( 1 ) THE question for consideration in this appeal relates to sufficiency of Court-fee paid on the memorandum of appeal. It arises in this manner. The appealing plaintiff brought a suit claiming Rs. 15,000 as arrears of salary against a Secretary to the Union of India, the State of Madhya Pradesh and others. It transpired that the plaint was rejected under Order 7, Rule 11 (d) of the Code of Civil Procedure on the ground that notice under Section 80 of the Code was not served either on the secretary to the Union of India or the State of Madhya Pradesh. Thereupon, the plaintiff filed this appeal challenging the order of rejection of the plaint and paid on the memorandum of appeal a court-fee of Rs. 7/8/- only.

( 2 ) THE learned counsel for the plaintiff made the point that, in a case like this, the plaint as a whole ought not to have been rejected and the suit should have been allowed to proceed against defendants other than those to whom a notice under section 80 of the Code had to be given. For this view, reliance is placed upon shankarrao Balaji v. Shambihari AIR 1951 Nag 419, Mst. Chandani v. Rajasthan state, AIR 1962 Raj 36 and Ramcharan v. Custodian Evacuee Property, AIR 1964 pat 275. We are inclined to think that that course could have been followed in this case. The fact, however, is that it was not adopted and the question we have to consider is what court-fee ought to be paid on a memorandum of appeal filed against an order rejecting a plaint on the ground of non-compliance with the requirements of Section 80 of the Code.

( 3 ) IT is argued that the rejection of a plaint is, as such, not a decree but is, by virtue of the definition in Section 2 of the Code, deemed to be a decree and, in that sense, it is treated in the same way as the determination of any question under Section 47 or Section 144 of the Code. The further submission that, even for purposes of court-fee, the rejection of a plaint should be similarly treated, cannot be accepted. The Court-fees Act, 1870, is a fiscal statute and, while the one is covered by a specific provision, the another cannot be regarded as so covered by analogy. So, in Apparao Sheshrao v. Mt. Bhagubai, AIR 1949 Nag 1, the Full Bench observed:

"it is obvious that the matter falls to be governed by Schedule I, Article 1, Court-fees Act and not by Schedule II, Article 11. This latter Article refers to a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. By virtue of Section 2 (2), Civil procedure Code, the rejection of a plaint amounts to a decree and therefore this Article has no application to such a case. "

( 4 ) THE counsel for the appellant further submits that, in any event, this appeal cannot be treated for purposes of court-fee as on par with an appeal from a decree which completely and finally determines the rights of the parties. It is pointed out that, in a case like this, there is no decree but the order of rejection of the plaint is deemed to be a decree by fiction. What is more, as provided by Order 7, Rule 13 of the Code, the order of rejection of the plaint, far from being a conclusive determination of the rights of parties, permits the plaintiff to file a fresh suit on the same cause of artion. In this connection, reliance is placed on the following observations of the Full Bench case of AIR 1949 Nag 1 (supra): "we have no doubt in our mind that under Schedule I, Article 1, Court-fees Act the Court-fee must always be ad valorem on the subject-matter in dispute unless it is incapable of valuation. In other words, the court-fee has always to be ad valorem unless for the special reasons given in schedule I, Article 17, the appeal can be brought on fixed fee. " In the present case, therefore, the question resolves itself into this; 'has the ad valorem court-fee to be paid on the full value of the claim or the difference between the court-fee paid and the court-fee demanded?' in our opinion, the latter is the amount