Research › Browse › Judgment

Patna High Court · body

1957 DIGILAW 98 (PAT)

Mohammad Wasiul Haque v. Jagarnath Chaudhury

1957-04-03

C.P.SINHA

body1957
Judgment C.P.Sinha, J. 1. This is an application against the order of the Court below demanding ad valorem court-fee under Section 7(iv) (c) of the Court-fees Act, failing which the plaint and the memorandum of appeal have been directed to be rejected, and a letter has been directed to be written to the District Magistrate for realising the same from the plaintiff. 2. The suit is for setting aside a decree passed against the plaintiff in Rent Suit No. 2683 of 1933 and of the sale of some 8 bighas 13 Kathas 13 dhurs of land in execution of the said decree. 3. The first relief asked for is for setting aside the decree and the sale in pursuance of which the defendant had never obtained possession and the plaintiff, it is alleged has always been in possession and in that view of the matter, the efforts at interference with the plaintiffs possession by the defendant are wrongful. The second relief is that, in view of the first relief, mentioned above, the decree and the sale referred to above be set aside. There was a third relief also to the effect that, in case the plaintiff be deemed to have been out of possession, a decree for recovery of possession be passed. 4. When the plaint was presented, the Sarishtadar of the Court reported that the suit was one for declaration and consequential relief, and, therefore, ad-valorem court fee was payable. Thereafter, it appears relief No. 3 was struck off by the plaintiff, and the first Court accepted the contention of the plaintiff that court fee on the sum of Rs. 79/1/- the amount of the decree, should be charged. When the matter was in appeal, court fee was paid on the said sum of Rs. 79/1/-. In the plaint, however, the value of the property sold, namely, 8 bighas 13 kathas 13 dhurs, was given as Rs. 600/-. The appellate Court, after hearing the parties, held that ad valorem court fee on the value of the property, namely Rs. 600.00 had to be paid both on the plaint as well as on the memorandum of appeal. 5. It is submitted by Mr. 600/-. The appellate Court, after hearing the parties, held that ad valorem court fee on the value of the property, namely Rs. 600.00 had to be paid both on the plaint as well as on the memorandum of appeal. 5. It is submitted by Mr. Ghose that this case is a case of pure declaration and not a case covered by Section 7(iv)(c) of the Court-fees Act, and, therefore, ad valorem court fee on the value of the suit land is not payable. 6. Court-fees Act comes in the category of fiscal enactments and must be construed strictly. At the same time, it is an established principle that court-fee is payable on the substance of the relief asked for, and that, even though the plaintiff might try to conceal the real relief which he seeks, and has framed his relief in a manner which might attract the provision of the Court-fees Act under which a lesser court fee is payable, the Court is entitled to look to the substance and not to the mere form of the relief. In the present case, in my judgment the relief asked for is for a declaration that the decree passed is null and void, and, in consequence of this declaration the sale held in execution of that decree is to be set aside and the plaintiffs possession is to be confirmed. The plaintiff has not said in very clear words that his possession be confirmed but the substance of the very first relief, in my opinion, is that on setting aside the decree and the sale, the plaintiffs possession be confirmed. In that view of the matter, the case is one where a declaration with consequential relief has been asked for, and, therefore, the proper court-fee payable is one under Section 7(iv)(c) of the Court-fees Act. The plaintiff having himself valued the suit lands at Rs. 600.00 ad valorem court-fee on that valuation both on the plaint as well as on the memorandum of appeal has been rightly demanded from the plaintiff in the Court below. The plaintiff having himself valued the suit lands at Rs. 600.00 ad valorem court-fee on that valuation both on the plaint as well as on the memorandum of appeal has been rightly demanded from the plaintiff in the Court below. My attention has been drawn to several cases, namely Brij Krishna Das V/s. Murli Rai, 4 Pat L. J. 703: (AIR 1920 Pat 656) (A) (Firm), Bhimraj Devi Baksh V/s. Gaya Prasad Sahu AIR 1941 Pat 532 (B) T.N. Sen V/s. Toriautnessa Bibi, 35 Cal L. J. 144: (AIR 1922 Cal 242) (C) and Zinnatunnessa Khatun V/s. Girindra Nath Mukerjee, ILR 30 Cal 788 (D), cases which have been referred to in the judgment of the Court below and also to the case of Sri Krishna Chandra V/s. Mahabir Prasad, ILR 55 All 791: (AIR 1933 All 488) (FB) (E), by Mr. Ghose. It is not necessary, however, to deal with these cases because the question will depend upon the peculiar facts of each particular case. The case of Mt. Rup Rani V/s. Bithal Das, ILR 13 Luck 628 : (AIR 1938 Oudh 1) (FB) (F), has reviewed a large number of cases, and it has been held that the question o£ the proper court fee payable in a suit is to be determined on the substance of the claim to be gathered from the whole plaint, and not merely on the language of the relief claimed in the plaint, and, that it is the duty of the Court to look to the substance of the plaint, and not to allow itself to be deceived by the language used for evading the payment of proper duty by concealing the real purpose of the suit. It has been further laid down that, even though a consequential relief may not be expressly prayed for, yet if such a relief is implicit in the declaration and is a necessary consequence