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1976 DIGILAW 147 (MP)

Harishankar v. Shivsingh

1976-11-16

C.M.Lodha

body1976
ORDER Lodha, J.- 1. The defendants, Hari Shankar and Suresh Chandra, have filed this revision application against the order dated 19-6-72 by the first Additional District Judge, Gwalior by which issue No. 8 pertaining to the question of Court-fee was decided in favour of the plaintiff non-applicants. 2. The facts relevant for the purpose of deciding this revision application may be stated as follows. 3. The plaintiff Shivsingh filed the suit on 17-2-64 for declaration to the effect that the property in dispute belonged to the plaintiffs. It was further prayed that a perpetual injunction may be issued against the defendant petitioners restraining them from interfering with the plaintiff's possession over the suit property. The defendant Smt. Janki Bai who died on 12-12-68 after the institution of the suit was the aunt of the plaintiff. Her husband Yashwant Rao and the plaintiff's father Bapu Sahib were real brothers. The plaintiff's case is that they were members of the joint Hindu family till 1924 when Yashwant Rao died. It is alleged by him that after the death of Yashwantrao a mothly maintence af Rs, 150/- was fixed for Smt. Janki Bai and the plaintiff became entitled to get the whole of the property belonging to Yashwant Rao and Bapu Sahib. He goes on to state that Smt. Janki Bai wanted to alienate a part of the property in dispute, and hence the suit. 4. The plaintiff fixed the valuation of the suit for declaration as Rs. 25,000/- and for temporary injunction Rs. 100/-. For the relief of declaration he paid fixed Court-fee of Rs. 20 and for purposes of perpetual injunction he filed Court-fee of Rs 20. Thus the suit was brought on a Court-fee Rs. 40/-. The suit was resisted by the defendants interalia on the ground that the Court-fee should have been paid for the relief of injunction on the valuation of Rs. 25,000/-. Issue No.8 which deals with the question of Court-fee was taken as a preliminary issue and the learned first Additional District Judge, Gwalior, by the impugned order held that the Court-fee was proper and sufficient. 5. Mr. N.K. Jain counsel for the petitioners has urged that under the provisions of section 7(4)(c) of the M.P. Court Fees Act advalorem Court fee ought to have been filed on the valuation of Rs. 25,000/- for the relief of perpetual injunction. 5. Mr. N.K. Jain counsel for the petitioners has urged that under the provisions of section 7(4)(c) of the M.P. Court Fees Act advalorem Court fee ought to have been filed on the valuation of Rs. 25,000/- for the relief of perpetual injunction. It has been argued by him that by virtue of Suits Valuation Act, it was not open to the plaintiff to put a different valuation for injunction from the one he had put for the purpose of jurisdiction. In support of his contention he has relied upon Shamser Singh v. Rajinder Prasad and others, AIR 1973 SC 2384 . Idol Shri Shriji v. Chaturbhai v. Mangat bhai Patel, 1964 JLJ 448 = AIR 1965 MP 4 . Motiram v. Daulat, 23 MPLC 74= AIR 1939 Nag 50. Baldeoram v. Nathulal, 1963 JLJ SN 8 & Gyanchand v. Halkibai, 1963 JLJ SN 203. 6. On the other hand Mr. Sahasrabudhe, learned counsel for the plaintiff-non-petitioners has urged that the petitioners have no right to move this Court by way of revision on the question of adequacy of Court-fee payable on the plaint. In support of his contention he has relied upon Shri Rathnavarmuraja v. Smt. Vimla, AIR 1961 SC 1299 & Hari Narayan v. Williams, AIR 1976 All 441 . In the alternative he has also submitted that the Court-fee paid is sufficient and in support of this alternative submission he has relied upon Malji Vs. Kesrimal, 1963 JLJ 150; 7. In Shrj Rathnavarmaraja v. Smt. Vimia (supra), their Lordship observed as follows:- "Whether proper Court fee is paid on a plaint is primarily a question between the plaintiff and the state. How by an order relating to the adequacy the Court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again the jurisdiction in revision exercised by the High Court under section 115 of the Code of Civil procedure is strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper Court-fee has not been paid the plaintiff has still no right to move the superior Courts by appeal or in revision against the order ad-judging payment of Court-fee payable on the plaint." 8. In Vasu v. Chakki Mani, AIR 1962 Keraa 184, it was pointed out that no revision will lie against the decision on the question of adequacy of the Court-fee at the instance of a defendant for the simple reason that the adequacy or otherwise of the Court-fee paid is not a matter in which be is interested unless the question of Court-fee involves also the question of jurisdiction of the Court either to try the suit or entertain the appeal. This ruling of the Kerala High Court was approved by their Lordships of the Supreme Court in a later decision reported in Shamsher Singh v. Rajinder Prasad, AIR 1973 SC 2384 . 