Cheriyan Varkey v. Chacko Chacko — 1949 DIGILAW 33 (KER)

JUDGMENT : Mathew Muricken, J. The petitioners are plaintiffs in O.S. 336 of 1123 of Ettumanoor Munsiff's Court. The suit is for a perpetual injunction restraining Defendants 1 to 3 from entering on the plaint properties on the allegation that they are in possession of the properties under Ext. X lease from Defendant 4 Devaswom. Plaintiffs valued the suit at 100 fanams and paid court-fee of 5 fanams under S. 4, Cl. 4(b), Court-fees Act VI of 1087. Defendant 1 contends among other things that the suit is not properly valued, that he is in possession of the plaint properties and that he cannot be restrained by an injunction from entering upon the properties. The trial Court repelled the defence plea and granted a decree for perpetual injunction. In appeal, the lower Court found that the plaintiffs have to pay court-fee on the market value of the right which they claim in the property and remanded the case to lower Court under O. 40, R. 24 for a finding on the net benefit to the plaintiff per annum from the properties after paying the pattom and other dues to Defendant 4 Devaswom. Hence this revision petition by plaintiffs. The only point for decision is whether the court-fee paid by plaintiffs is adequate. Whether a suit has been properly valued or not must be decided primarily with reference to the relief sought for in the plaint. Paragraph 11 (a) of the plaint contains the relief prayed for: "Defendants 1, 2 and 3 should be restrained by means of a permanent injunction from entering the scheduled properties or from causing any obstruction whatsoever by them to the possession and enjoyment of the same by the plaintiffs and parties under them." Plaintiffs have valued the suit at 100 fanams and have paid a court-fee of 5 fanams. This satisfies the requirements of S. 4, Cl. 4(b), Travancore Court-fees Act, VI of 1087 under which plaintiffs are entitled to fix the value of the relief sought for. The lower Court finds that plaintiffs are bound to pay court-fee under S. 4, Cl. 5(d) viewing the suit as one for declaration of plaintiff's right to property. The lower court bases its conclusion on the decision in Menon v. Koviladhikarikal (27 T.L.J. 829). That suit arose out of a dispute between 2 kovilagoms. The lower Court finds that plaintiffs are bound to pay court-fee under S. 4, Cl. 5(d) viewing the suit as one for declaration of plaintiff's right to property. The lower court bases its conclusion on the decision in Menon v. Koviladhikarikal (27 T.L.J. 829). That suit arose out of a dispute between 2 kovilagoms. On the death of Rama Varma Raja of plaintiff's kovilagom, the kovilagom of respondents 1 to 6 set up a claim to the properties of plaintiff's kovilagom and with a view to take forcible possession Defendant 1 executed an udampady in favour of Defendant 6 and the latter executed a lease for items 10 to 29 and a portion of item 8 of plaint schedule to Defendants 7 and 8. Plaintiffs alleged that the udampady and lease are invalid and prayed for a permanent injunction restraining the defendants from entering on the properties. The plaintiffs valued the suit for purposes of court-fee at fanams 1400 and for purposes of jurisdiction at Rs. 2000 and filed the suit in the Alleppy District Court. Defendants contended that the suit was not properly valued. The trial Court found that plaintiffs ought to pay court-fee on the market value of the property. In revision the High Court held that the relief sought for involved also a prayer for declaration of title and directed the plaintiffs to pay court-fee on the market value of the property under S. 4, sub-s. 5, Cl. (d), Court-fees Act, and to fix his own valuation for injunction treating the prayer for injunction as a mere consequential relief. With great respect to the learned Judge who disposed of the revision petition we do not feel persuaded to follow the decision. In that suit plaintiff did not pray for any declaration of title nor did they seek to set aside the udampady and lease deed impeached by them. All that they prayed for was a permanent injunction restraining defendants from entering on the property. Under S. 4, Cl. 4 (b), Court-fees Act, plaintiffs are entitled to fix their own valuation. The valuation of the suit is to be regulated by the relief sought for in the plaint and does not depend on the questions that are raised by the defence or the ultimate gain likely to be secured by the plaintiffs in the suit. Under S. 4, Cl. 4 (b), Court-fees Act, plaintiffs are entitled to fix their own valuation. The valuation of the suit is to be regulated by the relief sought for in the plaint and does not depend on the questions that are raised by the defence or the ultimate gain likely to be secured by the plaintiffs in the suit. The decision in 27 T.L.J. 829 referred to is based on the decisions Deokali Koer v. Kedar Nath (I.L.R. 39 Cal. at 704) and Vachani v. Vachani I.L.R. 33 Bom. 307. Both were suits for declaration and for consequential relief by way of injunction. In both, the Court held that the suits came under S. 7, sub-s. 4, Cl. (c), Indian Court-fees Act VII of 1870. In the case before us there is not even a shadow of a relief in the nature of a declaration. The prayer is only for a permanent injunction and the plaintiff is free to fix his own valuation. We think it is wrong to assume that a prayer for injunction can be conceived only as consequential relief. A prayer for injunction can stand by itself and that is what we find in the case before us. The position we have taken finds support in 2 decisions of the Madras High Court - Veerappa Chettiar v. Arunachalam Chetti (A.I.R. 1936 Mad. 200) and in Sri Rajha Navani Venkata Rama Rao Bahadur Zamindar Garu v. Shri Rajha Tadakamala Sita Ram Chandra Rao Bahadur Zamindar Garu (A.I.R. 1941 Mad. 91). In the case reported in A.I.R. 1936 Mad. 200 the suit was for a permanent injunction to restrain the defendants from quarrying or removing stones from the plaint property on the allegation that plaintiff has a right to the property and that the infringement entitled the plaintiff to injunction. On the contention of the defendant that the suit was not properly valued the Court held that the plaint cannot be deemed to be one substantially for declaration of title to the property and for injunction. The learned Judge in the course of the judgment observes as follows: "The fact that the question of title also may have to be incidentally gone into in deciding whether an injunction can be given is not any justification for holding that the suit is for declaration of title and injunction." In the case reported in A.I.R. 1941 Mad. The learned Judge in the course of the judgment observes as follows: "The fact that the question of title also may have to be incidentally gone into in deciding whether an injunction can be given is not any justification for holding that the suit is for declaration of title and injunction." In the case reported in A.I.R. 1941 Mad. 91 also the question arose whether plaintiff has to pay court-fee under S. 7, sub-s. 4, Cl. (c) or (d). In that suit plaintiff sought for an injunction to restrain defendant from carrying out projected works regarding his tanks which, it was alleged would endanger the customary flow of water to the plaintiff's tanks. It was contended by the defendant that though plaintiff has not prayed for a declaration of his right of easement, the suit was in substance one for declaration and injunction and should be valued under S. 7, sub-s. 4 (c) and not under (d). The Court repelled the defence plea. The learned Judge observes: "It seems to me that on the frame of the suit all that the plaintiff has to do is to prove by evidence that he has a subsisting right of easement to the extent and of the nature claimed. If the evidence establishes the existence of the right, there is no legal impediment which has to be removed before the injunction protecting that right will be granted." The learned Counsel for the defendant called our attention to the decision in Kayathan Roche v. Chinnaya Roche (A.I.R. 1939 Mad. 433). In that case the plaintiff framed the suit as one for injunction restraining the defendant from interfering with the plaintiff's possession on the allegation that the sale deed from plaintiff to the defendant in relation to the property was void. The Court held that the object of the suit was in effect the avoidance of the sale deed and that the suit should be valued under S. 7, sub-s. 4, Cl. (c). The facts of the case before us are different. The plaintiffs do not pray for a declaration of their possession. All that they pray for is a permanent injunction restraining the defendants from entering on the property and he is free to fix his own valuation. (c). The facts of the case before us are different. The plaintiffs do not pray for a declaration of their possession. All that they pray for is a permanent injunction restraining the defendants from entering on the property and he is free to fix his own valuation. It is true that in the case reported in 27 T.L.J. 829, the plaintiffs alleged that the udampady and the lease deed executed by the defendants are invalid. But they do not seek to cancel the documents. In so far as they did not seek to avoid the udampady and the lease deed, they could not be called upon to pay court-fee on the market value of the subject matter. For this position we place reliance on Ramautar Sao v. Ram Gobind Sao (A.I.R. 1942 Pat. 60). That was a suit for partition of plaintiffs' joint family properties. But in the plaint plaintiff alleged that in 1917 defendant 1 got up a colourable deed of partition of the joint family estate with a false recital of previous partition that the deed was never intended to be acted upon and that the deed did not represent any actual family arrangement. He paid only a court-fee of Rs. 15, treating his suit as a mere partition suit. On the contention of the defendants that the court-fee paid was insufficient the Subordinate Judge held that the suit was in substance one for declaration that the previous partition was not binding on the plaintiff and for cancellation of that document and the court-fee should be levied under S. 7, sub-s. 4 (c), Indian Court-fees Act. The High Court set aside the finding of the subordinate Court and held that the suit can be deemed in substance only as one for partition. The learned Judge observes: "In short the present plaint in terms asks only for a partition. We cannot import into it by necessary implication either a prayer for a declaration of title, or a prayer for any cancellation of the document as consequential relief, simply because, if the plaintiff can establish his allegations he can succeed without either." We do not therefore find our way to uphold the finding of the Lower Court on the basis of the decision reported in 27 T.L.J. 829. The court-fee paid by plaintiffs is sufficient. The court-fee paid by plaintiffs is sufficient. The order of the lower Court therefore is set aside and the revision petition is allowed with costs. Advocate's fee Rs. 15. The lower Court is directed to dispose of the appeal within a week from the receipt of the order in the lower court. Revision allowed.