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2008 DIGILAW 617 (CAL)

Bina Roy v. Basanti Bhattacharya

2008-06-25

BISWANATH SOMADDER

body2008
Judgment :- (1) HEARD the learned Advocates appearing on behalf of the parties. (2) THIS is an application under Article 227 of the Constitution of India primarily directed against judgment and order, being Order No. 43 dated 3rd December, 2007 passed by the learned Civil Judge (Senior Division), jalpaiguri in Title Suit No. 72 of 2004. (3) THE petitioner herein is the defendant in the suit pending in the court below. (4) BY the order impugned, the learned Court below was inter alia pleased to dismiss the defendant No. Ss application under Section 10 read with Sections 11 and 12 of the West Bengal Court Fees Act, 1970 praying for an inquiry under Section 11 of the West Bengal Court Fees Act, 1970 in order to determine the correct valuation of the suit on the allegation that the suit was under valued by the plaintiff. (5) AFTER considering the submissions made by the learned Advocates appearing on behalf of the parties, the learned Court below gave the following reasons while dismissing the defendants application:- "on perusal of the plaint it appears to me that the plaintiff. Filed this suit for a decree of recovery of khas and vacant possession of the suit-land after removing the defendant, their men and associates and the structures and boundary walls which are and may be found in, upon and around the suit land and he further prays for a decree for permanent and mandatory injunction and a preliminary decree for damages against the defendant for wrongful and unauthorized occupation of the suit-land. It is alleged in the plaint that the plaintiff is the absolute owner of the suit-land and she was possessing the said land as absolute owner without any obstruction, objection and interruption and such possession of the plaintiff was also hostile to the interest of all interested persons including the defendant and the said land was mutated in her name and the defendant No. 1 is a land-broker and land-graber and is associated with anti-social elements and the defendant No. 1 along with others started to create disturbance in the peaceful possession of the suit-land they with the anti-social elements tried to dispossess the plaintiff from the suit-land and ultimately the plaintiff was dispossessed from the suit-land on 7. 6. 2004 and the said suit of the plaintiff was decreed on 7. 6. 2004 and on and from 6. 8. 6. 2004 and the said suit of the plaintiff was decreed on 7. 6. 2004 and on and from 6. 8. 2004 the defendant have encroached upon the suit-land and have captured the same by erecting pucca boundary wall on the suit-land on all sides. It appears from Section 6 (1) of the Specific Relief Act that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up on such suit. It appears from Section 7 (vi) of the W. B. Court Fees Act that in a suit for recovery of possession of immovable property from:- (a) a trespasser, where no declaration of title to property is either prayed for or necessary for disposal of the suit according to the amount at which the relief sought is valued in the plaint subject to the provisions of Section 11. In the instant case the plaintiff filed the suit for recovery of possession of the suit property from a trespasser and in such a case the Court fees payable according to the amount at which the reliefs sought is valued in the plaint and in such a case it is open to the Court for enquiry under Section 11 of the Court Fees Act. In other words, it is to sum up that in a suit for recovery of immovable property from a trespasser the plaintiff is at liberty to put his own valuation on the plaint and to pay Court fee according to such valuation, but the Court is empowered to enquire as to such valuation of the suit under Section 11 of the W. B. Court Fees Act. I have gone through the decisions cited by the learned advocate of the plaintiff and except the case reported in AIR 1958 supreme Court 245, the other decisions are not acceptable to the facts and circumstances of the instant case. It is held by the Honble supreme Court in the said case that one the plaintiff exercises his option and values are claimed for the purpose of Court fees. That determines the value for jurisdiction. It is held by the Honble supreme Court in the said case that one the plaintiff exercises his option and values are claimed for the purpose of Court fees. That determines the value for jurisdiction. The value for Court fees and the value for jurisdiction must, no doubt, be the same in such cases; but it is the value for Court fee stated by the plaintiff i.e. of primary importance. Therefore, it is clear from the above decision that the valuation which put by the plaintiff on the face of his plaint is only for the purpose of computation of Court and it is the established principles of law that whenever the plaintiff values any suit at his own option he must give the proper valuation of the suit so that it conclusively determines the jurisdiction of the Court as well as the amount of the court fees laviable on him and he should not take recorse to any clever tacties by adopting any unfair means which may undervalue the suit-property. In the instant case, since the plaintiff sought for recovery of possession under Section 6 of the Specific Relief Act, i am inclined to hold that the plaintiff is at liberty to value the suit at his own option and the interference of the Court on this issue is not warranted. Hence, the instant petition filed by the defendant stands rejected accordingly. " (6) THE petitioners case in the instant application is that the plaintiffs valuation of the suit at Rs. 50,000/- for possession