9. In Hari Narayan v. Williams, AIR 1976 All 441 . it was observed that the defendant has no right of revision against the decision on adequacy of Court-fee by the trial Court unless it affects jurisdiction of the Court, Further it was held that even if there is an erroneous decision on the question of Court-fee which does not affect jurisdiction of the Court to try a suit, no revision lies at the instance of the defendant. 10. It may be mentioned here that in Shamsher Singh v. Rajinder Prasad, AIR 1973 SC 2384 , relied upon by the learned counsel for the petitioner, no departure was made from the rule laid down by the Supreme Court in the earlier case (supra) 1961. S.C. 1299. The position thus appears to be well settled that unless the question of Court-fee involves the jurisdiction of the Court, no revision will lie against the decision on the question of adequacy of Court-fee, at the instance of the defendant. 11. S.C. 1299. The position thus appears to be well settled that unless the question of Court-fee involves the jurisdiction of the Court, no revision will lie against the decision on the question of adequacy of Court-fee, at the instance of the defendant. 11. Learned counsel for the petitioners, however, urged that the question of jurisdiction was involved in the present case as the defendant's contention was that the market value of the property was one lakh rupees and in that case the suit would not have been triable by the 1st Additional District Judge, Gwalior. It may be pointed out that no issue was struck on the question of market-value of the property, nor any evidence appears to have been led by any of the parties on the question of market value. It is urged by the learned counsel for the petitioners that the petitioners wanted to lead evidence on the question of market value of the property, but they were not allowed to do so by order dated 22nd April 1972. It is worthy of note that inspite of their prayer for leading evidence having been disallowed, the petitioners did not prefer any revision against that order. However, Court-fee for declaration is, admittedly, fixed one and, therefore, so far as the relief for declaration is concerned it would not have made any difference whether the suit is valued for Rs. 25,000/- or one lakh. But the argument of the learned counsel is that the District Judge had arranged the distribution of the work in such a way that suits of valuation upto Rs. 25000/- were transferred to 1st Additional District Judge, Gwalior and those of higher valuation were retained by him on his own file. In the first place, no such order has been placed before me and in any case it is not denied that the first Additional District Judge had unlimited original jurisdiction and be was competent to try a suit of any valuation. Thus, for arguments sake, even if it is accepted that the District judge had so made up his mind that be would transfer suits of valuation upto Rs. 25,000/- to the Court of the 1st Additional District Judge and retain suits of higher valuation on his own file that would not make any difference so far as the pecuniary jurisdiction of the Additional District Judge is concerned. 25,000/- to the Court of the 1st Additional District Judge and retain suits of higher valuation on his own file that would not make any difference so far as the pecuniary jurisdiction of the Additional District Judge is concerned. I am not, therefore, able to accept the contention of the learned counsel that the 1st Additional District Judge had no jurisdiction to try the suit. 12. In Malji YS. Kesrimal, 1963 JLJ 150 the suit was one for declaration and permanent injunction and the plaintiff valued the claim for the purpose of permanent injunction at Rs. 20/- thought he valued the suit for declaration at Rs. 11,000/- for the purpose of jurisdiction. Fixed Court-fee of Rs. 20/- was paid as on suit for declaration simplicitor. The learned Judge held the Court-fee to be sufficient. 13. The learned trial Court relying on certain authorities held that a different valuation could be fixed for the purpose of perpetual injunction under Art. 17. Sch. 2 of the Court Fees Act I do not feel inclined to record any definite opinion as to the correctness of the view taken by the learned trial Court in as much as for purposes of this case it is sufficient to observe that the question of Court-fee does not affect the jurisdiction of the trial Court to try the suit and hence no revision can lie at the instance of the defendant. As observed above, in the present case whether the valuation of the suit is Rs. 2500/- or one lakh and whether Court-fee as regards injunction is paid on Rs. 100/- or Rs. 25000/-, the suit is triable by the learned First Additional District Judge, before whom it is already pending. In this view of the matter, the finding of the learned trial Court on issue No.8 cannot be called into question. 14. For the reasons stated above this revision application fails and is hereby dismissed. But in the circumstances of the case, I make no order as to costs.