Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 1008 (CAL)

Miss Ila Choudhury v. Maya Bose

2008-11-19

BISWANATH SOMADDER

body2008
Judgement ORDER :- Heard the learned advocates appearing on behalf of the parties. 2. This is an application under Article 227 of the Constitution of India in respect of an order dated 13th February, 2006, passed by the learned Civil Judge (Senior Division), 10th Court at Alipore, South 24 in Title Suit No. 45 of 1997. 3. The petitioner in the instant application is the defendant No. 1 in the suit pending before the learned Court below. 4. The impugned order has been passed by the learned Court below in an application filed by the defendant No. 1 on 2nd January, 1998, under Section 11 of the West Bengal Court-Fees Act, 1970, for an enquiry as to valuation of the subject-matter of the suit. 5. It appears that the learned Court below after dwelling at length with the respective contention of the parties went on to reject the defendant No. 1's petition by observing, inter alia as follows :- "............Upon considering the materials on record and also considering the facts and circumstances of the case, I am of the considered view that the decisions of the Hon'ble Court as reported are referred to as above can be made applicable in favour of the plaintiff of the suit specifically when evidence is required prior to deal with the matters. It may be placed on record that the Ld. advocate appearing on behalf of the defendant No. 1, contended that in suit to depose a right to pre-emption the suit is required to be valued according to the market value of the land, building or garden in respect of which right is claimed. To substantiate the said contention he has also referred to a decisions reported in AIR (36) 1949 Calcutta 659, 1943 (47) CWB 373 and AIR (36) 1949 Allahabad 107. But so far as the factual matrix of the present case and the facts and circumstances of the present case is concerned the decisions of the Hon'ble Court as arose cited on behalf of the defendant No. 1 is to be distinguishable (sic)the instant matter is to be considered at the time of final hearing of the suit by framing an issue in this regard. Therefore, the petition as filed on behalf of the defendant No. 1 on 02 January, 1998 is liable to be rejected. Therefore, the petition as filed on behalf of the defendant No. 1 on 02 January, 1998 is liable to be rejected. Hence, O R D E R E D that the petition dated 2-1-1998 filed by the defendant No. 1 is rejected on contest....." 6. The learned Advocate appearing on behalf of the petitioner submits that Section 11 of the West Bengal Court-Fees Act, 1970, is a special statute and the Court is required under the provisions of the said Act to cause an enquiry for valuation of a suit, if it is of the opinion that the subject-matter of any suit has been wrongly valued. Inviting this Court's attention to the provision of Section 11 of the West Bengal Court-Fees Act, 1970, he submits that in the facts and circumstances of the instant case, the learned Court below did not come to any decision, although it was incumbent upon the learned Court below to do so, either for or against, while finally determining the petition filed by the defendant No. 1 in the Court below under Section 11 of the West Bengal Court-Fees Act, 1970. In this regard, learned advocate for the petitioner invites this Court's attention to the relevant portion of the order, which has been quoted above and submits that the learned Court below never reached any conclusion as to whether the valuation of the suit was correctly made by the plaintiff or not. He submits that, moreover, although the learned Court below rejected the defendant No. 1's petition, yet it kept the matter to be considered at the final hearing of the suit by framing of an issue in that regard. He also submits that the order by itself is contradictory in nature. He relies on a judgment of this Court in the case of Taramoni Chakraborty v. Md. Ali Haider, reported in 80 CWN 1082 : (AIR 1977 (NOC) 202) and submits that the valuation of a property given by the plaintiff in a plaint is not final and the Court has power to hold an inquiry under Section 11 of the West Bengal Court-Fees Act, 1970, for determining whether the suit has been correctly valued or not. Ali Haider, reported in 80 CWN 1082 : (AIR 1977 (NOC) 202) and submits that the valuation of a property given by the plaintiff in a plaint is not final and the Court has power to hold an inquiry under Section 11 of the West Bengal Court-Fees Act, 1970, for determining whether the suit has been correctly valued or not. He also relies on a judgment of the Patna High Court in the case of Banku Behari Panday v. Chatur Pandey, reported in AIR 1924 Patna 640 and submits that the learned Court below could not have kept the issue with regard to valuation of the suit undecided to be determined afterwards at the time of final hearing of the suit. The learned advocate for the petitioner also relies on a judgment of the Hon'ble Supreme Court in the case of District Registrar and Collector, Hyderabad v. Canara Bank, reported in (2005) 1 SCC 496 : ( AIR 2005 SC 186 ) and submits that a discretionary power may not necessarily be a discriminatory power. He also submits that the question as regards valuation goes into the very root of the jurisdiction of a Court and, therefore, the learned Court below was duty-bound in law to come to a finding, one way or the other, with regard to the corrections of the valuation given by the plaintiff in the suit. He submits that there has been no affirmative finding by the learned Court below to the effect that the valuation of the suit was not required to be interfered with, at the time of rejection of the defendant No. 1's petition. He finally submits that this Court, in exercise of its jurisdiction under Article 227 of the Constitution, ought to interfere with the order impugned, since there was a serious error of law