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2010 DIGILAW 748 (KAR)

Matilda D’Souza v. Tukaram N. Shetty

2010-06-23

ARAVIND KUMAR

body2010
Judgment :- Aravind Kumar, J: The order passed in O.S.No.13/2009 dated 15-2-2010 by the Principal Civil Judge (Jr.Dn), Mangalore, Dakshina Kannada, Annexure-‘A’ is impugned in this writ petition. 2. The facts in nutshell are as follows: 2.1. A suit in O.S.No.13/2009 was filed by the respondent herein against the defendant-petitioner for recovery of money in a sum of Rs.1,01,000/- with future interest. On service of notice defendant entered appearance and filed written statement under Order VIII, Rule 1 Civil Procedure Code. A counterclaim was set up by the defendant seeking following relief: “(a) For a declaration that the defendant is the ‘absolute owner’ of the residential premises bearing Door No.5-38/2 of Moodushedde Panchayat situated in the II Floor of the building ‘Kalyani’ located in Survey No.26/3BP2 of Padushedde village of Mangalore Taluk, within the Registration Sub-district of Mangalore Taluk.” The defendant valued the suit at Rs.1,000/- and a Court fee of Rs.25/- was paid as per Section 24(d) of Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as Court Fees Act for the sake of brevity). 2.2 In view of the valuation slip filed by the defendant on counter claim, Trail Court adjudicated the same and by its order dated 15-2-2010 held that defendant ought to value the suit under Section 24(b) of the Court Fees Act and held invoking of Section 24 (d) in the valuation slip filed by the defendant is not tenable. It is this order which is impugned in the present writ petition. 3. I have heard Sri Pundikai Ishwara Bhat, learned Counsel appearing for the petitioner and Sri.Vijaya Krishna Bhat appearing for the respondent. 4. Sri Pundikai Ishwara Bhat, learned Counsel appearing for the petitioner would contend that Trial Court has failed to exercise the jurisdiction vested in it and has erroneously rejected the valuation slip on the counterclaim made by the defendant in the written statement. 4. Sri Pundikai Ishwara Bhat, learned Counsel appearing for the petitioner would contend that Trial Court has failed to exercise the jurisdiction vested in it and has erroneously rejected the valuation slip on the counterclaim made by the defendant in the written statement. He would submit that only claim made in the written statement is with regard to declaration that defendant is the absolute owner of the residential premises and the said relief squarely falls within clause (d) of Section 24 and he would also submit that reasoning of the Trial Court that relief claimed by defendant falls within the purview of Section 24(b) of the Court Fees Act is erroneous since it is a “declaratory relief’ only that has been sought for and there is “no consequential or further relief’ claimed and as such it would fall within Section 24(d) of the Court Fees Act. In support of his submission he relies upon the following judgments: (i) 1982 (1) KLJ 335, Basalingappa Ningappa & Others Vs. Dy. Commissioner, Dharwar. (ii) ILR 2000 Kar.3382, Master K.P.Ponnappa Vs. K.P. Poovaiah (iii) 1969(2) Mys.L.J.344, Syed Vajeehunnisa begum & Others Vs. The Mysore State board of Wakfs by Secretary & Others. Accordingly he seeks for quashing of the order dated 5-2-2010 and prays for allowing the writ petition. 5. Per contra Sri.Vijaya Krishna Bhat would support the order of the Trial Court and contends that relief claimed in the counter claim of the defendant is for declaration in respect of immovable property and the words used in Section 24 is “with” or “without” consequential relief and irrespective of whether the defendant claims for declaration of title in respect of immovable property de hors non-claiming of consequential relief, Court fee payable would be as per clause (b) of Section 24 and supports the order of Trial Court and prays for dismissal of the writ petition. In reply to the judgments relied upon by the learned Counsel for petitioner he would submit that same are not applicable to the facts of the present case since in those judgments it was held reliefs claimed therein was incapable being valued and it was held that in such circumstances clause (d) of Section 24 of Court Fees Act would applicable which fact according to him is not present in the instant case and accordingly seeks for dismissal of the writ petition. 6. 6. Having heard the learned Counsel for the parties, perused the counterclaim raised in the written statement and the order dated 15-2-2010 impugned in the present writ petition, following question arises for my consideration: (1) Whether the Trial Court was correct in holding that relief claimed by the defendant as counter claim would fall under Section 24(b) and not under Section 24(d) of Karnataka Court Fees and Suits Valuation Act? (2) What order? 7. In order to appreciate the rival contentions raised by the parties, it would be necessary to analyse the relevant provisions of the Karnataka Court Fees and Suits Valuation Act, 1958 which would be applicable to the facts of the case. The came are as follows: For determination of the market value, Section 7 would be applicable and same reads as under: 7. Determination of market value.