Teja Singh, J.
1. The facts giving rise to this first appeal shortly stated are as follows: On 2-8-1988, Gainda Mal instituted a suit against his brother and a number of collaterals for partition of the property that he claimed to be joint, for rendition of accounts and for permanent injunction. Though it was stated in the plaint that the value of the suit for purposes of jurisdiction was Rs. 13,550, (Rs. 20 for purposes of rendition oft accounts, Rs. 5 for permanent injunction and Rs. 13,525 for purpose of partition), court-fee of Rs. 11/4 only was paid on the ground that the plaintiff fixed the value of the first two reliefs at Rs. 20 and Rs. 5 and a fixed fee of Rs. 10 was payable in respect of the relfef of partition, because the suit property was in the joint possession of the plaintiff and the defendants. On the defendants' objection and on the plaintiff's own admission that the value of his one-fourth share to which he alleged to be entitled was Rs. 50,000. On 19-6-1939 the trial Court held that ad valorem court-fee for possession by partition had to be paid on that amount and ordered the plaintiff to make up the deficiency by 29th June. On 26th June the plaintiff applied for permission to sue in forma pauperis, alleging that he was unable to pay the full court-fee required by the trial Court without going into the merits of the plaintiff's allegation that he was a pauper dismissed his application as well as the suit on 3-7-1939. On appeal to the High Court, Lahore, a Division Bench of that Court set aside the trial Court's order dismissing the plaintiff's application for permission to sue in forma pauperis as well as the decree by which he was non-suited and remanded the case with the direction that the application should be decided on merits, and if the Court came to the conclusion that the plaintiff was not a pauper, time should be granted to him to make up the deficiency in court-fee. After the remand the trial Sub-Judge found that the plaintiff had not been able to prove that he was a pauper. Accordingly he dismissed his application and ordered him to make up the court-fee within a month of the date of his order, that is, 15-8-1944. Against this order the plaintiff made a petition for revision to the High Court of Lahore. A learned Judge of that Court on 29-8-1944 stayed proceedings in the trial Court pending the hearing of the revision petition. The petition was ultimately dismissed by another learned Judge on 7-11-1944 and the trial SubJudge's order of 15-8-1944 was confirmed. On 8-11-1944, evidently before the records of the case could reach the trial Court, the plaintiff made an application to the trial Court under Section 151 and Order. 6, Rule. 17, Civil P.C. detailing all these facts, alleging inter alia that he was unable to pay the full amount of court-fee ordered by the Court and stating that he reduced his claim re: possession by partition of the suit property from one-fourth to one-four hundredth share so as to bring the value for purposes of court-fee to Rs. 500 instead of Rs. 50,000. He further prayed that though it was not necessary in law to amend the plaint, in order to avoid all possible objections on the part of the other party he be allowed to make a necessary amendment in the plaint with regard to the value of the relief for partition. The application was opposed by the contesting defendants, firstly, on the technical ground that it had not been properly signed and attested and, secondly, that the Court having ordered the plaintiff to pay court-fee on Rs. 50,000 it was not open to the plaintiff to reduce his claim. The following issues were framed:
1. Whether the plaintiff can be allowed to amend the plaint so as to reduce his claim to Rs. 500, when he has not paid court-fee as ordered by the Court ?
2. Whether for other reasons also the amendment should not be allowed ?
3. Whether it is necessary that the application should be signed and attested by the applicant ?
By his order dated 9-2-1945 the trial Sub-Judge found the third issue for the plaintiff but decided the other two against him and ordered him to make up the deficiency in the court-fee by the 10th. Since the deficiency was not made upon the 10th the plaint was rejected under order. 7, Rule 11, Civil P.C. This order is the subject-matter of appeal before us.
2. The Court below while rejecting the plaintiff's prayer that he be allowed to reduce his claim took the view that after an order made under Order 7, Rule 11 for the deficiency in court-fee to be made up, the plaintiff cannot be allowed to relinquish any part of his claim, and relied upon Midnapur Zemindary Co. v. Shey. of State 4 A.I.R.1917 Cal.77. The position taken up by the appellant's counsel is that according to Order 23, Rule 1, Civil P.C., the plaintiff has an absolute right to abandon a part of his claim against all or any of the defendants, and as is laid down in Sub-rule (1) of that rule he can exercise this right at any time after the institution of the suit and before the suit is finally disposed of. The counsel further urged that Order 7, Rule 11 and Order 23, Rule 1 should be read together. The relevant words of Order 7, Rule 11 are:
11. The plaint shall be rejected in the following cases:
(a) * * *(b) * * *(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so.
