KAMALESHWAR KISHORE SINGH versus PARAS NATH SINGH AND ORS.

Citation: [2001] SUPP. 5 S.C.R. 317 · Decided: 22-11-2001 · Supreme Court of India · Bench: R.C. LAHOTI, BRIJESH KUMAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

KAMALESHW AR KISHORE SINGH 
v. 
PARAS NATH SINGH AND ORS. 
NOVEMBER 22, 2001 
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] 
J 
Code of Civil Procedure, 1908 : Sec. 115. 
Revisional jurisdiction, exercise of-Order as to payment of Court fees, 
subsequently modified substantially by Trial Court-Subsequent Order chal-
lenged by Plaintiff in revision b~fore High Court-Revision Petition dismissed 
by High Court holding that the subsequent order was only an order of 
correction and revision should have been pr~ferred against earlier order-
Held, the subsequent order substantially modified the earlier order and was 
in departure from the earlier order-High Court not justified in dismissing the 
revision petition~1he real question before High Court was whether suit 
property was properly valued and proper court fees was paid-Matter remit-
ted to High Court. 
Court Fees Act. 1870: 
A 
B 
c 
D 
Court fee-Detemiination of-Court fee to be paid on the plaint as 
E 
framed-Not on the plaint as ought to have been framed unless there was an 
attempt to evade by astute drqfting'-Court to assume that the averments in the 
plaint are correct-It is the substance of the relief sought and not the form 
which is detem1inative of the court fee. 
A suit for partition of joint family properties was valued at Rs. 16 
lakhs for the purpose of jurisdiction. Appellants affixed a court fee of 
Rs. 29.25 on the plaint on the presumption that it was a simple suit for 
partition. On an objection petition filed by defendant No. 20 trial court 
passed an order directing the appellant to pay ad-valorem court fee above 
10% of the sale deed of property standing in name of defendant No. 20. 
Thereafter defendant No. 20 filed another petition contending that there 
was a typing mistake in the order of trial court wherein the direction 
should have been to pay court fee on '10 times' of the value of the 
properties in the sale deeds instead of '10% Consequently, trial court by a 
subsequent order modified its earlier order by directing the appellants to 
317 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
318 
SUPREME COURT REPORTS 
[2001] SUPP. S S.C.R. 
pay ad valorem court fee on the value of Rs. 29,39,760. High Court 
dismissed the revision petition holding that the subsequent order was an 
order correcting a clerical error and the court was empowered to pass 
such an order. Hence the present appeal. 
Allowing the appeal and remitting the matter to the High Court, the 
Court 
HELD : 1. The High Court was not justified in dismissing the 
revision petition on the ground that the subsequent order was an order 
correcting a clerical or typing error only. The subse11nent order was in 
substantial departure from the earlier order. By subsequent order the trial 
court directed the plaintiffs to value the suit at 10 time of the value given in 
the sale deeds of the properties. Thus, it substantially modified the earlier 
order and in effect it was the real order causing grievance to the plaintiffs. 
The subsequent order is not to he read in isolation. The revision filed by 
the plaintiff/appellant before the High Court could not have been disposed 
of without testing the correctness of both the orders. The real question 
arising before the High Court was to find out whether the suit was prop· 
erly valued and proper court fee was paid thereon in accordance with law. 
While doing so if the High Court was required to examine the correctness 
or otherwise of the earlier order it should not have felt inhibited from 
doing so. [322-B; 321-B-C; 322-A] 
2. Court fee has to be paid on the plaint as framed and not on the 
plaint ·as it ought to have been framed unless by astuteness employed in 
drafting the plaint the plaintiff has attempted at evading payment of 
court fee or unless there be a provision of law requiring the plaintiff to 
value the suit and pay the court fee in a manner other than the one 
adopted by the plaintiff. The court shall begin with an assumption, for the 
purpose of determining the court fees payable on plaint, that the aver-
ments made therein by the plaintiff are correct. It is the substance of the 
relief sought for and not the form which will be determinative of the 
valuation and payment of court fee. The defence taken in· the written 
statement may not be relevant for the purpose of deciding the payment of 
court fee by the plaintiff, If the plaintiff is ultimately found to have 
omitted to seek an essential relief which he ought to have prayed for, and 
with

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