Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1877 (ALL)

Basant Kumar Mata Nehliya v. Chowdhary Ujjair

2011-08-04

DEVI PRASAD SINGH, SATISH CHANDRA

body2011
Devi Prasad Singh, J.- The instant appeal under Section 6-A of the Court Fees Act, 1860 (in short the Act) has been preferred against the order dated 20.5.2009 passed by the learned Civil Judge (Senior Division), Bahraich, in Regular Suit No. 157 of 2009. Learned Civil Judge had allowed the application filed by the defendants directing the plaintiffs-appellant to pay ad valorem court fee keeping in view the value of the property in dispute. Suit was filed for declaration and injunction with consequential relief. 2. The plaintiffs-appellants claimed to be the owner of the property marked as ABCDEFGHIJKL in the site plan filed with plaint. It is pleaded by the plaintiffs that their ancestors have been owner of the land in question since 1935 obtained from the Zamindar. They have constructed boundary wall on the substantial portion of the property with iron fencing. Different gata nos. constitute the property and right of ownership rests on written permission granted by the Zamindar in 1937-38 for the respective shares to the plaintiffs' ancestors. Certain portion of land was purchased through registered sale deed by plaintiffs' father Late Shri Kashi Ram on 28.5.1965 from the record as tenure holder. A factory of rice and dal mill was also established on a portion of land in question alongwith residential building and office of the mill. It is also pleaded that after independence right from 1952, the mill was registered with the industry department, Zila Parishad and Mandi Parishad renewed from time to time. Necessary correction was also made in the year 1969. 3. After death of grand-father Shri Laxmin Narain, plaintiffs' father Kashi Ram and grand father Banarsi lal inherited the property. They acquired the possession of the mill and adjoining grove land. There are number of trees of different varieties standing over the substantial portion of land. Certain portion of land was also sold to the different suger mill. It is pleaded that defendants tried to dispossess the petition­ers by their fraudulent acts and tried to forcibly evict them with their muscle men on 26.3.2009. Hence cause of action arise to prefer the suit. The cost of land, trees and machinery standing over the land in dispute has been assessed to Rs. ten lacs. It is pleaded that defendants tried to dispossess the petition­ers by their fraudulent acts and tried to forcibly evict them with their muscle men on 26.3.2009. Hence cause of action arise to prefer the suit. The cost of land, trees and machinery standing over the land in dispute has been assessed to Rs. ten lacs. While preferring the suit, the plaintiffs had prayed for declaration against defendants-respondents as owner of the land and property in question and also claimed relief for permanent injunction restraining the defendants not to interfere in the appellants' peaceful possession on the land in question. The trial court framed different issues and one of the issue relates to court fee. An objection was filed by the defendants that the court fee has not been sufficiently paid The payment of court fee by the plaintiffs in pursuance to provision contained in Section 7A of the Act is not lawful. The defendants stated that the appellants-plaintiffs is liable to pay ad valorem court fee keeping in view the cost of property in question. The trial court upheld the objec­tion of defendants and directed to pay court fee ad valorem keeping in view the cost of the property in sgit. Both the sides have relied upon Section 7A of the Act. The defendants stated that the appellants-plaintiffs is liable to pay ad valorem court fee keeping in view the cost of property in question. The trial court upheld the objec­tion of defendants and directed to pay court fee ad valorem keeping in view the cost of the property in sgit. Both the sides have relied upon Section 7A of the Act. Rel­evant portion of the Act is re-produced as under:- "Computation of fees payable in certain suits for money:- The amount of fee payable under this Act in the suit next hereinafter mentioned shall be computed as follows: For money-(i) In suits for money (including suits for damages or compensa­tion, or arrears of maintenance, or annuities, or of other sums payable periodically)-according to the amount claimed; For maintenance and annuities-(ii-a) In suits for maintenance and annuities or other