STATE OF GUJARAT v. RAMSINH LAXMANSINH — 1990 DIGILAW 75 (GUJ)

A. P. RAVANI, J. ( 1 ) RESPONDENT No. 14 - herein filed suit being Regular Civil Suit No. 120 of 1986 in the Court of Civil Judge (J. D.) Rajpipla inter alia praying that the plaintiff was owner and in possession of the land in question and defendants No. 1 to 13 be restrained from receiving amount of compensation or part thereof from the appropriate authority. It is averred in the plaint that the plaintiff had purchased the land of Survey No. 333 admeasuring 5 acres and 36 gunthas of village Shaherav by registered sale deed dated 11/04/1975 for consideration of Rs. 10 499 However in the revenue record the entry has not been mutated in favour of the plaintiff since there was some encumbrance on the land of some co-operative society. The land has been acquired by the Government for the purposes of Karjan Irrigation Scheme. The plaintiff has requested the Land Acquisition Officer not to make payment of the amount of compensation to the defendants. Since the plaintiff apprehended that the amount may be paid to the defendants the plaintiff has filed the suit with the prayer as stated hereinabove. The Inspector of Court Fees attached to the Court examined the plaint and found that the Court fees of Rs 30/-only paid on the memo of the plaint was not sufficient. ( 2 ) AS per the report submitted by the Inspector of Court Fees the plaintiff was required to make payment of Court fees on the amount of value of compensation of the land. On this basis the Inspecting Officer (Court Fees) Surat made report to the learned Joint Civil Judge Rajpipla. ( 3 ) THE learned Joint Civil Judge J. D. Rajpipla as per his order dated 31/08/1988 rejected the reference made by the Inspecting Officer (Court Fees) on the ground that the relief claimed was that of injunction and it was falling within the scope of clause (iii) (j) and therefore the Court fees of Rs. 30. 00 paid was proper. It is not under-stood how the learned Judge has written clause (iii) (j ). Probably it appears he refers to Clause 6 (iv) (j) of the Bombay Court Fees Act 1959 inasmuch as there is no provision in the Bombay Court Fees Act which can be referred to simply as clause (iii) (j ). 30. 00 paid was proper. It is not under-stood how the learned Judge has written clause (iii) (j ). Probably it appears he refers to Clause 6 (iv) (j) of the Bombay Court Fees Act 1959 inasmuch as there is no provision in the Bombay Court Fees Act which can be referred to simply as clause (iii) (j ). The learned Conceal for the petitioners submitted that the appropriate Article of Court Fees Act applicable would be Art. 7 of Schedule I. On the other hand the learned Counsel for the respondent-original plaintiff submits that the provisions of Art. 23 (f) of Schedule II or the provisions of Sec. 6 (iv) (j) of the Bombay Court Fees Act would be applicable. Article 23 (f) of Schedule II and the provisions of Sec. 6 (iv) (j) of the Bombay Court Fees Act 1959 read as follow : schedule-II :23 Plaint petitioner application (including memorandum of appeal) which is capable of being treated as a suit: (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx (e) xxx xxx xxx (f) in or to any Civil Court not otherwise provided for Thirty Rupees. and the subject matter of which is not capable of being estimated in money value. ( 4 ) THE amount of fees payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (I) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx (iv) (a) to (i) xxx (j) In suits where declaration is sought with or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act thirty Rupees. For the applicability of the aforesaid provisions two conditions are required to be fulfilled- (1) the subject matter in dispute should not be susceptible to monetary evaluation; and (2) the subject matter in dispute should not have been otherwise provided for in the Act. In the instant case both these conditions are not fulfilled. The subject matter of the dispute is capable of being evaluated in monetary terms and it is also otherwise specifically provided. The appropriate Article applicable to the case would be Art. 7 of Schedule-I. It reads as follows;schedule-I7. In the instant case both these conditions are not fulfilled. The subject matter of the dispute is capable of being evaluated in monetary terms and it is also otherwise specifically provided. The appropriate Article applicable to the case would be Art. 7 of Schedule-I. It reads as follows;schedule-I7. Any other plaint application or petition (including A fee on the amount memorandum of appeal) to obtain substantive of the monetary gain relief capable of being valued in terms of monetary or loss to be prevengain or prevention of monetary loss including ted according to the cases wherein application or petition is either scale prescribed under treated as a plaint or is described as the mode of Art. I obtaining the relief as aforesaid. 