and Rs. 100/-for injunction was absolutely and ex facie baseless. The further case of defendant No. 3/petitioner is that the plaintiff had full knowledge that the market value of the suit land as on the date of institution of the suit was not less than Rs. 5 lakhs. (7) IT has been submitted on behalf of the petitioner that the learned court below, in the facts and circumstances of the instant case, ought to have caused an inquiry in terms of Section 11 of the West Bengal Court fees Act, 1970 in order to determine the correct valuation of the suit. 5 lakhs. (7) IT has been submitted on behalf of the petitioner that the learned court below, in the facts and circumstances of the instant case, ought to have caused an inquiry in terms of Section 11 of the West Bengal Court fees Act, 1970 in order to determine the correct valuation of the suit. (8) ON the other hand, learned Advocate appearing on behalf of the opposite party No. 1, being the plaintiff in the suit pending in the Court below, submits that whether proper fees are paid on a plaint is primarily a question between the plaintiff and the State. She further submits that the defendant who may believe and even honestly, that proper fees has not been paid by the plaintiff, still has no right to move the Court against any order adjudging payment of Court fees payable on the plaint. In this regard, she relies on the judgment of the Honble Supreme Court, in the case of sri Rathnavarmaraja v. Smt. Vimla, reported in AIR 1961 SC 1299 . She has also referred to a recent judgment of this Court, which essentially follows the ratio of the aforementioned decision of the Honble Supreme court. The judgment was delivered by this Court in the case of Paresh chandra Nath v. Naresh Chandra Nath and Ors., reported in 2006 (1) WBLR (Cal) 374. She refers to Paragraph-10 of the said judgment. The other decision cited by the learned Advocate appearing on behalf of the opposite parties is in the case of Lakshmimoni Das and Ors. v. State of West Bengal and Ors. , reported in AIR 1987 Calcutta 326. She submits that even in this judgment this Court had reiterated and followed the principles of law laid down by the Honble Supreme Court in the decision referred to (supra). Some other decisions referred to by the learned Advocate for the opposite parties are as follows:-(i) AIR 1958 SC 245 (para 13) (S. Rm. Ar. S. Sp. Sathappa chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar and (ii) 85 CWN 42 (paras 3 and 4) (Amal Kumar Ghosh and Ors. v. Bhagwan Shaw). Some other decisions referred to by the learned Advocate for the opposite parties are as follows:-(i) AIR 1958 SC 245 (para 13) (S. Rm. Ar. S. Sp. Sathappa chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar and (ii) 85 CWN 42 (paras 3 and 4) (Amal Kumar Ghosh and Ors. v. Bhagwan Shaw). (9) AFTER considering the submissions made by the learned Advocates appearing on behalf of the respective parties and upon perusing the instant application and the order impugned and upon taking into consideration various judgments cited by the learned Advocate appearing on behalf of the opposite party No. 1, I am of the opinion that in order to arrive at a conclusion as to whether the order impugned, suffers from such gross infirmity of reasoning or error of law which would warrant interference in exercise of its jurisdiction under Article 227 of the Constitution, the provision of Section 11 of the West bengal Court Fees Act, 1970 is required to be looked into:- "Section 11- Inquiry as to valuation of suits.-If the Court is of opinion that the subject-matter of any suit has been wrongly valued, it may revise the valuation and determine the correct valuation and may hold such inquiry as it thinks fit for such purpose. " (10) FROM a plain reading, it appears to me that this provision of law makes it clear that inquiry as to valuation of suits can be instituted only if the Court is of the opinion that the subject-matter of any suit has been wrongly valued and not otherwise. Section 11 of the West Bengal Court fees Act, 1970 empowers the Court to revise the valuation and determine the correct valuation after holding such inquiry as it thinks fit and proper for such purpose. (11) IN the instant case, I find that the learned Judge with elaborate reasoning and upon taking due note of the relevant provisions of West bengal Court Fees Act, 1970 and Section 6 (1) of the Specific Relief Act, was inclined to hold that the plaintiff was at liberty to value the suit at his own option and the interference of the Court on this issue was not warranted. (12) WITH regard to the judgments cited by the learned Advocate for the opposite parties, it appears to me upon perusing them that the consistent view of the Courts with regard to whether proper Court fees are paid on a plaint, is that the same is primarily a question between the plaintiff and the state. The defendant, who may believe and even honestly, that proper Court fees has not been paid by the plaintiff, still has no right to move the superior court of appeal or in revision against the order adjudging payment of Court fees payable on the plaint. In my view, there is no reason as to why I should digress and differ from the consistent view and the principles of law laid down for decades by our Courts. The order impugned speaks with clarity and there is no infirmity of reasoning whatsoever or any error of law, which would warrant interference of this Court in exercise of its jurisdiction under article 227 of the Constitution of India. (13) IN the circumstances, the instant application stands dismissed. (14) THERE shall be, however, no order as to costs. Urgent xerox certified copy of this order, if applied for, be given to the parties.