MAN MOHAN KHEMKA v. KAILASH KUMAR SHARMA — 1983 DIGILAW 322 (CAL)

M. N. RAO, J. ( 1 ) THIS application for a Rule under S. 115 of the Code of Civil Procedure, on being moved against order No. 40-dated 9th September, 1983, made in Title Suit No. 315 of 1981, by the learned Munsif, 1st Court, Howrah, was opposed by Mr. Mukherjee, who appeared for the caveator opposite party. By such order, the exception as taken by the defendant / petitioner on valuation and court fees, were negatived. ( 2 ) THE plaintiff/opposite party brought the concerned Title Suit No. 315 of 1981 praying for (1) a decree of eviction of the defendant/petitioner from the suit property, (2) costs of the said property and (3) any other relief or relief's to which he would be entitled in law and equity. It has been claimed by the defendant/petitioner that the said suit was instituted on the incorrect allegations that he was a licensee in respect of the suit premises and the license was revoked by the plaintiff/opposite party In fact such stand as indicated above, was duly taken amongst others by the defendant/petitioner in his written statement and he further claimed to be a tenant in respect of a complete and duly separated flat consisting of two rooms, kitchen, bath, privy, verandah, courtyard, at a monthly rental of Rs. 150/-, payable according to English calendar month. It was further asserted that the suit premises, possession whereof was being claimed on eviction of the defendant / petitioner, would be worth not less than R. 30,000/- and as such, the concerned suit being a suit for possession, should have been valued at the amount. But, the plaintiff/opposite party wrongfully valued the suit at Rs. 25/- only on the allegation that for the purpose of court fee and jurisdiction the suit is valued at Rs. 25/- under S. 7 (vi) (b) (ii) of the Court fees Act. ( 3 ) IT was the categorical claim of the defendant / petitioner that the value of the premises can by no standard be such a paltry sum of Rs. 25/- and he duly challenged the valuation as made through a petition dated 10th August, 1983 and prayed for a decision on such valuation, first. ( 3 ) IT was the categorical claim of the defendant / petitioner that the value of the premises can by no standard be such a paltry sum of Rs. 25/- and he duly challenged the valuation as made through a petition dated 10th August, 1983 and prayed for a decision on such valuation, first. That application was opposed by the plaintiff / opposite party and the learned Munsif disposed of the application by the order as impeached, holding, inter alia, amongst others that the plaintiff / opposite party paid the court fees duly, on the basis of his pleadings and the relief's as claimed. The learned Court was further of the view that the suit was properly valued and Court fees as paid, was sufficient, apart from holding, that he had jurisdiction to try the suit. ( 4 ) IN fact, it was claimed and contended by Mr. Roy, appearing in support of the application, that the learned Munsif was wrong in holding that the plaintiff/opposite party was entitled and justified in valuing the suit at Rs. 25/- under S. 7 (vi) (b) (ii) of the West Bengal Court Fees Act, 1970, which deals with computation of fees payable and more particularly in a suit for recovery of possession of immovable property from a licensee upon revocation or termination of his licence, according to the amount at which the relief sought is required to be valued subject to the provisions of S. 11, where no such license fee is payable by the licensee. Mr. Roy also claimed that without making an enquiry under the said S. 11 and without finding out the value of the premises objectively the impugned order should not have been made or passed. It was contended further that on application of the objective standard of valuation of the premises and the relief as actually claimed or the accommodation, as available to the defendant/petitioner and from which he was sought to be evicted, the suit was improperly valued at Rs. 25/ -. Section 11 as mentioned above lays down that if the Court is of opinion that the subject matter of any suit has been wrongly valued, it may revise the valuation and determine the correct valuation and may hold such enquiry as it thinks fit for such purpose. As indicated earlier, according to Mr. 25/ -. Section 11 as mentioned above lays down that if the Court is of opinion that the subject matter of any suit has been wrongly valued, it may revise the valuation and determine the correct valuation and may hold such enquiry as it thinks fit for such purpose. As indicated earlier, according to Mr. Roy, the suit should have been on due and necessary, enquiry, directed to be valued at Rs. 30,000/ -. It was further claimed by Mr. Roy that if such valuation was made that would have denuded the earned Munsif