BHAGWAT PARSHAD v. MUKAT LAL — 1985 DIGILAW 3 (HP)

JUDGMENT H. S. Thakur, J—This revision petition is directed against the order and judgment of the learned Sub-Judge (1), Shimla dated 21-8-1980 whereby the learned Sub-Judge while allowing the application for the amendment of the plaint, directed the petitioner (hereinafter to be referred to as the plaintiff) to affix the court-fee on the value of the suit property as assessed by him at Rs. 40,0(0, 2. A few facts as reflected in the revision petition as also in the plaint may be stated. The plaintiff filed a suit for permanent prohibitory injunction restraining the deceased-respondent No. 1 and respondents 2 to 4 (hereinafter to be referred to as the defendants, from alienating, transferring or creating any charge on the ancestral property of the parties as mentioned in the plaint. The plaintiff also obtained a temporary Injunction against the defendants in this behalf, but the same was ultimately vacated on 26th June, 19 0 The deceased-defendant No 1 and defendants 2 to 4 soon thereafter transferred the property by sale for a total consideration of Ks. 80,Uv0 in favour of respondents Nos. 5 and o (hereinafter to be referred to as the transferee defendants). The deed of sale was duly registered and, according to the sale deed, the possession of the property was delivered to the transferee-defendants. Consequently, the plaintiff filed application for amendment so as to join transferee-defendants as parties to the suit and inter alia also to add a prayer for a declaration that the sale dated 4-7-80 registered at No. 48 } is null, void and illegal and is inoperative against the rights of the plaintiff and the same is not binding on the plaintiff. The amended plaint was also filed by the plaintiff thereafter. Both the applications, that is, one for the addition of transferee-defendants as defendants under Order 1, Rule 10 and the other for the amendment of the plaint were allowed by the trial court. However, while allowing the amendment of the plaint, the plaintiff was directed to affix the court-fee on the value of the suit property assessed by the plaintiff at Rs. 40,000, on or before 6-9-1980. The plaintiff thereafter filed an application praying that time be granted to him to pay the court-fee. However, while allowing the amendment of the plaint, the plaintiff was directed to affix the court-fee on the value of the suit property assessed by the plaintiff at Rs. 40,000, on or before 6-9-1980. The plaintiff thereafter filed an application praying that time be granted to him to pay the court-fee. Before any order was passed on the said application, the plaintiff filed this revision petition and obtained an order from this Court on 5-9-1930, staying further proceedings in the case. 3 It is contended by Mr. K. D Sud, learned Counsel for the plaintiff, that the direction as given by the trial court to affix court-fee at Rs. 40,000, is illegal and deserves to be set aside. It is argued by him that only the allegations in the plaint are to be seen for determining the court-fee to be paid in a suit. It is further stressed by him that court-fee can even be avoided by skilful drafting. According to him, the plaintiff can seek separate district reliefs. It is also contended that the proper course for the court was to allow the amendment and to ask the defendants including the transferee-defendants to fil written statement and in case they raised objections regarding court-fees, such objections could be decided. He has referred to a decision in Smt. Surjit Kaur alias Shankari v. Sawaran Singh and another, AIR 1965 Current Law Journal (Pb) 466, In this judgment, it has been held that in a suit by a person for a declaration that the property sold by an auction sale was his property and was not liable to be sold in execution of a decree passed in a suit in which he was not actually or constructively represented falls under Schedule IT, Article 17 (iii) and not under section 7 (iv) (c) of the Court-fees Act. He has also referred to some other decisions but they are not relevant to the facts of the present case. 4. On behalf of the transferee-defendants, it is contended by Mr, Kailash Chand that the present suit is governed for the assessment of the court-fees under section 7 (iv) (c) of the Court-fees Act. According to him, it is a suit for declaration with consequential relief. 