of it, it must be deemed to be included within the declaration prayed for in the suit. It has been further laid down that, even though a consequential relief may not be expressly prayed for, yet if such a relief is implicit in the declaration and is a necessary consequence of it, it must be deemed to be included within the declaration prayed for in the suit. In that particular case, a person who was a party to a decree asked for a declaration about the decree being illegal and void, and it was held that the grant of such a declaration in his favour necessarily had the effect of setting aside the decree and relieving him of the obligations under it, and so in such a case the consequential relief should be deemed to be implied in the prayer for the declaration claimed and the plaint should, therefore, bear an ad valorem court-fee under Section 7 (iv) (c) of the Court-fees Act. My attention was drawn to another case of this Court in which a similar view was taken by Mr. Justice Reuben (as he then was). In that case Civil Revision No. 350 of 1948 Daulatram V/s. Raja Bahadur K.N. Singh, D/- 13-9-1948 (Pat) (G), the suit had been filed for a declaration that the decree passed in a certain title suit was obtained by fraud and was not valid and binding on the plaintiff. The Subordinate Judge had held, on a consideration of the whole plaint that the plaint was really one to set aside the decree and that the court-fee payable was "ad valorem under Section 7 (iv) (c) of the Court-fees Act, and the order of the Court below was upheld by this Court. In my judgment, therefore, the Court below was right in demanding the court-fee ad valorem on the sum of Rs. 600.00 both on the plaint as well as on the memorandum of appeal. 7. If the proper court-fee is not paid by the plaintiff or the appellant, the only result is that the plaint or the memorandum of appeal shall be rejected (Sec.10 (11) of the Court-fees Act). In the present case, however, it appears that the court below has given a further direction for writing a letter to the District Magistrate (perhaps it meant the Collector) for realisation of the deficit court fees from the plaintiff. That part of the order, in my opinion, is uncalled for, and that must be set aside. 8. Mr. In the present case, however, it appears that the court below has given a further direction for writing a letter to the District Magistrate (perhaps it meant the Collector) for realisation of the deficit court fees from the plaintiff. That part of the order, in my opinion, is uncalled for, and that must be set aside. 8. Mr. Ghose also submitted that some time should be given to the petitioner to pay the deficit court-fee. Later, my attention was drawn to the order of the Court below dated 13-4-1955 to the effect that, as the appellant did not pay the courtfee by the date fixed, namely, 13-4-1955, and as he did not respond to calls, the appeal was dismissed for default in presence of the respondent. I heard Mr. Ghose on the point as to whether in the circumstances namely, that the Court below had fixed 13-4-1955 as the final date for payment of the deficit court-fee and, in default, the appeal was to be dismissed that the appellant did not pay the court-fee on the date, nor did he appear on repeated calls and the appeal was dismissed, and that the present application is against the order dated 31-3-1955 and the order dated 13-4-1955 has become final any time could now be granted by this Court for enabling the petitioner to pay the deficit court-fee. I have considered the matter, and, in my opinion, this Court cannot grant him any time. The application, as I said, is not against the order dismissing the appeal but is against the earlier order asking for deficit court-fee. Mr. Ghose drew my attention to the case of Putta Venkatakrishniah V/s. Sheikh Alli Sahib, AIR 1938 Mad 921 (H), in which the Court of second appeal had allowed time to pay the deficit court-fee, although the appeal had been dismissed. That case, in my opinion, is no authority for the proposition that, if the appeal has been dismissed and the higher Court has not been moved against that order, which became final, the revisional Court can give time for payment of the deficit court-fee. In that case, the second appeal was from the decree itself dismissing the suit and, therefore, the finality of the dismissal of the appeal was in question before the second Appellate Court. In Mst. In that case, the second appeal was from the decree itself dismissing the suit and, therefore, the finality of the dismissal of the appeal was in question before the second Appellate Court. In Mst. Anantia V/s. Ramlagan Singh, 1953 BLJR 267 : ( AIR 1953 Pat 306 ) (I), the order of the Court below was held to be incorrect in regard to court-fee, and the application was allowed and the suit was restored to file. This is a case which is entirely on different facts. In another case to which my attention was drawn Basuki Prasad Singh V/s. Satya Kinkar, AIR 1950 Pat 470 (J), it was held that where an order of the lower Court demanding deficit court-fee is set aside, in revision the High Court ought, of necessity as a consequence, to set aside the order of the lower Court rejecting the plaint for nonpayment of the deficit court-fee. In my opinion, therefore, none of these cases helps Mr. Ghose. It appears to me that the petitioner should have taken steps provided by law to set aside the order of the Court below dated 13-4-1955, and that order having become final, this Court in revision against a different order dated 31-3-1955 cannot possibly undo the effect of that order. 9. In the result, the application fails, and it is dismissed but there will be no order for costs.