-(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. (2) The market value of land in suits falling under Sections 24(a), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be. 24. Suits for declaration. – In a suit for declaratory decree or order, whether with or without consequential relief, not falling tinder Section 25: (a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on (rupees one thousand) whichever is higher: (b) where the prayer is for declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on (rupees one thousand), whichever is higher: (c) xxxxx (d) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on (rupees one thousand) whichever is higher.” Since the petitioner has contended that clause (d) would be applicable to the facts of the present case it would be necessary to examine the judgments relied upon by the Writ Petitioner in this regard: (i) 1982(1) KLJ 335, Basalingappa Ningappa & Others Vs. Dy. Commissioner, Dharwar. Dy. Commissioner, Dharwar. Plaintiff sued for a declaration that the acquisition proceedings started under the Karnataka Industrial Area Development Act were null and void and for a permanent injunction, and valued the suit under Section 24(b). Held, the subject-matter of the suit was not immoveable properties sought to be acquired, but the validity of the acquisition proceedings. Hence the subject matter did not fall under Section 24(b) of the Act but fell under Section 24(d), and it was not necessary to furnish the market value of the immoveable properties as required by the proviso to Section 50 of the Act. Though plaintiffs had wrongly valued the suit under Section 24(b), it was the duty of the Court to apply the correct provision of law. (ii) ILR 2000 Kar. 3382, Master K.P.Ponnappa Vs. K.P.Poovaiah 7. Obviously, Section 25 relates to “Adoption suits” is of no relevance to the question involved herein. Section 24 governs three classes of declaratory relief by its respective clauses (a), (b) and (d), since the clause (c) having been omitted from the Act. First two clauses (a) and (b) thereof respectively pertain to the relief of “declaration and for possession of the property”, or for “declaration and for consequential injunction” with respect to immovable property. Evidently, these provisions, do not apply to the instant case since the additional relief of declaration incorporated in the plaint is neither for “possession of the property” or for “the consequential relief of injunction”. Sub-clause (d) of Section 24, which is relevant for our purpose, reads: “24 (d) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on (rupees one thousand) whichever is higher. (iii) 1969(2) Mys.L.J344. Syed Vajeehunnisa Begum & Others Vs. The Mysore State board of Wakfs by Secretary & Others. Held, the suit was one for declaration together with a relief consequential upon such declaration which was neither for recovery of possession nor for an injunction and the suit came under Section 24 (d) of the Act, for purpose of Court fee. 8. Syed Vajeehunnisa Begum & Others Vs. The Mysore State board of Wakfs by Secretary & Others. Held, the suit was one for declaration together with a relief consequential upon such declaration which was neither for recovery of possession nor for an injunction and the suit came under Section 24 (d) of the Act, for purpose of Court fee. 8. In respect of claim made in the plaint or counterclaim if it involves immoveable property the value of the property is to be determined as provided under various provisions of Court Fees Act as contemplated under Section 7 of the Karnataka Court Fees and Suits Valuation Act, 1957. For determining the market value of Land recourse will have to be taken to various provisions of the Court Fees Act. While determining the Court fee payable in respect of suits for declaration in respect of immoveable property it is required to be computed as contemplated under clauses (a), (b) and (d) of Section 24 the Court Fees Act, when the said relief claimed does not specifically fall under Section 25. Under Section 25 Court fee is payable in a suit for declaration where the validity or invalidity of an adoption or factum of adoption is in issue. Thus, excluding the validity or invalidity of an adoption or the factum of adoption whether declaration is sought for in this regard or not all other suits would fall under Section 24. 9. Clause (b) of Section 24 mandate where prayer is for declaration and consequential relief of injunction is claimed, and the relief is with reference to an immovable property automatically Court fee will have to be computed on one half of the market value of the property or on Rs.1.000/- which ever is higher. This read with the opening words of Section 24 it would emerge that in a suit where declaratory decree is sought for either with or without consequential relief, Court fee would be payable under clause (b) and if consequential relief has been sought for automatically Section 24(b) would gets attracted and when there is no consequential relief sought for, the opening words of Section 24 would also come into play so as to attract clause (b). In the instant case defendant is seeking declaratory decree in respect of an immoveable property and no consequential relief is sought for. In the instant case defendant is seeking declaratory decree in respect of an immoveable property and no consequential relief is sought for. The opening words of Section 24 specifies that even if consequential relief is sought for. Court fee that would become payable would be under Clause (b) and not Clause (d), in as much as the words used in Section 24 is: “with or without consequential relief”. Hence, the contention of learned Counsel for petitioner cannot be accepted and same fails. 