of his power and jurisdiction to try and determine the same. While making the order as impeached, the learned Munsif observed the determinations in the case of Messrs Hind Wire Industries Ltd. v. Uttar Pradesh State Electricity Board and Anr, 1977 (2) CLJ 258 (not 211) (also reported in 1977 CHN 829), would not be applicable Mr. Roy contended that such view or the observation of the learned Munsif, was also wrong. The appellant in that case filed a suit in the City Civil Court, Calcutta, inter alia, for declaration that he defendant respondent No. 1 was not entitled to enforce and / or give effect to a Bank guarantee executed between the parties to the suit and to realise the amount as covered under the Bank guarantee from defendant No. 2 (Allahabad Bank), in giving effect to the said Bank guarantee, for permanent injunction restraining the defendant. No. 1 from enforcing and /or giving effect to the Bank guarantee executed between the parties to the suit on 28. 1. 75 and from realizing the amount covered by the Bank guarantee from defendant No. 2 in giving effect to the said Bank guarantee. The suit was valued at Rs. 200) and in the statement for valuation it was stated that for the purpose of Court fees and jurisdiction the suit had been valued at Rs. 200), the suit was for declaration and injunction and the plaintiff had valued the relief at Rs. 200) and that the plaintiff gave its own valuation under S. 7 (iv) (b) of the West Bengal Court Fees Act and that the court fees were paid accordingly and the trial court was in doubt as to whether the present suit was properly valued and whether it had the pecuniary jurisdiction to entertain the suit. 200) and that the plaintiff gave its own valuation under S. 7 (iv) (b) of the West Bengal Court Fees Act and that the court fees were paid accordingly and the trial court was in doubt as to whether the present suit was properly valued and whether it had the pecuniary jurisdiction to entertain the suit. Having heard the plaintiff on the point at issue, the court the view that where the suit was one for injunction restraining defendant No. 1 from enforcing or giving effects to a Bank guarantee the value of which was Rs. 91,900), the valuation as given by the plaintiff could not be accepted. The trial court therefore held that the court had no pecuniary jurisdiction to entertain the suit and being of that opinion, it directed the plaint to be returned to the plaintiff. The sain order was being challenged in this appeal. It was held on such facts that the germane issue is as to whether the valuation of the relief so claimed was validly revised by the Court or not. The suit undoubtedly comes within the purview of S. 7 (iv) (b) of the Court Fees Act and the plaintiff is entitled to put its own valuation to the relief claimed by it. It is also not in dispute that for the purpose of jurisdiction the valuation would be the same as for the court fees in view of S. 8 of the Suits Valuation Act Though the plaintiff is entitled to put its own valuation for the relief's claimed in a suit coming under S. 7 (iv) (b), it cannot put any arbitrary valuation of its own and the valuation so put would be subject to revision by the Court under S. 11 of the Court Fees Act which provides that if the Court is of opinion that the subject matter of any suit has been wrongly valued it may revise the valuation and determine the correct valuation and may hold such enquiry as it may thick necessary for such purpose, apart from observing that it is well-settled that the valuation is to be determined on the basis of the plaintiff's pleading and with reference to the relief claimed by the plaintiff. It is also well established that if there be no objective standard of valuation of the relief not withstanding the power of the Court to revise the valuation, the Court will not do so for the simple reason that the Court would have no material before it from which it can adjudge the valuation as given by the plaintiff to be erroneous. Such being the accepted principles involved, the short question that arises for consideration is as to whether on the plaint it can be said that the relief claimed can be valued with reference to any objective standard. It is contended by the appellant that there is no objective standard and there cannot be any genuine pre-estimation of the plaintiff's liability with reference to which the relief can be valued. This contention is not at all tenable. How far the plaintiff's claim would succeed or the extent to which the relief claimed would be admissible is not the criterion of valuation. If the value of the entire relief claimed in the plaint can be assessed and found out that would be the value of the relief irrespective of to what extent such relief would be admissible to the plaintiff on final adjudication. So far as the