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ALLAHABAD HIGH COURT
AGARWALA, J. ,JJ.
on difference between MUSHTAQ AHMAD AND DESAI, JJ. ( Full Bench ) - Appellant
Versus
on difference between MUSHTAQ AHMAD AND DESAI, JJ. ( Full Bench ) - Respondent
First Appeal No. 72 of 1950
Decided On : 28-09-1950
Lakshman Swarup and Gyanendra Kumar, Ishaq Ahmad
A Court cannot proceed with a suit or application if there is a deficiency in court-fee, unless the plaintiff makes good the deficiency or gives security for the payment of the deficiency.
Headnote:
INJUNCTION - WAQF PROPERTY - COURT'S JURISDICTION TO PASS INTERIM ORDER - COURT-FEE DEFICIENCY - EFFECT ON COURT'S JURISDICTION - INTERPRETATION OF S. 6 (3), COURT-FEES ACT.
Fact of the Case:
Plaintiff filed a suit for removal of defendant from the office of Mutwalli of a waqf property. During the pendency of the suit, plaintiff filed an application for the appointment of a Receiver. The Court below passed an interim order directing the defendant to deposit in Court moneys due to the beneficiaries, submit monthly accounts of income and expenditure, intimate if any plots or land were let out to other persons, and desist from cutting or removing any trees, all this only until the disposal of the application for the appointment of a Receiver.
Finding of the Court:
1. The order passed by the Court below was an interim order and not an order appointing or refusing to appoint a Receiver. 2. The order was passed under O. 39, R. 1, Civil P. C., and was appealable under O. 43, R. 1 (r). 3. The Court below had jurisdiction to pass the interim order to prevent the wasting or damaging of the property in dispute. 4. However, the Court below acted illegally in the exercise of its jurisdiction in proceeding to pass an interim injunction without deciding the question of court-fee or without taking any security for the payment of deficiency in court fee.
Issues: 1. Whether the order passed by the Court below was appealable. 2. Whether the Court below had jurisdiction to pass the interim order. 3. Whether the Court below was justified in passing the interim order without deciding the question of court-fee.
Ratio Decidendi: 1. An order passed under O. 39, R. 1, Civil P. C., is appealable under O. 43, R. 1 (r). 2. A Court has jurisdiction to pass an interim order under O. 39, R. 1, Civil P. C., to prevent the wasting or damaging of the property in dispute. 3. A Court cannot proceed with a suit or application if there is a deficiency in court-fee, unless the plaintiff makes good the deficiency or gives security for the payment of the deficiency.
Final Decision: The appeal was allowed, the order of the Court below was set aside, and the case was sent back to the Court below with a direction to decide the question of court-fee and then dispose of the application for the appointment of a Receiver.
Mushtaq Ahmad, J. :- This is an appeal against what I regard as an eminently just and proper order. The order is one directing the appellant, Mutwalli of a waqf created by his father, to (1) deposit in Court moneys due to the beneficiaries, such as not already paid to them, (a) submit monthly accounts of income and expenditure from certain date and deposit in Court sums realized by the appellant from that date at the end of every month, (3) intimate every month if the appellant has let out any plots or land in the abadi to other persons and (4) desist from cutting or removing any trees, all this only until the disposal of an application of the plaintiff for the appointment of a receiver.
2. One Nawab Ashiq Hussain made a waqf of a very substantial property in 1923, appointing his eldest son the appellant, as the next Mutwalli after his own death, but at the same time, reserving to himself the power of changing the mode of devolution of the tualiat during the rest of his life time. In 1936, he executed a supplementary deed disqualifying three of his sons for the office of Mutwalli. The suit giving rise to this appeal was filed in 1946 by another son, who was outside the group of the three disqualified sons, against the eldest son of the waqif, who had taken possession of the property on the letters death in 1942. in spite of the disqualification ordained by the waqif in the supplementary deed of 1936. The suit was for removal of this eldest son, arrayed as defendant 2.
3. Along with the plaint was also made an application by the plaintiff for the account books held by the defendant-appellant to be taken possession of from him. A certain order was passed on that application, against which there was a revision filed in this Court which in its turn modified that order. We are not concerned with the nature of the order, either of the first Court or of this Court. On 8-1-1947, the plaintiff further applied for appointment of a receiver. On February 17, the Inspector of Stamps reported that there was a deficiency in the amount of court-fee paid by the plaintiff. Among the issues framed there was therefore one regarding this deficiency. An attempt was made by the defendant appellant in the Court below that, unless the deficiency in court fee reported by the Inspector of Stamp had been made good the plaintiff could not be allowed to press his application for the appointment of receiver. The Court, on 28-1-1950, passed an order to the effect that the matter of the appointment of a receiver could be proceeded with, even before the issue relating to court fee was decided. Against that order, there was a revision filed in this Court which was dismissed, though only on the ground that, the order being of an interlocutory nature, no revision lay against it. The result of the dismissal of the revision against the order of the Court below of 28-1-1950 was at least this that the order became final, so that, if in pursuance of it the Court subsequently proceeded to deal with the application for the appointment of a receiver, the opposite party could not challenge such a proceeding on the ground that that non-determination of the question of deficient court fee was a bar to the disposal of that application.
4. Taking up the application for the appointment of a receiver on 6-2-1950, the Court passed an order, neither appointing nor refusing to appoint a receiver, but embodying certain directions to the defendant-appellant, presumably with the object of ensuring the protection of the property in the interests of the beneficiaries of the waqf. In the course of its order, it said :
"It transpires that if parties are permitted to lead evidence on the receivership application and of course they cannot be prohibited, thin the recording of the evidence will take a long time. There are already hundreds of documents which parties want to be read for the disposal of the receivership application. All this is bound to take long, and the file has got to b