4. On behalf of the transferee-defendants, it is contended by Mr, Kailash Chand that the present suit is governed for the assessment of the court-fees under section 7 (iv) (c) of the Court-fees Act. According to him, it is a suit for declaration with consequential relief. He has referred to sections 31 and 34 of the Specific Relief Act, 1963 and has emphasised that no court shall make any declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. It is desirable to reproduce section 31 of the said Act for a ready reference : "31. (1) Any person against whom a written instrument is void or avoidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or avoidable, and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) if the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered, and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation” It is also pointed out by Mr. Kailash Chand that under Volume-I, Chapter-I-C (vi) of the Rules and orders of the Punjab High Court as applicable to Himachal Pradesh, it is provided that on the presentation of receipt of a plaint, the Court should examine it with special reference to the following points : (i) (ii) (iii) (iv) (v) (vi) Whether the plaint is liable to be rejected for any of the reasons given in Order VII, Rule 11." The learned Counsel has also drawn my attention to the Himachal Pradesh Court Fees Act, 1968. He has referred to section 7 (iv) (c) and the same may also be extracted : "7. He has referred to section 7 (iv) (c) and the same may also be extracted : "7. Computation of fees payable in certain suits.—The amount of fee payable under this Act in the suit next hereinafter mentioned shall be computed as follows : (i) (ii) (iii) (iv) In suits (a) (b) (c) for a declaratory decree and consequential relief—to obtain a declaratory decree or order, where consequential relief prayed ; according to the amount at which the relief sought is valued in the plaint or memorandum of appeal: Provided further that in suit coming under sub-clause (c) in cases where the relief sought is it reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by paragraph (v) of this section”. 5. Before the respective contentions of the learned Counsel are deter mined, it is proper to refer to the prayer made by the plaintiff in the amended plaint: "That the suit is being valued at Rs. 200 for purposes of court-fees for relief of injunction at Rs. 200 and the same is valued for jurisdiction purposes upon which the court-fee is being fixed. A fixed court-fee of Rs. 19.50 is also affixed on the plaint for the relief of declaration. The court has jurisdiction to try the case as the property in dispute is worth Rs. 40,000. It is, therefore, prayed that the suit of the plaintiff may kindly be decreed as against the defendants and since the plaintiff is exclusive owner of the building known as Khub Chand building 134/1 Lower Bazar Shimla, therefore, the defendants have no right to claim any interest thereon and they be restrained permanently from creating any charge upon it and to transfer it in any manner, personally and through their persons, agents etc., and they be prohibited from causing any loss to this building. In the alternative, it is submitted that if this house is not found to have been allotted to the plaintiff in the private partition, in that event also alternatively it may kindly be held that since it is an ancestral property, the defendants have no right, title and interest to cause any damage, loss or to transfer it in any manner or to create charge upon it directly or indirectly, personally and through their persons and agents etc. Also granting the declaration that the sale dated 4-7-80 registered at No. 483 is null and void and illegal and is inoperative against the rights of the plaintiff and the same is not binding on the plaintiff. Any other suitable relief as deemed fit under the circumstances of the case may also kindly be given to him." 6. He has also referred to sections 9 and 10 of the Himachal Pradesh Court Fees Act. The provisions may be extracted for a ready reference : "9. Power to ascertain net profits or market-value.—If the Court fees reason to think that the annual net profits or the market-value of any such land, house or garden as is mentioned in section 7, paragraphs (v) and (vi), have or has been wrongly estimated, the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other investigation as may be necessary, and to report thereon to the court. 10. Procedure where net profits or market value wrongly estimated.— (1) If in the result of any such investigation the Court finds that the net profits or market-value have or has been wrongly estimated, the Court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee ; but, if the estimation has been insufficient, the Court shall require the plaintiff to pay so much additional fee as would have been payable had the said market-value or net profits been rightly estimated. (2) In such case the suit shall be stayed until the additional fee is paid and if the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed." 7. The learned Counsel for the transferee-defendants has specifically referred to the decision in Sukh Lal and others v, Devi Lal and others, AIR 1954 Raj. 170. In this case, the plaintiffs were the sons of the respondent who was impleaded as defendant No 5 in the suit. The learned Counsel for the transferee-defendants has specifically referred to the decision in Sukh Lal and others v, Devi Lal and others, AIR 1954 Raj. 170. In this case, the plaintiffs were the sons of the respondent who was impleaded as defendant No 5 in the suit. The plaintiffs case was that their