sums payable periodically, according to the value of the subject-matter of the suit and such value shall be deemed to be ten times the amount claimed to be payable for one year; Provided that in suits for personal maintenance by females and minors, such value shall be deemed to be the amount claimed to be payable for one year; For reduction or enhancement of maintenance and annuities-(ii-b) In suits for reduction or enhancement of maintenance and annuities or the sums pay­able periodically according to the value of the subject-matter of the suit and such value shall be deemed to be ten times the amount sought to be re­duced or enhanced for one year, For other movable property having a market value-(iii) In suits for movable property other than money, where the subject-matter has a merket value-according to such value at the date of presenting the plaint; For declaratory decree with consequential relief (iv) In suits-(a) to obtain a declaratory decree or order, where consequential relief other than reliefs speci­fied in sub-section (iv-A) is prayed; and For accounts.- (b) For accounts according to the amount at which the relief sought is valued in the plaint or memorandum of appeal: Provided that in suits falling under clause (a), where the relief sought is with reference to any immovable property, such amount shall be the value of the consequential relief and if such relief is incapable of valuation, then the value of the immovable property computed in accordance with sub-section (v), (v-A) or (v-B) of this section as the case may be: [Provided further that in all suits falling under clause (a), such amount shall in no case be less than Rs. 300]: [Provided (also), that in suits falling under clause (b) such amount shall be the approximate sum due to the plaintiff and the said sum shall form the basis for calculating (or determining) the valuation of an appeal from a preliminary decree passed in the suit. For cancellation or adjudging void instruments and decrees--(iv-A) In suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value: (1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter, and (2) where he or his predecessor-in-title was not a party to the decree or instru­ment, according to one-fifth of the value of the subject matter, and such value shall be deemed to be- if the while decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is in­volved in the suit, the amount or value of the property to which such part relates. Explanation- The value of the property' for the purposes of this sub-section, shall be the market-value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) or (v-BO as the case may be. For easement.-(iv-B) In suits-(a) for a right to some benefit (not herein other­wise provided for) to arise out of land; For an injunction-(b) to obtain an injunction; To establish an adoption- (c) to establish an adoption or to obtain a declaration that an alleged adoption is valid; To set aside an adoption-(d) to set aside an adoption or to obtain a declaration that an alleged adoption in invalid or never, in fact, took place; To set aside an award other than awards mentioned in Section 8- (e) to set aside an award not being an award mentioned in Section 8; according to the amount at which the relief sought is valued in the plaint; [Provided that such amount shall not be less than one-fifth of the market value of the property involved in or effected by the relief sought or Rs. 200 which­ever is greater: Provided further that in the case of suits falling under clauses (a) and (b) the amount of court fee leviable shall in no case exceed Rs. 500] Explanation 1 - When the relief sought is with reference to any immovable property the market-value of such property shall be deemed to be the value computed in accordance with sub-section (v), (v-A) or (v-B) of this section, as the case may be. Explanation 2- In the case of suits- (i) falling under clauses (a) and (b), the property which is affected by the relief sought, and where properties of both the plaintiff and defendant are affect, the property of the plaintiff so affected; (ii) falling under clauses (c) and (d), the property to which title by succession or otherwise may be delivered or affected by the alleged adoption; and (iii) falling under clause (e), the property which forms the subject-matter of the award; shall be be deemed to be the property involved in or affected by the relief sought within the meaning of the proviso to this sub-section." Learned counsel for the appellants has relied upon Section 7(iv-A (b) of the Act and submits that since the suit is filed for declaration and injunction, the amount of court fee leviable shall in no case exceed Rs. 500/-which is paid by the appellants-plaintiffs. 