committed by the learned Court below, as a consequence whereof, the learned Court below failed to exercise jurisdiction vested upon it by law. 7. He finally submits that this Court, in exercise of its jurisdiction under Article 227 of the Constitution, ought to interfere with the order impugned, since there was a serious error of law committed by the learned Court below, as a consequence whereof, the learned Court below failed to exercise jurisdiction vested upon it by law. 7. On the other hand, the learned advocate appearing on behalf of the opposite parties, being the plaintiffs in the Court below, while placing the entire impugned judgment and order of the learned Court below, submits that the learned Court below has passed an order which is within its discretion and jurisdiction and this Court ought not to interfere with the same in exercise of its jurisdiction under Article 227 of the Constitution of India. In this regard, he relies on several decisions of the Hon'ble Supreme Court with regard to the limits of the High Courts jurisdiction under Article 227 of the Constitution of India, which are as follows :- i) Bhutnath Chatterjee v. State of West Bengal, reported in 1969 (3) SCC 675 . ii) Babhutmal Raichand Oswal v. Laxmibai R. Tarte, reported in AIR 1975 SC 1297 . iii) Trimbak Gangadhar Telang v. Ramchandra Ganesh Bhide, reported in AIR 1977 SC 1222 . iv) Sukhbir Narain (dead) by L.Rs. v. Deputy Director of Consolidation, reported in AIR 1987 SC 1645 . 8. He also relies on another judgment of the Hon'ble Supreme Court in the case of Bank of India v. T. Jogram, reported in (2007) 7 SCC 236 : ( AIR 2007 SC 2793 ) and submits that the Court's jurisdiction under Article 227 of the Constitution of India, cannot be exercised against the decision passed by the learned Court below, but only against the decision-making process. The learned advocate for the plaintiffs/opposite parties also relies upon the decision of the Hon'ble Supreme Court in the case of Sri Rathnavarmaraja v. Smt. Vimla, reported in AIR 1961 SC 1299 and submits that whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State and there is no scope of interference of this Court in respect of the order impugned. 9. 9. After considering the submissions made by the learned advocates appearing on behalf of the parties and upon perusing the instant application and the order impugned and taking into consideration the various judgments cited by the learned advocates, I am of the opinion that the only issue that falls for consideration in the present case is whether the learned Court below duly exercised or failed to exercise its jurisdiction under the provisions of the West Bengal Court-Fees Act, 1970. 10. In order to come to a definitive finding, it is necessary, at first, to closely examine the scope of the suit pending before the learned Court below. 11. It appears from record that one Smt. Maya Bose, being the plaintiff/opposite party No. 1 herein, instituted the suit, being Title Suit No. 45 of 1997 seeking preemption under the provision of Section 22 of the Hindu Succession Act, 1956. She, by herself, valued the suit at Rs. 50,000/-. The principlal reliefs prayed for in the suit, appear from prayers (a), (b) and (c) of the plaint, which, for convenience, are set out hereinbelow :- "(a) Decree of pre-emption of the 1/3rd undivided share or interest of the defendant Nos. 1 and 2 in respect of the suit property; (b) An enquiry be made to ascertain the price of undivided 1/3rd share of the suit property; (c) A time be fixed by the learned Court to deposit the sum so ascertained by the learned Court; And necessary order be passed vesting the said share so sold by the defendant No. 2 or in the alternative the defendant Nos. 1 and 2 be directed to execute and register necessary deed and documents in favour of the plaintiff at her cost, failing which necessary deed be executed and registered by this learned Court." 12. On a plain reading of the above, it will appear from prayer (b) that the plaintiff prayed for an enquiry to be made to ascertain the price of the undivided 1/3rd share of the suit property. Thus, at the time of institution of the suit, even on the face of it, the pleadings did not disclose any valuation of the suit, since, without an enquiry being made so as to ascertain the price of the undivided 1/3rd share of the suit property, it was not possible for the plaintiff to provide an ad hoc valuation of the suit at Rs. 50,000/-. 12-A. It further appears from record that within a few months from the date of institution of the suit in the year 1997, precisely on 2nd January, 1998, the defendant No. 1 filed an application under Section 11 of the West Bengal Court-Fees Act, 1970 for enquiry with regard to valuation of the subject-matter of the suit. What appears from a bare reading of the impugned order is that the learned Court below did not adjudicate on the aspect as to whether an enquiry was required under Section 11 of the West Bengal Court-Fees Act, 1970 or not. Neither did the learned Court below come to a conclusive finding with regard to correctness of the valuation of Rs. 50,000/-, as declared by the plaintiff at the time of institution of the suit. Instead, as it appears from the impugned order, the learned Court below formed an opinion that the matter was required to be considered at the time of final hearing of the suit by framing an issue in that regard. I am afraid, the learned Court below forgot to take into consideration that the provisions of West Bengal Court-Fees Act, 1970, being a special statute, brought into force by the State legislature for the purpose of amending and consolidating the law relating to levy of court-fees within the State of West Bengal, entrusts a statutory obligation upon a Court to ascertain whether a valuation given by a plaintiff in a suit is correct or not. It is indeed true that whether proper court-fees have been paid or not on a plaint is primarily