KURIAKOSE v. JOSEPH — 1988 DIGILAW 268 (KER)

Judgment :- 1. Defendants 2 and 3, who are hereinafter referred to as the defendants, are the revision petitioners. The suit is filed by the 1st respondent herein, who is hereinafter referred to as the plaintiff. The 2nd respondent is the 1st defendant. In this C. R. P. he is only a formal party. The reliefs prayed for in the plaint are as follows: (a) Declaring that the plaintiff is the owner of the Lottery Ticket No. AP 541855 (Kerala Bhagya, Mala) and that it belongs to him absolutely, (b) Consequently restraining the 1st defendant, his agents or men by a permanent prohibitory injunction from disbursing the first prize in Kerala Bhagya Mala Lottery drawn on 12-2-1987 at Kasaragod in respect of Lottery Ticket No. AP 541855 to the 2nd and 3rd defendants or restraining the said defendants from collecting the said amount in any manner whatsoever. Relief (c) is in respect of costs and (d) in respect of incidental reliefs. 2. Lottery Ticket No.AP 541855 (hereinafter referred to as the Lottery Ticket) won the first prize of Rs. 7,00,000/- in the draw held on 12-2-1987. Defendants claimed the prize producing the Lottery Ticket. It was under those circumstances the plaintiff filed this suit before the Munsiff's Court, Ernakulam. In the plaint it is alleged that the plaintiff filed a complaint before the police and the concerned authorities and they informed him that he may pursue the matter before a court of law. Accordingly this suit was filed. 3. The plaintiff filed LA. No. 1143 of 1987 in this suit for temporary injunction for restraining the defendants from collecting the prize, pending disposal of this suit. 4. In the counter affidavit the defendants, apart from controverting the material averments in the plaint and petition for injunction, raised the contention that the suit was not maintainable in the Munsiff's Court, since the valuation of the suit as made in the plaint namely under S.25 (d) (ii) of the Court Fees Act was wrong. According to the counter affidavit the relief claimed was beyond the pecuniary jurisdiction of the Munsiff's Court and as such the suit was not maintainable. The Munsiff's Court rejected this contention and issued an interim order of injunction against the defendants. In appeal this order was confirmed. According to the counter affidavit the relief claimed was beyond the pecuniary jurisdiction of the Munsiff's Court and as such the suit was not maintainable. The Munsiff's Court rejected this contention and issued an interim order of injunction against the defendants. In appeal this order was confirmed. The defendants are challenging those orders in this C.R.P. Notice was issued to the Government Pleader and his arguments were also heard. 5. Although learned counsel for the petitioner urged arguments in support of his contentions regarding jurisdiction as well as the correctness of the injunction granted, I am of the view that in this C.R.P. under S.115 C.P.C. the correctness of the injunction order passed concurrently by both the lower courts cannot be examined. Therefore I am only considering the contention that the court fee paid is not proper and that the Munsiff's Court has no jurisdiction to try this suit. 6. S.25 of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960) is as follows: "25. Suits for declaration.- In a suit for a declaratory decree or order, whether with. or without consequential relief, not falling under S.26 (a) Omitted (b) Omitted (c) Omitted (d) In other cases (i) where the subject-matter of the suit is capable of valuation, fee shall be computed on the market value of the property, and (ii) where the subject matter of the suit is not capable of valuation, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees three hundred, whichever is higher." The Court fee paid in this plaint is as follows: " Table:#1 " (Court fee paid under S.25 (d) (ii) of the Kerala Court Fees and Suits Valuation Act, 1960) S. 53 of Act 10 of 1960 is as follows: "53. Suits not otherwise provided for.- (1) In a suit as to whose value for the purpose of determining the jurisdiction of courts, specific provision is not otherwise made in this Act or in any other law, value for that purpose and value for the purpose of computing the f payable under this Act shall be the same. Suits not otherwise provided for.