instant case is concerned, it appears from the plaint that the plaintiff is seeking to avoid forfeiture of sum of Rs. 91,900/-, which on the terms of the contract the respondent No. 1 had forfeited. So far as the instant case is concerned, it appears from the plaint that the plaintiff is seeking to avoid forfeiture of sum of Rs. 91,900/-, which on the terms of the contract the respondent No. 1 had forfeited. When the plaintiff is seeking to avoid forfeiture of such a liquidated amount, that amount really represents the value of the relief claimed Order VII, Rule 11 of the Code of the Civil Procedure postulates the rejection of a plaint in cases where (a) it does not disclose a cause of action; (b) the relief claimed is undervalued, and the plaintiff on being required by the court to correct the valuation within a time to be fixed by the Court fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required no the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint barred by any law, subject to the proviso that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorder, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. ( 5 ) MR. Mukherjee claimed that the facts of the case of Messrs Hind Wire Industries Ltd. v. Uttar Pradesh State Electricity Board and Anr (supra) being different and more particularly when an objective standard for valuation in that case was available, viz, the plaintiff was seeking to avoid forfeiture of a sum of Rs. 91,000/- the said determination is distinguishable and would neither apply nor available in this case. Mr. Mukherjee also claimed that the claim in the concerned suit, in which the impugned order has been made, being the eviction of a licensee, so the valuation as made was due and proper, the more so when, the suit was in effect, for recovery of possession of immovable property from licensee when no licence fee was payable. Mr. Mukherjee also claimed that the claim in the concerned suit, in which the impugned order has been made, being the eviction of a licensee, so the valuation as made was due and proper, the more so when, the suit was in effect, for recovery of possession of immovable property from licensee when no licence fee was payable. He also claimed that in such circumstances valuation of relief as opposed to valuation of "property" or "subject matter" of suit as asked for should be the basis of valuation and in support of such contentions, he relied upon the determination in the case of Amritalal Chatterjee v. Hiralal Chatterjee and Anr. 70 Calwn 857, where it has been indicated that the net result of the Court Fees (West Bengal Amendment) Act, 1963, appears to be first that the Special Bench decision of the Calcutta High Court in Sisir Kumar Dutta v. Susil Kumar Dutta, can be longer be taken to be good and effective law on the subject. The Amendment was obviously intended, both expressly and by necessary implication of the language used in the Amendment, to make it clear that an owner wanting to evict a licensee should not be put into a position where he has to pay either the same or even a larger amount of court fee that a landlord wanting to evict a tenant. That overriding purpose of the Amending Act, therefore, has to be respected and that is grant of relief to a person evicting a licensee on the ground of revocation or termination of his licence. That relief should not be rendered illusory by any constriction or interpretation introducing value of the "property" or "subject-matter" and ignoring the value of "relief sought" which was the only object of the amendment. Secondly, the use of the expression "subject to the provisions of section 8c" in the Amending Act does not make any in every case where the court is of opinion that there has been a wrong valuation and it should be revised and for that purpose the Court is competent to hold any enquiry it thinks fit. That power is expressly preserved in the Amendment ex abundanti cautela. Thirdly, to value the relief sought in the plaint there can be no hard and fast rule. That power is expressly preserved in the Amendment ex abundanti cautela. Thirdly, to value the relief sought in the plaint there can be no hard and fast rule. Every relevant consideration might be considered by the court and the Court Fees Act expressly and impliedly makes a distinction between value of "relief" and value of "subject-matter" to the nature of suits described in the Act. The Amending Act, therefore, in permitting valuation of the "relief" was not adopting any unusual principle but a very well recognized principle. It has also been observed in that case that the Court Fees (West Bengal Amendment) Act, 1963, does no longer speak about the valuation of the "property" or "subject matter" but uses the significant words "the relief sought is valued", Valuation of the "relief sought", therefore, is