father, defendant No. 5, and the plaintiffs were members of the Joint Hindu Family and that defendant No. 5 sold certain property to defendants 1 to 4 by a sale-deed for a sum of Rs 800 and that the said property was ancestral property of the family and has been sold to the vendees without the consent of the plaintiffs and without any family necessity. The plaintiffs therefore, prayed that the sale deed executed by defendant No. 5 in favour of the vendees-defendants be cancelled The plaintiffs valued their suit at Rs, 6,000 for the purpose of Jurisdiction. They alleged that they were in possession of the property in question and paid a court-fee of Rs. 7 only. The question arose about the payment of the court-fee. It was contended on behalf of the defendants that the plaintiffs suit was not one for mere declaration only but it was a suit for a declaration and consequential relief and that the proper court-fee was under section 7 iv) (o) according to the amount at which the relief sought was valued in the plaint and that the plaintiffs had valued their claim for purposes of jurisdiction at Rs. 6,000 and, therefore, defendant-appellants should have paid court-fee on that amount. Under the circumstances, the Court observed as under : "4, Now, we have no doubt that in order to determine the proper court-fee payable on a plaint in a particular case, the true principle is that the plaint as a whole should be looked at and that it is the substance of the plaint and not its ostensible form which really matters It is true further that caution must be observed so that nothing is imported into the plaint, which it really does not contain either actually or by necessary implication. It is also well settled that in construing the plaint, the Court must takes the plaint as it is and not as it ought to have been. (Vide Kalu Ram v. Babu Lal, AIR 1932 All 485 (FB) (A) and Mt. It is also well settled that in construing the plaint, the Court must takes the plaint as it is and not as it ought to have been. (Vide Kalu Ram v. Babu Lal, AIR 1932 All 485 (FB) (A) and Mt. Rupia v. Bhatu Mahton, AIR 1944 Pat 17 (FB) (B)." It was further observed ; "5. Applying the above principles to the plaint in the present case, we have no hesitation in saying that the contention of learned Counsel for the defendant-appellants, that the plaintiffs merely asked for a declaration and did not pray for any consequential relief, is not brone out by the facts. Learned Counsel placed his reliance on the fact that it was not necessary for the plaintiffs to claim any consequential relief in the present case, as they were in possession of the property in dispute. We may point out, however, that even though the plaintiffs were in possession of the suit property, their suit as laid, was clearly not for a mere declaration only but was actually and substantially for cancellation of the sale-deed. I his was certainly not asking for mere declaration. The plaintiffs sued to cancel a sale-deed executed by their father in respect of the joint family property which was ancestral and such a sale would be binding on them if they did not get the sale deed set aside or cancelled. Their suit is clearly covered by section 39 of the Specific Relief Act, which reads as follows : "any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable ; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled," 6. There is a difference between a suit for the cancellation of an instrument and one for a declaration that the instrument is not binding on the plaintiff. There is a difference between a suit for the cancellation of an instrument and one for a declaration that the instrument is not binding on the plaintiff. When the plaintiff seeks to establish a title in himself and cannot establish that title without re moving an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not In a position to get that decree or deed cancelled in toto”. "7. In this case, it is obvious that it would be impossible for the plaintiffs establish their title to the property in question unless they sued to remove an obstruction which would otherwise be insuperable because the sale made by the father would be binding upon the sons, unless it is set aside. We, therefore, hold that the present suit of the plaintiffs was substantially a suit not for a declaration that a certain sale-deed was inoperative against them but for the cancellation of the said sale deed in toto, and that Article 17 (iii) of Schedule II cannot possibly apply to such a suit, see-AIR 1932 All 485 (FB)(A), Zeb-ul-Nisa v. Din Mohammad, AIR 1941 Lah 97 (FB) (D) and AIR 1944 Pat 17 (FB) (B), and that, therefore, ad valorem court-fees must be paid. It is elementary that the law which will govern the payment of court-fee in the case of the present appeal, must be the law in force at the time at which the appeal was filed. The Rajasthan Court-fees (Adaptation Ordinance came into force on 24-1-1950 and will, therefore, apply in the present case. 9. The next question for consideration is whether