- (1) In a suit as to whose value for the purpose of determining the jurisdiction of courts, specific provision is not otherwise made in this Act or in any other law, value for that purpose and value for the purpose of computing the f payable under this Act shall be the same. (2) In a suit where fee is payable under this Act at a fixed rate, the value for the purpose of determining the jurisdiction of courts shall be the market value or where it is not possible to estimate it at a money value such amount as the plaintiff shall state in the plaint. S.11 of the Kerala Civil Courts Act, 1957, is as follows: 11. Jurisdiction of District Court and Subordinate Judge's Court in original suits-(1) The jurisdiction of a District Court or a Subordinate Judge's Court extends, subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) to all original suits an proceedings of a civil nature. (2) The jurisdiction of a Munsiff's Court extends to all like suits and proceedings not otherwise exempted from its cognisance of which the amount or value of the subject-matter does not exceed fifteen thousand rupees." 7. Thus under S.25 of the Court Fees Act the question to be resolved whether the subject matter of this suit is capable of valuation and if so, whether court fee paid is sufficient. Under S.11 of the Civil Courts Act the question to be resolved is whether the 'amount or value of the subject matte does not exceed Rs. 15,000/-'. The lower courts placed reliance on the judgment of this Court reported in Chenthamarakshan v. Velayudhan Nair & On (1979-85 Kerala Unreported Cases 301-1980 KLN 483). In that case the prayer was for declaration that a lottery ticket belonged to the plaintiff therein and also for consequential injunction. Although the prize amount for that ticket was Rs. 3,00,000/- this Court held that the Munsiff's Court had jurisdiction to try the suit. The trial court decreed the suit, since according to that court, there was no denial by the first defendant specifically of the allegation in the plaint that the plaintiff had purchased the ticket. The 1st defendant had no case that he had purchased the ticket. 3,00,000/- this Court held that the Munsiff's Court had jurisdiction to try the suit. The trial court decreed the suit, since according to that court, there was no denial by the first defendant specifically of the allegation in the plaint that the plaintiff had purchased the ticket. The 1st defendant had no case that he had purchased the ticket. In the first appeal the Subordinate Judge held that the plaintiff had the burden to prove that he was the owner of the prize winning ticket and since he did not prove the same, the suit was liable to be dismissed. The Subordinate judge also held that the suit was bad for non-inclusion of the prayer for recovery of possession of the money. According to that court the plaintiff ought to have incorporated the prayer for recovery of possession of the prize winning ticket as a consequential relief. The main question that was considered by this Court was whether the lower appellate court was correct in holding that the suit was hit by the proviso to S.34 of the Specific Relief Act. This Court held that since the money was in custodia legis it was not necessary for the plaintiff therein to seek recovery of possession of the ticket or the money and that the declaration and injunction sought for were proper reliefs. On that basis it was held that the valuation given also cannot be questioned and that the suit has been properly filed in the Munsiff's Court. 8. I do not think that this decision applies to the facts of this case. In the present case the money was with the 1st defendant at the time of the filing of the suit. Only as per the directions of the trial court the 1st defendant subsequently deposited it in a bank. In this case the contention of the defendants, who produced the lottery ticket in order to claim the prize amount, was that the ticket was purchased by them. In Chenthamarakshan v. Velayudhan Nair (Supra) this Court did not consider whether the subject matter of the suit was capable of valuation or not and whether court fee was payable under S.25 (d) (i) or 25 (d) (ii). Therefore the questions raised in this revision petition cannot be resolved on the basis of the above said decision. 9. The lottery ticket was worth Rs. 5/- before the draw on 12-2-1987. Therefore the questions raised in this revision petition cannot be resolved on the basis of the above said decision. 9. The lottery ticket was worth Rs. 5/- before the draw on 12-2-1987. But according to the learned counsel for petitioner and learned Government Pleader, the ticket is capable of valuation and its value is the prize amount of Rs. 7 lakhs, after the date of the draw. But according to learned counsel for the plaintiff, the Subject matter of the suit is not the property involved, but. only the relief claimed, namely the declaration prayed for and that is not capable of valuation. 