1980 Supreme(MP) 44

H. G. Mishra, J.
Hari Dhere v. Ramchandra.
C. Revn. No. 214 of 1978 (G); Decided on 19-2-1980.

Headnote:(1) Court-fees Act, 1870 -- S. 7 (v) (e) and Sch. II, Art. 17 (V I) -- suit for recovery of temple -- proper Court fees payable -- what is.

        (2) Civil P. C., 1908 -- S. 115 and O. 7, R. 10 -- revision against order of returning the plaint -- maintainability of -- no error of jurisdiction shown -- effect -- return of plaint ordered after definite finding -- not open for revision.

        The trial Court raised an issue on the point and ordered return of the plaint for presentation before the Court having jurisdiction to entertain the same after giving a finding that the market value of the suit property exceeds Rs. 5,000. Aggrieved by this order, the plaintiff preferred an appeal.

        During the pendency of this appeal, the learned Additional District Judge, afforded the parties an opportunity to lead evidence with regard to the valuation of the suit property, recorded the evidence, and, thereafter, has held that the valuation of the suit property was more than Rs. 5,000 Oil the date of the institution of the suit. As a result of this finding the order of return of the plaint passed by the trial Court has been maintained. Aggrieved by this order of the Court below the plaintiff has preferred this revision.

        Held : To take up first the contention advanced by Shri R. S. Saxena, counsel for the applicant. It is true that in case where a suit relates to recovery of possession of a temple, the suit will fall under Schedule II, Art. 17-VI and not under section 7 (v) (e) of the Court Fees Act.

        In order to attract the, applicability of Schedule II Art. 17 (VI) of the Court Fees Act, it makes no difference as to the marketability of the temple whether it is private or public.

        In plaint para 1, it has been stated that the house belonging to the plaintiff in which the deity of Shri Dattaji Maharaj is installed and of which old Municiral No. 908 of Halqua No. 2 (now No. being 42 of Ward No. 4) is situated is Nimbalkar ki Goth, Lashkar. In view of this averment, it is clear that the plaintiff has filed his suit on the basis that be, and not the deity, is the owner of the disputed property. As such Court fees on the market value is payable, as held by the Court below.

        This brings me to the second contention advanced by R. S. Saxena, counsel for the petitioner. It is well established, principle of law that the Court cannot return the plaint unless it comes to a definite finding that the suit should have been instituted in another Court. In the instant case, the learned Additional District Judge has recorded a definite finding to the affect that the suit property exceeds the pecuniary jurisdiction of the Civil Judge Class II. This finding cannot be said to be indefinite or vague. After discussing the evidence led by the parties, the learned Additional District Judge has arrived at the aforesaid finding. No jurisdictional error attracting applicability of any of the Clauses (a), (b) or (c) of sub-section (1) of section 115 or the Code of Civil Procedure is shown to vitiate the impugned order. AIR 1924 Mad 19 and AIR 1938 Nag. 481=24 MPLC 13 distinguished. Revision dismissed.