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1999 DIGILAW 62 (HP)

MANWAR DANIAL v. THE CHURCH OF SCOTLAND

1999-05-03

KAMLESH SHARMA

body1999
JUDGMENT MS. KAMLESH SHARMA, J.—The petitioner and proforma respondents No. 2 to 5 are defendants whereas respondent No. 1 is plaintiff in the suit filed by him. In the above petition, the petitioner has assailed the order dated 17.3.1998, passed by Senior Sub-Judge, Chamba whereby issue No. 2, "Whether the suit is properly valued for the purpose of Court fee and jurisdiction? OPP has been decided in favour of the plaintiff and against the defendants holding that he has properly valued the suit for the purpose of Court fee and jurisdiction at Rs. 48,000/- and required Court fee of Rs. 2734.40 paise has rightly been affixed by him. 2. The facts in brief are that the plaintiff Church of Scotland through Rev. Anand Chandu Lal Bishop of Diocese of Amritsar, Church of North India, has filed a suit for possession of paster house/manse comprised in Khasra Numbers 1440, 1441, 1441/1, 1442, 1443 and 1443/1 measuring 1028-1 square yards and Khasra No. 2050 measuring 112-4 square yards, situated in Chamba Town (hereinafter called the suit property). The plaintiff has also prayed for decree for declaration to the effect that entries in revenue record showing Danial Tajdeen, the father of the petitioner and proforma respondents No. 2, 3 and 5 and father-in-law of proforma respondent No. 4, in possession of the suit property are null and void and in-operative upon the rights of the plaintiff. Claiming itself to be the owner of the suit property, the plaintiff has alleged in paragraph 2 of the plaint that it is a perpetual minor just as an idol in a temple and this property cannot be acquired or usurped by any hostile design. It is further stated in paragraph 4 of the plaint that the suit property was given to late Danial Tajdeen free of charge for rendering services to the Church and as the priest/padri of the plaintiff-Church. In paragraph 9 it is stated that, "Value for the purpose of jurisdiction and Court fee for suit for possession is Rs. 48,000/- (Rupees Forty Eight Thousands) and value for declaration is Rs. 1,000/- (Rupees One Thousand only) and Court fee for possession is Rs. 2734.40/ - (Rupees Two Thousand Seven Hundred and Thirty Four and paise Forty only) and for declaration Rs. 19.50, total Court fee is Rs. 2753.90 paid." 3. 48,000/- (Rupees Forty Eight Thousands) and value for declaration is Rs. 1,000/- (Rupees One Thousand only) and Court fee for possession is Rs. 2734.40/ - (Rupees Two Thousand Seven Hundred and Thirty Four and paise Forty only) and for declaration Rs. 19.50, total Court fee is Rs. 2753.90 paid." 3. In their written statement, the defendants have taken one of the preliminary objections that since the valuation of the suit property is about five lacs, the trial Court does not have jurisdiction to entertain the suit. On merits it is admitted that plaintiff Church is the owner of the suit property. This Court need not refer to other pleadings which are not relevant for the decision of this revision petition. After framing issues, the trial Court has tried Issue No. 2 pertaining to Court fee and jurisdiction as preliminary issue and decided the same in favour of the plaintiff by the impugned order. 4. This Court has heard learned Counsel for the parties and gone through the record. Learned Counsel appearing for the plaintiff has relied upon the judgment of Supreme Court in Shamsher Singh v. Rajinder Prashad and others, AIR 1973 SC 2384, and Full Bench judgment of Punjab and Haryana High Court in M/s. Arjan Motors Malout Partnership Firm v. Girdhara Singh and others, AIR 1978 P & H 25, and has raised preliminary objection that the question of Court fee cannot be agitated by the defendant-petitioner in above revision petition but this Court finds this submission as superficial as in Shamsher Singhv. Rajinder Prashads case (supra) in paragraph 3, the learned Judges of Supreme Court pointed out that the observations made in Rathnavarmaraja v. Smt Vimla, AIR 1961 SC 1299, "That whether proper Court fee is paid on a plaint is primarily a question between the plaintiff and the State", must be understood in the background of the facts of that case. It is further explained that the ratio of the said decision was that, "no revision on a question of Court fee lay where no question of jurisdiction was involved? It is further explained that the ratio of the said decision was that, "no revision on a question of Court fee lay where no question of jurisdiction was involved? According to the learned Judges, the decision in Rathnavarmaraja v. Smt Vimla (supra) has been correctly interpreted by the Kerala High Court in Vasu v. Chakki Mani, AIR 1962 Kerala 84, where it was pointed out that no revision will lie against the decision on the question of adequacy of Court fee at the instance of defendant....... unless the question of Court fee involves also the question of jurisdiction of the Court. Applying this law, laid down by Supreme Court, to the present case the revision petition is maintainable as the preliminary objection raised by the defendant is not only on adequacy of Court fee but also of pecuniary jurisdiction of the trial Court. The observations made in paragraph 4 of the judgment in Shamsher Singh v. Rajinder Prashads case (supra) also throws light how to determine the question of Court fee, it is held :— “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 plaintiffs 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 iii the way of the Court looking at the substance of the relief asked for.” 5. The next submission made on behalf of the learned Counsel for the petitioner-defendant is that in the absence of averments in the plaint that the suit property vests in God and does not have market value it cannot be presumed that Court fee will be payable for the relief of possession of the suit property under Article 13, Clause (vi), Schedule II of Himachal Pradesh Court Fees Act, 1968 and not under Section 7 (v)(e) of the said Act. It is further argued by learned Counsel that plaintiff has itself valued suit property in question at Rs. It is further argued by learned Counsel that plaintiff has itself valued suit property in question at Rs. 48,000/-, as such, it does not lie in its mouth to say that the suit property has no market value. In support of his submission he has relied upon the judgments in Re. Syed Mohammad Gouse and others, 1925 Madras 804; Parsottamanand Oiriv. Mayanand Oiri, AIR 1932 Allahabad 593 and N. Muthuswami Pillai and others v. N.S. Manickavasagam Pillai and others, AIR 1937 Madras 591. In none of these cases the point in issue was that since the property in dispute is vested in God it does not have the market value, as such, these judgments are not relevant to the present case. On the facts of each of these cases, the learned Judges have come to the conclusion that where the suit is in substance for the recovery of possession it will be governed for the purpose of Court fee under Section 7, Clause (v) of the Court Fees Act irrespective of the fact that the plaintiff does not have any beneficial interest in the properties. In Parsottamanand Oiri v. Mayanand Giris case (supra) it is clearly observed that temple does not have a market value and it cannot be assessed under Section 7 (v) of the Court Fees Act. 6. On the other hand, learned Counsel for the plaintiff, referring to paragraphs 1, 2 and 4 of the plaint, has urged that it is clearly stated in the plaint that the suit property belongs to Church of Scotland which is minor as an idol in a temple and it is meant for the residence of the paster who renders services to the Church. In respect of the averments made in paragraph 9, learned Counsel has submitted that the valuation of the suit property at Rs. 48,000/-, as given therein, is not stated to be the market value of the suit property. According to the learned Counsel, this valuation was just made for the purpose of Court fee and jurisdiction, as required under Suit Valuation Act. 48,000/-, as given therein, is not stated to be the market value of the suit property. According to the learned Counsel, this valuation was just made for the purpose of Court fee and jurisdiction, as required under Suit Valuation Act. In support of his submission, he has relied upon Mandir Mausuma and others v. The Taxing Officer and others, 1971 PLR 793, wherein in paragraph 5 it is held by the learned Judge that the value of property given in the plaint for the purposes of Court fee and jurisdiction does not mean the market value of the suit property if it is not stated to be so. It is further held in this judgment that the property has to be seen on the date of suit for the purpose of Court fee because it is that property which becomes the subject matter of the suit and if the property is temple or waqf property it is "extra commercium’ and its ownership vests in God. For coming to this conclusion the learned Judge has relied upon number of earlier judgments, as stated in paragraphs, out of which this Court would like to refer to U. Pyinnya and another v. U. Dipa, AIR 1929 Rangoon 134 (FB), in which the learned Judges of Full Bench have held that if the property is dedicated in perpetuity to religion it does not have market value and the suit for possession of such property is to be governed under Clause (vi) of Article 17 of Schedule II of the Court Fees Act which is equivalent to Clause (vi) of Article 13 of IInd Schedule of Himachal Pradesh Court Fees Act. Applying the ratio of above referred to judgments to the case in hand, this Court does not find any infirmity in the impugned order. Considering the allegations made in the plaint and the substantive relief asked for as per the observations of the Supreme Court in Shamsher Singh v. Rajinder Prashad (supra) it can be said that the suit property is dedicated to God and it does not have market value and it is governed under sub-clause (vi) of Article 13 of II Schedule of Himachal Pradesh Court Fees Act for the purpose of Court fee. The valuation given by the plaintiff in paragraph 9 is not stated to be market value of the suit property and it is given just to give some valuation for the purpose of Court fee and jurisdiction. However, if after the trial of the suit the Court comes to the conclusion that on the basis of evidence on record the suit property is not dedicated to God and is not part and parcel and inseparable from the plaintiff-Church, it may proceed to determine its market value and direct the plaintiff to affix advalorem Court fee under Section 7 (v)(e) of Himachal Pradesh Court Fee Act. 7. In the result, there is no merit in this revision petition and it is rejected. CMP No. 104/98: In view of the order passed in the main matter, the application is also disposed of and interim order dated 2.4.1998 is vacated.