court-fee must be held to be leviable under section 7 (iv) (c) or Article l Schedule 1 of the Court-fees Act. The Rajasthan Court-fees (Adaptation Ordinance came into force on 24-1-1950 and will, therefore, apply in the present case. 9. The next question for consideration is whether court-fee must be held to be leviable under section 7 (iv) (c) or Article l Schedule 1 of the Court-fees Act. The question assumes some importance, as although both under section 7 (iv) (c) and Article 1, Schedule 1 ad valorem court-fee is required to be paid the basis of valuation is not the same. According to section 7 (iv) (c), ad valorem court-fee has to be paid on the amount on which the relief sought is valued in the plaint or the memorandum of appeal, whereas Article 1, Schedule I requires the court-fee to be paid on the amount or value of the subject matter in dispute. The difference arises inasmuch as under the first provision, it is open to a plaintiff to put any arbitrary value upon the relief claimed by him, whereas in the latter case, the value is not arbitrary and is to be put according to the value of the subject-matter in dispute." In this case, the High Court ultimately held that the plaintiffs suit in the present case for the cancellation of the sale deed executed by their father was only a sum of Rs. 800 and further held that the court-fee payable was on this amount as they considered this to be the amount as the subject matter of the dispute for the purposes of the appeal. 8. Mr. M, R. Chaudhary, learned Assistant Advocate General, who has appeared on behalf of the State has urged that in the instant case the question of the revenue of the State is involved and, as such, he has to watch the interest of the State so that proper court-fee is paid. It is pointed out by him that the total consideration of the sale of the property is assessed at Rs 80,000 and accordingly the plaintiff is liable to pay court-fee on this amount. It is pointed out by him that the total consideration of the sale of the property is assessed at Rs 80,000 and accordingly the plaintiff is liable to pay court-fee on this amount. He has referred to section 10 of the Himachal Pradesh Court Fees Act and has placed reliance on a decision in Sundar Dass and others v Gurpartap Dass, AIR 1978 Punjab & Haryana 225 In that case also, under the Court-fees Act as amended by Court-fees Punjab Amendment Act (31 of 1953), a proviso similar to the one as contained under the Himachal Pradesh Court Fees Act was added. In this case, the plaintiff originally find a suit for a declaration to the effect that he is the Mahant of certain Akhara and, as such, is entitled to manage its affairs and realise rents and profits of the immovable property with permanent injunction restraining the defendant from interfering in the management of the Akhara and realising rent from the tenants of the Akhara in the shops. The portion "and realise rents and profits of the immovable property realising rent from the tenants of the Akhara in the shops" was later on omitted from the amended plaint. The plaintiff valued the original suit for the purpose of court-fees and jurisdiction at Rs. 130. The defendant joined issue with the plaintiff about the said valuation and the trial court decided that the suit was governed by section 7 (iv) (c) of the Court-Fees Act, 1870 and that by virtue of the second proviso added thereto by the Punjab Government Act, the valuation of the suit for the purpose of court-fee is to be worked but under clause (v) of section 7. The plaintiff came up to the High Court in revision. The plaintiff came up to the High Court in revision. The revision petition was, however, dismissed and made observations as under : " In the case before me the only object of the plaintiff in filing this suit (which is clear from the body of the plaint) is to establish his right to continue in possession of the Akhara properties and to manage them (the affairs of the Akhara) to the exclusion of the defendant who is on the other side claiming the same right as an alleged Mahant It is a clear suit for a declaration of being the Mahant which automatically contains within its scope the fight to be in possession of the properties of the Akhara and to manage them to the exclusion of every one else In addition to declaration of being the Mahant, the plaintiff has clearly claimed that (as such he has the right to manage its affairs. The affairs of the Akhara on the material side are nothing except to manage its properties. It cannot, therefore, be said that the plaint of the present suit has no reference to any property. The properties of the Akhara admittedly comprise of lands, houses, etc. That being so, they are capable of being valued in the manner contained in see-tion 7(v| of the Act." 9. I have heard the learned Counsel for the parties at length. Section 31 of the Specific Relief Act, 1963 has been reproduced earlier above. The learned Counsel for the transferee defendants has also referred to section 34 of the Specific Relief Act. The said section has, however, not been reproduced earlier. It is desirable to reproduce the same for a ready reference : “34. Section 31 of the Specific Relief Act, 1963 has been reproduced earlier above. The learned Counsel for the transferee defendants has also referred to section 34 of the Specific Relief Act. The said section has, however, not been reproduced earlier. It is desirable to reproduce the same for a ready reference : “34. Any person entitled to any character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." The aforesaid section 3 envisages that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. 