not the same thing as valuation of the "property" itself or the "subject matter" of the suit. The value of the relief is now the value of the suit. That is the new criterion under the amendment. That determination has further observed that the whole purpose and object of S 8c of the Court Fees Act is based on the court's power to revise a wrong valuation and the court's power to determine a correct valuation and for that purpose to make such enquiry as the Court thinks fit. The basis of action by the Court under S. 8c is wrong valuation. The modus operandi for correcting that wrong valuation is the court's power to hold such enquiry as it thinks fit. Even without the words, "subjects to the provisions of S. 8c' in S. 7 (VA) (b) (ii) of the new amendment, S. 8c would in any event apply in any case of wrong valuation whether it is a case of licence under S 7 (VA) (b) (ii) or any other case under any other of section that Act. Out of abundant caution the Amendment expressly preserved court's power to correct a wrong valuation and to hold an enquiry for that purpose, lest it was thought that under the Amendment that power of the court was lost. Mr. Mukherjee also indicated that on basis of objective standard of valuation, which is required to be followed in this case, only relief is to be valued and not the property and in the matter of valuing a plaint, the defence as put forward would not be relevant. Mr. Mukherjee also indicated that on basis of objective standard of valuation, which is required to be followed in this case, only relief is to be valued and not the property and in the matter of valuing a plaint, the defence as put forward would not be relevant. ( 6 ) IT should be mentioned here that as similar question as in this case was involved in the case of Abdul Khalek Khan, J. Shri Bimal Chandra Ganguly and Ors, C. O. No. 2217 of 1983, arising out of order No. 66 dated 2nd July 1983, made in Title Suit No. 18 of 1981, by the learned Munsif, Fifth Court, Howrah and where Mr. Shayamprasanna Roy Chowdhury being assisted by Mr. Sukmar Dutta appeared for the petitioner and Mr. Ukil being assisted by Mr. D. P. Mukherjee appeared for the opposite parties, the learned Advocates appearing as such, agreed that further arguments would not be advanced and Mr. Roy Chowdhury, after adopting the arguments of Mr. Roy Chowdhury, after adopting the arguments of Mr. Roy in the other case as indicated above, firstly referred to the decision in the case of Taramoni Chakraborty and Ors. V. Md. All haider, 80, CWN 1082, where it has been observed that in a suit brought by a mutwali for recovery of possession of wakf property governed either by S. 7 (iv) (b) or S. 7 (v) of the West Bengal Court Fees Act, 1970, the valuation of the property given by the plaintiff in his plaint is not final; the court has power to hold an inquiry under S. 11 for determining whether the suit has been correctly valued or not whether the relief of recovery of possession of wakf property or the market value of such property has been correctly assessed or not. In an inquiry under S. 11, the Court may not take secular properties as comparable units but might try to find out the market value, if any, of the wakf property in dispute. But the Court cannot decline to hold an inquiry and examine the correctness or otherwise of the valuation of such property. In an inquiry under S. 11, the Court may not take secular properties as comparable units but might try to find out the market value, if any, of the wakf property in dispute. But the Court cannot decline to hold an inquiry and examine the correctness or otherwise of the valuation of such property. If the Court declines to hold an inquiry and dismisses the defendant's objection in limie, it commits a jurisdictional error and its decision is liable to be sit aside by the High Court, and secondly, to that case of Shambhu Nath Singh and Ors v. Sankarananda Banerjee, 1981 (1) CLJ 361, where it has been observed amongst others that if objective standard is available clause (vi) ( ) of S. 7 and the provisions in S. 11 will have to be read together i. e. an enquiry as to valuation is to be made. ( 7 ) SECTION 7 (vi) includes the case of recovery of possession against trespassers where no declaration of title is either asked for or necessary for the lic and these provisions also govern the cases where recovery of possession is asked from a licensee upon revocation or termination of the licence. These provisions are thus appropriate for suits for recovery of possession of immovable property from a trespasser where no prayer for declaration is either prayed for is necessary. Section 7 (v) governs other classes of suits from trespassers. There may also be classes of suits for possession which are not governed by the provision of S. 7 (vi) viz in some suits for