Order 23, Rule 1 reads as below:
At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
Sub-rule (3) is to the effect that:
where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-Rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
It is, therefore, clear that if a plaintiff wishes to withdraw a suit or abandon a part of his claim he can do so at his sweet will In certain cases it is necessary for him to obtain the permission of the Court under Sub-rule (2), but according to the words of Sub-rule (8) the only penalty to which he subjects himself for not obtaining the Court's permission under Sub-rule (2) is that he shall be precluded from instituting any fresh suit in respect of the subject-matter or part of the claim about which he withdraws his suit or abandons his claim.
3. To start with, the respondents' counsel took up the position that when a plaintiff has once fixed the value of his suit for purposes of jurisdiction he has no right whatsoever to reduce it at any stage of the suit, and when a suit is for possession of property court-fee must be paid on the value so fixed. The learned Counsel in order to support his contention referred us to Mt. Zebunnisa v. Din Mahomed 28 A.I.R.1941 Lah.97, a Full Bench decision of the Lahore High Court. I have no hesitation in coming to the conclusion that that ruling has absolutely no application to the facts of the present case. In that case a Mohammadan had executed a family trust in respect of his property and had constituted himself to be the first mutwalli. The trust deed provided that after his death his son was to succeed him as mutwalli. The son after his father's death repudiated the trust and along with his brother effected several alienations of the dedicated property. The plaintiffs instituted the suit for a declaration that the property was wakf and that alienations thereof were null and void. They valued the relief at rupees ten lacs for the purposes of jurisdiction and paid court-fee of Rs. 10 under Clause (iii) of Article 17 of Schedule II, Court-fees Act. The Full Bench held that the first part of the relief that the property was wakf was purely declaratory and did not involve any consequential relief and would, therefore, require Rs. 10 for the purposes of court-fee, and that as regards the second part of the relief that the alienations be declared null and void etc., it was tantamount to a substantive relief in the shape of the setting aside or cancellation of the alienations in question and could not be treated as purely declaratory or as a declaration with a consequential relief within the meaning of Section 7 (iv)(c) and required advalorem court-fee on the value of the subject-matter of the sales, viz., rupees ten lacs as put in the plaint for the purposes of jurisdiction, for the reason that in a suit of that kind the value for the purposes of court-fee and jurisdiction was the same. There was no question of the plaintiff's right to withdraw a part of his claim and consequently there was no reference much less discussion of the provisions of Order 23, Rule 1, Civil P.C. The counsel drew our attention to an observation made by Tek Chand, J. in the course of his judgment that when a plaintiff fixed a certain value of the property, which is the subject-matter of the suit, for purposes of jurisdiction, it is not open to him to fix a different value thereof in respect of court-fee. These remarks should be read in the light of the facts of the case with which the learned Judge was dealing and do not imply that if the plaintiff wishes to relinquish a part of his claim he cannot be allowed to do so, because it would entitle him to pay less court-fee than he would have one if there had been no relinquishment. Where the plaintiff relinquishes a part of his claim the subject-matter of the suit would be confined to that part of the claim which is not relinquished and the value of the suit both for purposes of jurisdiction and court-fee will be reduced accordingly.
4. There is also a distinction between the facts of this case and those of Midnapur Zemindary Co. v. Secy. of State 4 A.I.R.1917 Cal.77 upon which the trial Court has based its order. The plaintiff asked for a declaratory decree but the trial Judge held that consequential relief had also been claimed and consequently asked the plaintiff to supply the deficit court-fee within the time that he allowed for the purpose. The plaintiff failed in this and the plain was rejected under Order 7, Rule 11, Civil P.C. When the matter went up in appeal before the High Court the plaintiff's counsel challenged the finding of the trial Court and contended that the Suit fell within the purview of Article 17, Clause (iii) of such. II, Court-fees Act and the court-fee of Rs. 10 was proper. The learned Judges of the High Court spurned this contention. After having held this the learned Judges further found that since the plaintiff on being required by the Court to supply the requisite stamps papers within the time fixed by the Court, failed to do so, the trial Judge had no other alternative but to reject the plaint in accordance with the terms of Order 7, Rule. 11, Civil P.C. There is nothing to show that the plaintiff requested the trial Court to allow him to relinquish one of the reliefs claimed by him, before it recorded the order rejecting the plaint. A request of this kind was however made in the High Court, but was disallowed. In the present case the plaintiff relinquished a 399/400th part of his claim before his plaint had been rejected and when