10. The prayer clause of the amended plaint has been already re produced earlier above, The substance of the prayer clause is that the plaintiff besides seeking the relief of declaration and injunction has also sought a further relief that the sale made in favour of transferee-defendants be declared as null and void, etc. Keeping in view the observations in the aforesaid decisions and the provisions as contained under sections 31 and 34 of the Specific Relief Act, it appears that the suit is apparently for declaration with consequential relief. Once it is found that the suit is for declaration with consequential relief, the court-fee has to be paid as prescribed under section 7 (iv) (c) read with the proviso at the end and paragraph (v) of section 7 of the said Act. The result is that the plaintiff has to pay court-fee on the basis of the market value of the property in dispute. The property in dispute in the instance case is a house and accordingly the court-fee is to be paid on its market value. 11. In the amended plaint in paragraph 12, it has been stated by the plaintiff that the court has jurisdiction to try the case as the property in dispute is worth Rs. 40,000. The property in dispute in the instance case is a house and accordingly the court-fee is to be paid on its market value. 11. In the amended plaint in paragraph 12, it has been stated by the plaintiff that the court has jurisdiction to try the case as the property in dispute is worth Rs. 40,000. It may be pointed out that in the original plaint, the plaintiff and not mentioned the value of the house in dispute. In the amended plaint, the plaintiff has further stated that the property in dispute has been sold on 4-7-1980 to vendee-defendants and has been registered at No. 483. In the sale-deed, the property is transferred for a total consideration of Rs. 80,000. In fact, the sale-deed was not in existence at the time when the original plaint was filed. 12. It appears that the trial court considering that the plaintiff has valued the subject-matter at Rs. 40,000, directed the plaintiff to pay the court-fee on the said amount Obviously, this direction was made by the trial court considering that the market value of the subject matter was Rs. 40,0G0 and that it was a suit for declaration with consequential relief. It is not disputed that the property in dispute has been sold for a total consideration of Rs. 80,000, It appears that the learned trial court did not look into the sale-deed wherein the price of the property in dispute was mentioned as Rs. 80,000. The defendants, including the transferee- defendants, have not filed their written statement. As such, I am of the view that the trial court under the belief that the market value of the property in dispute, as alleged by the plaintiff, was Rs 40,000, directed the plaintiff to pay court-fee on this amount. Under the circumstances, it may be observed that in case the defendants, including the transferee- defendants, raise objections regarding the question of court-fee in their written statement, it is open to the said court to re-consider the question and decide the same according to law. It is emphasised by the learned Assistant Advocate General that since the property in dispute has been sold for a total consideration of Rs. 80,000 and this is the market value of the disputed property, the plaintiff is liable to pay court-fee on this amount. It is emphasised by the learned Assistant Advocate General that since the property in dispute has been sold for a total consideration of Rs. 80,000 and this is the market value of the disputed property, the plaintiff is liable to pay court-fee on this amount. 1 am hesitant to go into this question at this stage as I have already observed that it is open to the trial court to re-consider the question of payment of court-fee, if raised by the defendants, including the transferee-defendants. 13. At the present stage, however, I am not inclined to interfere with the order made by the trial court. As such, the plaintiff is directed to affix court-fees in accordance with the direction made by the trial court on the amended plaint on or before March 1, 1985. In case the direction is not complied with within the aforesaid period, the amended plaint is liable to be rejected. 14. The revision petition is accordingly disposed of, with no order as to costs. Order accordingly.