4 As laid down by this Court in the case of Cotseeds Corporation Rajkot v. Cotton Corporation of India Bombay and Ors. reported in [1988 (2)] 29 (2) GLR 1021 while deciding the question of Court fees the Court should look into the allegations in the plaint and should sec 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 the relief asked for. In the instant case the substance of the relief prayed for is to prevent monetary ford to the plaintiff. If the injunction as prayed for is granted the plaintiff will be in a position to prevent monetary loss in the shape of amount of compensation which otherwise would be paid to defendants Nos. 1 to us. What amount of compensation is to be paid is a matter which can be ascertained easily by making inquiry from the Land Acquisition Officer. Therefore by no stretch of reasoning it can be said that the subject matter of the suit is not capable of being evaluated in terms of money. In this view of the matter the trial Court was not justified in rejecting the reference submitted by the Inspecting Officer (Court Fees ). 5 The learned Counsel for the respondent-plaintiff relied upon the following decisions of this High Court: (1) Biharilal Nathuram v. Hiralal Biharilal reported in (1979) 20 GLR 514; (2) Sanatkumar v. State of Gujarat reported in (1967) 8 GLR 946. (3) Khimji Jiva and Ors. v. Narendrakumar Maganlal Shah and Ors. reported in (1972) 13 GLR 23. 5 The learned Counsel for the respondent-plaintiff relied upon the following decisions of this High Court: (1) Biharilal Nathuram v. Hiralal Biharilal reported in (1979) 20 GLR 514; (2) Sanatkumar v. State of Gujarat reported in (1967) 8 GLR 946. (3) Khimji Jiva and Ors. v. Narendrakumar Maganlal Shah and Ors. reported in (1972) 13 GLR 23. The first decision pertains to a case in which the plaintiff had filed suit for permanent injunction restraining the defendants from Interfering with his management of certain property and his possession thereof. In the facts of the case the Court held that the relief prayed for was not capable of being valued in teams of money and therefore held that the injunction prayed for was required to be valued under the provisions of Art. 23 (f) the Bombay Court Fees Act. The decision turns on the facts of the case and it does not lay down any principle that in all cases of declaration and injunction the Court fees payable would be Rs. 30. 00 only. The decision does not help the respondent-plaintiff. Similarly in the case of Sanatkumar (supra) the question was with regard a suit falling under Sec. 53 of the Transfer of Property Act and certain observations have been made by the Court in that connection. The decision has no application to the question Involved in this revision application. Similarly the judgment of this High Court in the case of Khimji Jiva (supra) also turns upon the facts of the case. In that case the suit was for preventing execution of a consent decree by which the plaintiff wanted to avoid the cloudy weather and clear his title. This declaration vas not capable of being valued in terms of money and therefore the Court held that the provisions of Sec. 6 (iv) (j) were applicable. All the aforesaid decisions are of no help to the respondent-plaintiff. The decision on the point is in the case of Yamuna Engineering v. Bank of Baroda reported in [1986 (2)] 27 (2) GLR 878. Therein the principal debtor had filed suit for injunction restraining the surety from paying the amount of guarantee to the creditor and also for restraining the creditor from recovering the amount from the surety This was a suit for injunction. Therein the principal debtor had filed suit for injunction restraining the surety from paying the amount of guarantee to the creditor and also for restraining the creditor from recovering the amount from the surety This was a suit for injunction. However the Court leaving regard to the nature of the pleadings and the relief prayed for came to the conclusion that the suit would fall under Art. 7 of Schedule I and not under Art. 23 of Schedule II. Similar is the position in this case also inasmuch as the suit squarely falls order Art. 7 of Schedule I of the Bombay Court Fees Act 1959 because the subject matter of the suit is capable of being valued In terms of monetary lose or gain. By the injunction prayed for the plaintiff desires to prevent the monetary loss which may be caused to him on account of the payment of amount of compensation to respondent Nos. 1 to be i. e. original defendants Nos. 1 to 13. 6 In the result the Revision Application is allowed. The order passed by the trial Court below the Court Fees Reference No. 12 of 1987 is quashed and set aside. The reference is ordered to be accepted and the plaintiff is directed to ascertain the amount of compensation payable to respondents Nos. 1 to 13 and make payment of Court foes on ad valorem basis. The amount of Court fees shall be paid on or before 31/08/1990 Rule made absolute accordingly. (KMV) Revision allowed. .