a question between the plaintiff and the State, as has been held by the Hon'ble Supreme Court in the case of Sri Rathnavarmaraja v. Smt. Vimla, reported in AIR 1961 SC 1299 . However, in the fact of the present case, the learned trial Court never came to a conclusive finding that the court-fee paid by the plaintiff was adequate. The learned Court below, in the order impugned, merely directed the matter to be considered at the time of final hearing of the suit by framing an issue in that regard. In this context, it may not be out of place to refer to a judgment of this Court which has been cited by the learned advocate appearing on behalf of the petitioner in the case of Taramoni Chakraborty v. Md. In this context, it may not be out of place to refer to a judgment of this Court which has been cited by the learned advocate appearing on behalf of the petitioner in the case of Taramoni Chakraborty v. Md. Ali Haider, reported in 80 CWN 1082 : (AIR 1977 (NOC) 202). From the observations of Chittatosh Mookerjee, J., delivering the judgment in the aforementioned case, it appears that the Court certainly cannot decline to hold an inquiry and examine the correctness or otherwise of the valuation given in the plaint and overrule the defendant's objection in limine. While setting aside the order complained of passed by the learned Munsif, His Lordship further held that the learned Munsif failed to exercise the jurisdiction vested in him by refusing to hold any enquiry at all and to consider whether the suit in question had been correctly valued or not. However, His Lordship kept the matter open for the learned Munsif to consider the same and to come to his own conclusion about the valuation. 13. In my opinion, based on the above observations of our High Court and taking into consideration the fact that the aspect of valuation goes to the very root of the jurisdiction of the Court, it was not open to the learned Court below to simply keep the matter undecided and in abeyance till final hearing of the suit. As observed hereinbefore, the provisions of West Bengal Court-Fees Act, 1970, which is a special statute, brought into force by the State legislature for the purpose of amending and consolidating the law relating to levy of court-fees within the State of West Bengal, enjoins an obligatory duty upon a Court to ascertain the correct valuation of a suit. For this very purpose, the legislature, in its wisdom, incorporated Section 11 in the statute-book, which allows the Court to cause an enquiry as to valuation of a suit, if the Court is of the opinion that the subject-matter of any suit has been wrongly valued. Valuation of a suit is a must, and the obligatory duty of a Court to ascertain the same cannot be kept suspended till the final hearing of a suit. Valuation of a suit is a must, and the obligatory duty of a Court to ascertain the same cannot be kept suspended till the final hearing of a suit. The West Bengal Court-Fees Act, 1970, being a special statute, is a complete Code in itself, which provides, inter alia, for mechanism in order to ensure levy, recovery as well as refund of court-fees by a Court. 14. The judgments, cited by the learned advocate appearing on behalf of the opposite parties, cannot render much assistance in the facts and circumstances of the instant case. This is not a case where the issue is one of discretion or jurisdiction of the learned Court below to pass an order under the provisions of the West Bengal Court-Fees Act, 1970. On the contrary, this is a case where jurisdiction although vested, was not at all exercised by the learned Court below, although it was obligatory on its part to do so, keeping in view the provisions of the West Bengal Court-Fees Act, 1970. The Court may be well within its discretion to form an opinion as to what the correct valuation of a suit can be. However, in the facts of the instant case, the learned Court below has failed to exercise both its discretion as well as his jurisdiction. The learned Court below neither came up with a positive assertion that the value given by the plaintiff in the suit for pre-emption under Section 22 of the Hindu Succession Act, 1956 was true and correct, nor did it cause an enquiry as contemplated under Section 11 of the West Bengal Court-Fees Act, 1970 upon its failure to come to a conclusion with regard to valuation of the said suit. I am of the opinion that there was no scope for the learned Court below to keep the issue pending till the time of final hearing of the suit. As observed hereinbefore, the question of valuation of a suit goes to the very root of the Court's jurisdiction to decide a suit and although it is primarily the Court's discretion to do so, and the same ought to be exercised as part of the Court's statutory obligation and not merely kept in abeyance till final hearing of the suit. 15. 15. For reason stated above, I am of the view that the impugned order passed by the learned Court below, being order dated 13th February, 2006, warrants an interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The impugned order is, therefore, liable to be set aside and the same is hereby set aside. 16. The learned Court below is directed to hear out the defendant's application under Section 11 of the West Bengal Court-Fees Act, 1970 afresh, after giving opportunity to the parties to exchange their affidavits and dispose of the same as expeditiously as possible, preferably within a period of three months, but not later than four months from the date of communication of this order, without granting unnecessary adjournments to the parties in view of the fact that the suit is more than ten years old. 17. The time-frame, indicated above, is peremptory in nature and it shall not be open to the Court below to extend the same for any reason whatsoever, even on consent. 18. Urgent xerox certified copy of this order, if applied for, be supplied to the parties on priority basis. Order accordingly.