10. A revision by the defendant on a question of court fee is normally not maintainable. However, if a jurisdiction question is involved, the defendant has the right to file a revision-see Lakshmanan Nadar v. Krishnan Nadar (1960 KLT 1297), Ratnavarmaraja v. Vimala (1961 KLT (SC) 65), Vasu v. Chakki Mani (1961 KLT 825) and Shamsher Singh v. Rajinder Prashad (AIR 1973 SC 2384). The question whether a mere declaration can be prayed for where the plaintiff being able to seek further relief omits to do so, is governed by the proviso to S.34 of the Specific Relief Act, 1963. Under that provision in such a contingency no court shall make any such declaration. Learned counsel for the plaintiff relied on the rulings reported in Humayun Begam v. Md. Khan (AIR 1943 PC 94), Madhavan Chamar v. Kochukunju Panicker (1951 KLT 758) and Jai Krishna v. Babu Ram (AIR 1967 Punjab 263) and contended that a suit for mere declaration can be filed. Learned counsel for the defendants relied on H. R. Patel v. Venkatalakshamma (AIR 1955 Mysore 65-FB) and also contended that the proviso to S.34 of Specific Relief Act applies to the facts of this case and therefore the suit as framed is not maintainable. A decision on this contention will also depend on the question as to what is the subject matter of the suit and whether it is capable of valuation. 11. It is well settled that in deciding whether a suit is purely declaratory, the substance and not merely the language or the from of the relief claimed will be considered. A decision on this contention will also depend on the question as to what is the subject matter of the suit and whether it is capable of valuation. 11. It is well settled that in deciding whether a suit is purely declaratory, the substance and not merely the language or the from of the relief claimed will be considered. In Shamsheer Singh v. Rajinder Prashad (AIR 1973 SC 2384 -1974 (1) SCR 322) the Supreme Court held as follows: "As regards the main question that arises for decision it appears to us that while the court fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff's suit will have to fail for failure to ask for consequential relief is of no concern to the court at that stage, the court in deciding the question of court fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of relief asked for Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree bolder from executing the decree against the mortgaged property as he was entitled to do". 12. In Vishnu Pratap Sugar Works (P) Ltd. v. The Chief Inspector of Stamps, U. P. (AIR 1968 SC 102) the Supreme Court held that: "The plaint proceeds on the footing that the said Acts were void and that therefore the State of U. P. or its authorities had no power to realise the said tax and the said cess. It may be that while deciding whether to grant the injunction or not, the court might have to consider the question as to the validity or otherwise of the said Acts. But that must happen in almost every case where an injunction is prayed for. It may be that while deciding whether to grant the injunction or not, the court might have to consider the question as to the validity or otherwise of the said Acts. But that must happen in almost every case where an injunction is prayed for. If for the mere reason that the court might have to go into such a question, a prayer for injunction were to be treated as one for a declaratory decree of which the consequential relief is injunction all suits where injunction is prayed for would have to be treated as falling under Cl. (a) of sub-s. (iv) of S.7 and in this view Cl. (b) of sub-s. (iv-B) of S.7 would be superfluous. The contention urged by Mr. Bishan Narain, therefore cannot be accepted". In that case the argument which was negatived was that even if the Acts were not instruments, the plaint if read in substance rather than in form was for a declaratory decree with injunction as the consequential relief. The appeal before the Supreme Court arose from a suit filed against the State of U. P. and the Union of India inter alia praying for a permanent injunction restraining the State of U. P., its servants and agents from realising or from proceeding to realise sugar cane cess and purchase tax amounting to Rs. 33 lakhs and odd charged under the U. P. Sugar Cane (Regulation of Supply and Purchase) Act, 1953 and some other enactments. In the suit the appellant company alleged that the Acts were invalid and void and therefore the State was not entitled to levy, collect or recover the said cess or tax. The appellant paid court fee on the plaint under sub-s. (iv-B) (b) of S.7 of the Court Fees Act 1870 as amended in U. P. on the footing that the relief sought in the suit was an injunction. In so far as the plaintiff in the present suit has specifically applied for a declaration the reasoning in this judgment may not be applicable in this case. 13. Certainly as held in Sathappa Chettiar v. Ramanathan Chettiar (AIR 1958 S.C. 245) in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness and that is the basis for S.7 of Court Fees Act 1870. 