10. Insofar as the judgments relied upon by the learned Counsel for the petitioner, same are analysed herein below and held same are inapplicable to the facts of the present case for the reasons assigned herein below. (i) 1969(2) Mys.L.J.344. Syed Vajeehunnisa Begum & Others Vs. The Mysore State Board of Wakfs by Secretary & Others. In the said case petitioner filed a suit in O.S.No.172/1966 on the file of the Civil Judge, Bangalore and sought for a decree directing that the properties mentioned in the plaint schedule ‘B’ and ‘C’ be deleted from the list of wakf published in the Gazette dated 22.7.1965. The plaintiff therein did not see a declaration that the property belongs to them but it is only the status of the property that was sought to be adjudicated and decided. Hence the said judgment is inapplicable to the facts of the present case. (ii) 1982 (1) KLJ 335 Basalingappa Ningappa & Others Vs. Deputy Commissioner, Dharwar. In the said case a declaration was sought that the acquisition proceedings started under the Karnataka Industrial Areas Development Act were null and void and for a permanent injunction generally came to be valued under Section 24(b) and it has been held that subject-matter of the suit was not the immovable property sought to be acquired but the “validity of the acquisition proceedings” and accordingly held that the subject matter did not fall under Section 24(b) of the Act but fell under Section 24(d) of the Act. Since the validity of acquisition proceedings was in question and a declaration was sought to be declared that acquisition proceedings are null and void, the proceedings as such was incapable of valuation and thus it was held that it is to be valued under Section 24(d) and not 24(b). Since the validity of acquisition proceedings was in question and a declaration was sought to be declared that acquisition proceedings are null and void, the proceedings as such was incapable of valuation and thus it was held that it is to be valued under Section 24(d) and not 24(b). Where as in the instant case a declaration has been sought in respect of an immovable property to declare that defendant is the absolute owner. As such the said judgment is inapplicable to the facts of the present case. (iii) ILR 2000 Kar. 3382. Master K.P. Ponnappa Vs. K.P. Poovaiah The issue regarding applicability of Section 24(d) was not in question and there was no finding recorded by the Trial Court and this Court also held the applicability of Section 24(d) of the Act was not in dispute before it. In view the said factual matrix this judgment is also inapplicable to the facts of the case. 11. In this regard it would be necessary to quote following decisions which would throw light on the words used in Section 24(b) of Court Fees Act, which are as follows: (1) AIR 1932 Allahabad 485 (FB) Kalu Ram Vs. Basu Lal and Others. The expression “consequential relief in Section 7 (IV) (c) means some relief which would follow directly from the declaration given, the valuation of which is not capable of being definitely ascertained which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a substantive relief. Consequently where a suit is for the cancellation of an instrument under the provisions of Section 39. Specific Relief Act, the relief is not a declaratory one. It falls neither under Section 7 (IV) (c) nor under Schedule 2, Article 17 (3), but under residuary Article Sch. 1 Art.1:5 All 331 (F.B.), Overruled: (1889) A WN 124, 1 O C 123: 23 Mad 490: 29 Bom 207 and AIR 1918 Pat 482. (2) AIR 1938 Oudh Mt. Rup Rani and Another Vs. Bithal Das No doubt the Court-fees Act, being a fiscal enactment, its provisions should be strictly construed: but they should not be so construed as to furnish a chance of escape and a means of evasion. Language is meant to be used as a vehicle for expression of one’s thoughts. (2) AIR 1938 Oudh Mt. Rup Rani and Another Vs. Bithal Das No doubt the Court-fees Act, being a fiscal enactment, its provisions should be strictly construed: but they should not be so construed as to furnish a chance of escape and a means of evasion. Language is meant to be used as a vehicle for expression of one’s thoughts. Where, however, it is abused for the purpose of concealing the real thoughts, it is the duty of a Court of justice to look to the substance of the claim to be gathered from the whole plaint, and not to allow itself to be deceived by the language of the relief used for evading the payment of proper Court-fee by concealing the real purpose of the suit: AIR 1934 Oudh 505. Approved: 39 Cal 704, Relied on; 1936 O W N 522 = AIR 1936 Oudh 317 = 162 IC 750. In view of the same the order of the Trial Court determining and holding that valuation slip filed by the defendant valuing the suit under Section 24(d) is erroneous, cannot be found fault with. Thus order of the Trial Court holding that the Court fee payable under Section 24(b) is required to be confirmed. In view of the above discussion, the writ petition is dismissed as devoid of merits. No order as to costs.