4. A plain reading of relevant portion reproduced (supra) shows that so far as the injunction is concerned, court fee shall not exceed Rs. 500/-. Similarly, in case a suit is filed to obtain a declaratory decree or order, where consequential relief other than the relief specified in sub-Section (iv-A) is prayed, then for the occupant of the prop­erty, the court fee shall be paid to the amount on which relief sought is valued in the plaint or memorandum of appeal. However, in case, the suit is filed for cancellation or adjudging void instrument and decrees, then court fee shall be assessed on the face of market value of the property keeping in view the explanation given in the section. 5. It is settled law that it is for the plaintiff to pay court fees in terms of the relief sought in the plaint and ordinarily such valuation for the purpose of court fee and jurisdiction ordinarily has to be accepted vide AIR 1958 Supreme Court245 S. Rm. Ar. S. Sp. Sathappa Chettiar vs. S. Rm. 5. It is settled law that it is for the plaintiff to pay court fees in terms of the relief sought in the plaint and ordinarily such valuation for the purpose of court fee and jurisdiction ordinarily has to be accepted vide AIR 1958 Supreme Court245 S. Rm. Ar. S. Sp. Sathappa Chettiar vs. S. Rm. Ar. Rm. Ramanathan Chettiar, 1987 (4) SCC 69 Tara Devi vs. Sri Thakur Radha Krishna Maharaj through Sebaits Chandeshwar Prasad and Meshwar Prasad and another. 6. However, the aforesaid judgments of the Supreme Court are based on Section 7 (iv-c) of the Court Fees Act, 1870. Section 7 (iv-c) reads as under:- "For a declaratory decree and consequential relief, to obtain a declaratory de­cree or order, where consequential relief is prayed." By U.P. Amendment Act No. 44 of 1958, the provision with regard to declara­tory suit with consequential relief has been provided under Section 7 (iv (a) is as under:- "In suits- to obtain a declaratory decree or order, where consequential relief relief other than reliefs specified in sub-section (iv-A) is prayed. Further under the proviso, it has been provided that in suits falling under clause (a) where the relief sought is with reference to any immovable property, such amount shall be the value of the consequential relief and if such relief is incapable of valuation, then the value of the immovable property computed in accordance with sub-section (v) (v-A) or (v-B) of this section as the case may be: 7. In the present case, the consequential relief is of injunction for which the proviso to section (iv-B) provides that the amount of court fee leviable shall in no case exceed Rs. 300/-.To put in other words, in case the plaintiff is in possession of the property and files declaratory suit with prayer for injunction, then the Court fee leviable shall not exceed Rs. 500/- 8. The full bench has been relied upon by both sides reported in AIR All. 488 Chief Inspector of Stamps vs. Laxmi Narain and others, in which identical situa­tion has been dealt with.? Para 22 of the judgment is reproduced as under:- "In suit no. 500/- 8. The full bench has been relied upon by both sides reported in AIR All. 488 Chief Inspector of Stamps vs. Laxmi Narain and others, in which identical situa­tion has been dealt with.? Para 22 of the judgment is reproduced as under:- "In suit no. 12 of 1960, the reliefs prayed for were a declaration that the first plaintiff was the Mahant of the Math and the Sarbarakar of the deity and the properties of the Math and an injunction restraining the defendants from interfering with the possession of the first plaintiff over the properties as Mahant and Sarbarakar. The relief of injunction flowed directly from the right which the plaintiff desired to be declared and is a consequential relief. This suit is also, therefore, covered by sub-section (iv) (a)." The aforesaid proposition also revealed that from the combined reading of Section 7 ((iv-A) or Section (7 iv- B), the legislature to their wisdom while making provision for valuation of declaratory decree with consequential re­lief under the proviso of Section 7 (iv-a) has consciously excluded Section 7 (iv-A) which provides imposition of court fee with regard to the suit for can­cellation or adjudging void instrument or decree for money or other property having market value, where the court fee shall be assessed on the basis of market value of such property. In the present case, so far as relief is con­cerned, plaintiff has not made any prayer for cancellation or setting aside of any document, deed or revenue record or sought the delivery of possession. The proviso of Section 7 (iv-B) has not been dealt with in the cases referred relied upon by the parties counsel. 