13. Certainly as held in Sathappa Chettiar v. Ramanathan Chettiar (AIR 1958 S.C. 245) in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness and that is the basis for S.7 of Court Fees Act 1870. The Supreme Court made the following observation in the above said judgment: "It really means that in suits falling under S.7 (iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief". 14. In State of Uttar Pradesh v. Ramakrishan Burman (1970 (1) S CC 80) the Supreme Court held as follows: "6. A decree for declaration of title to money or other property is not a decree for money or other property. In our judgment the expression "decree for money or other property" means only a decree for recovery of money or other property. It does not include a decree concerning title to money or other property". In that case the main reliefs claimed in the plaint were as follows: "(a) that a declaratory decree in favour of the plaintiff and against the defendants declaring the plaintiff as the owner of the properties in Lists A, B, J & D be passed; (b) in case in the opinion of the Court prayer (a) cannot be granted, then, alternatively, declaring the plaintiff as the owner of properties in B, J and D being the stridhana of Rani Dhan Devi Kaur be issued, decree in Suit No. 4 of 1950 has no adverse effect on the rights of the plaintiff". Although the plaintiff valued the properties in dispute at above Rs. 5 lakhs court fee was paid on the footing that he had claimed a mere declaration. Although the plaintiff valued the properties in dispute at above Rs. 5 lakhs court fee was paid on the footing that he had claimed a mere declaration. The Supreme Court rejected the contention that the relief for declaration was a mere device or subterfuge intended to conceal the true purport of the claim and observed as follows: "It is evident that the District Magistrate, Jaunpur was in possession of the property in dispute and if the Civil Court declared the title of the plaintiff, he would be entitled to secure recognition of his rights". 15. In Sathianalias Sathyavrathan v. The Manager, Indian Overseas Bank (1988 (1) KLT 553:1988(1) K.L.J. 566) my learned brother, Bharkaran Nambiar, J. after considering the judgment reported in V. P. Sugar Works v. C. I. of Stamps, U. P. (AIR 1968 S.C.102) and other judgments, held as follows: "8. In the plaint now filed, the actual relief prayed for is only for an injunction. It is clear from the plaint averments that the petitioner assert, that he alone is entitled to the amount covered by the fixed deposit receipt in the bank, and does not seek any declaration of his right. He, therefore, proceeds on the footing that the bank has no power to pay the amount to any other person. It may be that while deciding to grant injunction or not, the court might have to consider the question as to whether the plaintiff is entitled to the amount. The suit in which the plaintiff does not pray for the money cannot be treated on exactly the same footing as a suit in which he does pray for such relief for purpose of court fee. 9. It is, therefore clear that the suit has to be valued only under S.27 (c) as a suit for injunction and not under S.25; as a suit for declaration or under S.22, as a suit for the recovery of money." 16. In Subba Rao v. B. Venkata Rao (AIR 1955 Mysore 118) it was held as follows: "The plaintiff has not applied for a direction to pay the money and the prayer if granted does not entitle him to enforce the realisation of the amount in execution of the decree which may be passed. The officer who has control over the fund and competent to pay it is not a party to the suit. The officer who has control over the fund and competent to pay it is not a party to the suit. The adjudication of the right to it in plaintiff's favour may suffice for the plaintiff getting the amount. The officer in charge of the money is not interested in the person to whom payment is to be made whether he is the plaintiff or any other and all that he wants is a judicial recognition of the claim. The person who disputes the claim is the defendant and since the money is not with him it does not seem to be necessary or reasonable to call upon the plaintiff to pay ad valorem Court-fee on the amount in deposit. The contingency may arise if the custodian declines to pay it and the plaintiff wants to enforce his claim for payment." 