the suit was still pending, and in view of Order 23, Rule 1(i) he was perfectly right in doing so. This case has been considered and distinguished in a number of other cases and the concensus of opinion is in favour of the view that I have taken. Reference in this connection may be made to Neeachalam v. Narasinga Dass. 18 A.I.R.1931 Mad 716, Saiyadunnessa Khatun v. Gaibandha Loan Co. Ltd. 24 : AIR1937Cal562 , Narsidasji Balmakunddasji v. Bai Jamma. A.I.R1939 Bom.354. It is not necessary to refer to the facts of all these cases. They were all discussed and followed by a learned Judge of the Madras High Court in Rama Krishna Reddy v. Veera Reddy 33 A.I.R.1946 Mad.126. That was also a suit for partition. One of the items of property, that was the subject-matter of the suit, had been sold before the suit was instituted, The Sub-Judge held that before the plaintiff could claim partition the sale ought to be set aside and court-fee should be paid on the value of that item which was shown to be Rs. 1012 & the plaint. The Sub-Judge called upon the plaintiff to pay m additional court-fee of Rs. 119-15-0 till 23rd December 1943. The plaintiff took time for the payment till 30th December. On that day the Sub-Judge happened to be absent from Court and the case was postponed 10th January 1944. On that day the plaintiff instead of paying the deficit court-fee filed a memorandum giving tip defendant 3, who was interested, and the item of the property which had been sold. The Subordinate Judge held that the plaintiff was not entitled to relinquish any portion of his claim without filing a petition for the amendment of the plaint and as no such petition had been filed be had no option but to reject the plaint. It was held by the High Court that under Order 23, Rule 1, Civil P.C. a plaintiff has a right to relinquish part of his claim in order to bring it within the court-fee paid and that neither permission of the Court nor an application for amendment of the plaint is necessary for that purpose. It was further held that since before the expiry of the period fixed for payment of deficit court-fee the plaintiff filed a memo, Stating that he gave up his claim to certain items of the properties the Court could not reject the plaint As regards Midnapur Zemindary Co. v. Secy. of State 4 A.I.R.1917 Cal.77 after giving the facts of the case and referring to the remarks of Sanderson C.J. appearing towards the end of his judgment this is what the learned Judge said:
These observations no doubt seem to be in favour of the respondents, but the decision must be confined to the facts of the case which were that at the stage when the request was made to the High Court, the plaint had already been rejected.5. Karam Chand v. Jullundur Bank Ltd. 14 A.I.R.1927 Lah.543 this principle that it is open to a litigant to give up a part of his claim and to confine his relief to the rest was applied to an appeal and it was held that there was nothing to debar an appellant from relinquishing a part of his claim and paying court-fee stamp on the memorandum of appeal on the claim reduced on appeal.
6. When faced with all these authorities and unable to say why the provisions of Sub-rule 1, Rule 1 of Order 23 should not be given full effect to, the respondents' learned Counsel contended that this 'applies to money suits and not to suits relating to partition.' He agreed that if a plaintiff came to Court with the allegation that on the facts stated in the plaint he was entitled to Rs. 5,000 as damages, but since he could not pay court-fee on the full amount he claimed Rs. 500 and paid court-fee only on that amount, there was nothing to debar him from doing so. But he urged that a suit for partition stood on a different footing from an ordinary money suit, inasmuch as each one of the defendants could get his share of the joint property on partition and if the plaintiff were allowed to relinquish his claim by reducing the share, to which he was in fact entitled this would result in loss to the Government revenue. In the first place, the Courts have only to administer the law as it stands and they have no concern whatsoever with the effect that this may have upon the fiscal policy of the Government. If a particular provision of law is so defective that if enforced it must cause loss in Government revenue, it is the business of the Legislature to amend it. Secondly, the contention, that if a plaintiff in a partition suit is allowed to claim a share lesser than the one which he can claim it will enable him to defraud the law relating to court-fee is based upon misconception, because if a decree is passed in the plaintiff's favour he will get only. that much property for which he has paid the court-fee and when the rest of the property is in the-possession of the contesting defendants, as it is in the present case, the other defendants, even if they are colluding with the plaintiff, will not get their shares unless they pay court-fee on the respective values thereof.
7. For all these reasons I would allow the appeal, set aside the order of the trial Sub-Judge and remand the case with the direction that the plaintiff be allowed to amend his plaint by reducing his original claim and by confining his present claim to 1/400th share of the suit property on which he had paid the court-fee. The court-fee in appeal shall be refunded The other costs shall abide the event.
8. The parties counsel have been directed to cause their respective clients to appear in the trial Court on 19-4-1948.
Khosla, J.
9. I agree.