil Procedure Code. The Court, proceeds the argument, in no circumstances was competent to reject the plaint, in part only. In support of his contention, the learned counsel has referred to Maqsud Ahmed V/s. Mathra Datt & Co., AIR 1936 Lah 1021, and Bansi Lal V/s. Som Parkash AIR 1952 Punj 38. It is also urged that the plaintiff was not entitled to abandon his claim with regard to properties (b) and (c) after the expiry of the time allowed for paying the Court fee, because Order 23, Rule 1(1), Civil Procedure Code, comes into play only after a suit has been properly instituted. It is maintained that there could be no proper suit before the Court till the deficiency in Court fee had been paid and, consequently, no order under Rule 1 of Order 23. Civil Procedure Code, allowing the plaintiff to abandon the claim could be made, in support of this contention, reliance has been placed upon Mt. Asghari Begum V/s. Fasihuddin, AIR 1934 All 989.

5. I have carefully considered these contentions. A reading of the impugned order, as a whole, shows that thereby the trial Judge accepted the abandonment by the plaintiff of his claim in respect of properties (b) and (c) and also allowed the plaintiff to amend the plaint and state further facts concerning the profligacy of the vendors, and also to delete those portions thereof which related to