17. In Jai Krishna Das v. Babu Ram (AIR 1967 Punjab 263-F B) it was held that: ' - "In ultimate analysis, it depends on the construction of the relief claimed by the. plaintiffs to see whether the plaintiffs have in fact claimed a declaration simpliciter or also some consequential relief in addition to it. Each case must for this purpose depend on its facts, but the body of the plaint has to be seen in order only to construe the prayer and not in order to spell out of the prayer something which is not contained in it even by implication or to enlarge its scope so as to make the suit maintainable or so as to entitle the plaintiff to ultimately succeed in the suit on proving the facts alleged by him." 18. In Jitendra Nath v. Baduria Municipality (AIR 1967 Calcutta 423) it was held as follows: "The plaint reveals that the suit is in substance, a suit to obtain a declaratory decree where consequential relief has been prayed. And what is the consequential relief the plaintiff Municipality prays the court for? A permanent injunction restraining the defendant Jitendra from interfering with the Municipality's possession of the hat in controversy. So soon as that is said the suit falls under S.7 (iv) (c) of the Court-fees Act 7 of 1870. And the amount of fees shall be computed according to the amount which at the relief sought is valued in the plaint. Here the relief has been valued in the plaint at Rs. 100/." 19. So soon as that is said the suit falls under S.7 (iv) (c) of the Court-fees Act 7 of 1870. And the amount of fees shall be computed according to the amount which at the relief sought is valued in the plaint. Here the relief has been valued in the plaint at Rs. 100/." 19. On a consideration of the authorities, it would appear that the averments and the relief in the plaint are to be examined in order to see what is the substantive relief prayed for. As held in Shamsheer Singh v. Rajinder Prashad (AIR 1973 S. C. 2384) mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for. If as in Vishnu Pratap Singh's case (AIR 1968 SC 102) there is no specific prayer for declaration or as in State of Uttar Pradesh v. Ramakrishan Burman (1970 (1) SCC 80) where the property in dispute is in custodia legis at the time of the suit, the plaintiff is entitled to give any value for the relief prayed for. Each case must for this purpose depend on its facts, but the body of the plaint has to be seen in order to construe the prayer. Unlike in Sathian v. The Manager, Indian Overseas Bank (1988 (1) KLT 553:1988 (1) KLJ 566) the plaintiff in the present suit has prayed for a declaration that he is the owner of the lottery ticket. From the averments in the plaint it is clear that this lottery ticket won the first prize of Rs. 7,00,000/-. The custodian of the money namely the President of a co-operative society, is made a defendant in the suit evidently in order that the decree may bind him. At the time of filing of the suit it was not certain whether he will raise any contentions against the plaintiff or refuse to pay to plaintiff. The prize amount was not in custodia legis. Under S.25 (d) of the Kerala Court Fees Act the subject matter of the suit is the lottery ticket which won the first prize even though in the prayer portion of the plaint it is merely mentioned as the lottery ticket. The prize amount was not in custodia legis. Under S.25 (d) of the Kerala Court Fees Act the subject matter of the suit is the lottery ticket which won the first prize even though in the prayer portion of the plaint it is merely mentioned as the lottery ticket. When the plaint is read as a whole it is clear that the declaration prayed for is in respect of the lottery ticket which won the first prize. 20. Under S.11 of the Kerala Civil Courts Act, the jurisdiction of a Munsiff's Court extends to suits having the value of the subject matter less than Rs. 15,000/-. Reading S.25 (d) of the Court Fees Act and S.11 of the Kerala Civil Courts Act and considering the averments in the plaint, I am of the view that the subject matter of this suit is capable of valuation and that. the value exceeds Rs. 15,000/-. Consequently the Munsiff's Court has no jurisdiction to try this suit. Accordingly I direct the trial court to return the plaint to the plaintiff for presentation in the proper court. Time for re-presentation, 10 days from the date of return. There will be an order of interim injunction restraining the 1st defendant in the suit from disbursing the prize for the lottery ticket to defendants 2 and 3, and restraining defendants 2 and 3 from collecting the first prize for a period of one month from this date. The order under challenge is set aside and the C. R.P. allowed as above. No costs.