possession, possession is the main and real relief and the prayer for declaration, an ancillary to the prayer of possession while in other suits declation of title is the real relief an possession is asked for as a consequence of such prayer. The first class of suits would not be governed by S. 7 (v) but they would be guided by S. 7 (iv) (b ). Section 7 (v) govern he suits and proceedings for possession of land, buildings and gardens subject to exceptions and of such exception in S. 7 (vi), which as indicated above, apply to cases where no declaration of title of property is either prayed for or necessary for the disposal of the suit viz. , to eject a trespasser; or when the defendant, who is in illegal possession was a licensee. , to eject a trespasser; or when the defendant, who is in illegal possession was a licensee. The suits in both the cases under consideration where for recovery of possession from trespassers and with out any prayer for declaration of title and it cannot also be doubted or disputed that in view of the case of Bard anath Karmakar v. Golak Nath Karmakar, reported in ILR 1971 Cal 306 and the determinations in the case of Sri Rathnavaramja v. Smt. Vimala, AIR 1961 SC 1299 , if there is no objective standard of valuation then the plaintiff can put his own valuation and further more, since the matter of Court fees is a question purely between the plaintiff and the State, the defendant can neither question nor have any say in the matter of valuation. It has been observed in the Calcutta decision as indicated above the apart from the above, the defendant even though acting honestly, cannot agitate the matter before the superior Court by way of appeal or in revision though in that case the defendants were given a hearing. In fact such were also the contentions of Mr. Mukherjee and Mr. Ukil. ( 8 ) AS indicated earlier, the question of Court fee for recovery of possession against a licensee on revocation or termination of licences will be governed by S. 7 (vi) (b ). There may be a licence fee payable by the licensee to the less or and it that case ad valorem Court fee would be required to be paid on the amount of licence fee, which is payable for the whole year preceding the institution of the suit. When no such licence fee is payable, subject to the provisions of S. 11 of the West Bengal Court Fees Act, 1970, which is the verbatim reproduction of S. 8c of the Court Fees Act 1870 as inserted by Act, VII of 1935 in Bengal, the plaintiff may put his own valuation, which again under S. 8 of the Suits valuation Act should be the value for the purpose of jurisdiction. Section 8c as mentioned above, which is the equivalent provision like S. 11 of the present Act, has enlarged the power of the Court to revise the plaintiff's valuation and determine the correct valuation. Section 8c as mentioned above, which is the equivalent provision like S. 11 of the present Act, has enlarged the power of the Court to revise the plaintiff's valuation and determine the correct valuation. The Whole idea behind such incorporation is to revise a wrong valuation and to authorise the Court to determine the correct valuation and for that purpose, to make such enquiry as the Court thinks fit and proper and such authority, can only be exercised if the valuation as made or given is wrong. As observed in the case of Amritalal Chatterjee v. Hiralal Chatterjee (supra), even without the section, the principle of the same or underlying the same, would apply and whether S. 11 of the present Act is there or not, the Court has always the power to revise valuation and S. 11 has been mentioned in S. 7 (vi) of the Act ex abundanti cautelo viz, as a measure of abundant caution. Such should also be the intention behind S. 7 (vi) (b) (ii ). ( 9 ) WHERE there is no basis for valuation, the plaintiff may even make an imaginary valuation subject to the limitation that proper Court fees should be paid if the Court so directs on enquiry. But, one thing is certain that the valuation initially rests with the plaintiff and not the Court. On the interpretation of the words "subject to provisions of S. 11", the difficulty in exercising the power would appear in the absence of any objective standard and such power can be availed of or resorted to only when there is an objective standard. Thus, when an objective standard for valuing the relief would be available, Court will be empowered to amend the valuation. But if there is no such objective standard, the valuation as put forward by the plaintiff should prevail. Thus, no such objective standards being available in these case under consideration, the judgments and orders as impeached, cannot be interfered with and so, he concerned Rules are discharged. There will be no order as to costs. The judgments and orders as impeached are thus affirmed. Rule discharged.