9. Attention of this court has been invited towards the proviso of section 7 (iv-B) of the Act and one other case relied upon by the parties counsel reported in [2005 (61) ALR 853 Smt. Veena Bahl (dead) through LRs. and another vs. Vishnu Kumar and others. In the case of Veena Bahl, Smt. Surendra Bala Devi was not in pos­session of the property. A prayer for permanent injunction was made restraining the defendants from alienating the property. Under these circumstances, the division bench of this court directed to pay ad valorem court fee holding that the provision of section 7 (iv) (a) of the Court Fees Act shall be applicable. A prayer for permanent injunction was made restraining the defendants from alienating the property. Under these circumstances, the division bench of this court directed to pay ad valorem court fee holding that the provision of section 7 (iv) (a) of the Court Fees Act shall be applicable. Other case rejied upon by the parties' counsel is reported in [2006 (24) LCD 920 : 2006 (1) ARC 717 ] Arun Kumar Tiwari vs. Smt. Deepa Sharma and others. In the case of Deepa Sharma, a declaratory decree was sought by the plaintiff with the prayer that the sale deed executed by defendant no. 1 in favour of defendant no. 5 by declared as illegal, ineffective and inoperative. In such circumstances, the division bench held that where the relief of injunction is consequential to the relief of declaration, ad valorem court fee has to be paid on entire valuation of suit property and Article 17 of Schedule 2 of the Court Fees Act shall not be applicable. 10. In the present case, the declaration is not based on resending of any docu­ment or cancellation of sale deed or any other alike instrument, not possession has been claimed. Plaintiff is in possession of the property. The provision contained in Section 7 (iv) (a) should be read jointly alongwith provision contained in Section 7 (iv-A) read with Section 7 (iv-B) and the provisos contained therein.? It is settled propo­sition of law that while interpreting statutory provision, it should not be read in piece­meal, but it should be read section by section, line by line and word by word. The provision contained in the section should be read in such manner not to negate the effect of other provision vide 2002 (4) SCC297 Grasim Industries Limited v. Col­lector of Customs; 2003 SCC (1) 410 Easland Combines v. CCE; 2006 (5) SCC 745 A. N. Roy v. Suresh Sham Singh and 2007 (10) SCC 528 Deewan Singh v. Rajendra Prasad Ardevi. A suit for declaration based on admitted evidence with consequential relief of injunction may not be frustrated for want of court fee. 11. The aforesaid proposition of law is strengthened from a case reported in 1998 (1) AWC 573 : 1998 (1) ARC 360 Anwarul Haq vs. 1st Additional District Judge. A suit for declaration based on admitted evidence with consequential relief of injunction may not be frustrated for want of court fee. 11. The aforesaid proposition of law is strengthened from a case reported in 1998 (1) AWC 573 : 1998 (1) ARC 360 Anwarul Haq vs. 1st Additional District Judge. Where a suit is filed for cancellation of sale deed on the ground of fraud, the court held that the court fee is payable under Section 7 (iv-A) and not under Article 17, Schedule 2 of the Act. In the case reported in 1992 (1) ARC 392:1992 (2) AWC 1000 Smt. Shefali Roy vs. Hero Jaswant Das, it was held that in a declaratory decree claimed by the plaintiff, the court fee payable shall be under Article 17 of Schedule 2. 12. In the present case, plaintiff-petitioner is in possession of property. Declara­tion of title and injunction is based on entry in revenue records and possession. Hence court fees does not seem to be payable ad valorem. Learned trial court has been failed to appreciate the law and full bench judgment has not been considered in its letter and spirit in right perspective. Accordingly, the appeal deserves to be allowed. The appeal is allowed. The order dated 20.5.2009 passed by the Civil Judge (Senior Division) Bahraich is set aside. Appeal allowed. Cost easy. Appeal allowed.