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2011 DIGILAW 704 (MP)

A. K. Ghosh v. Dhruv Kumar Haryani

2011-07-01

KRISHN KUMAR LAHOTI, SANJAY YADAV

body2011
ORDER Krishn Kumar Lahoti, J. 1. The petitioner has assailed order dated 1.10.2004 passed by IIIrd Civil Judge, Class-I, Jabalpur in civil suit no. 649-A/2003, by which an application filed by the defendants under Order 7 Rule 11 read with section 151 C.P.C., dated 28.2.2004 was disposed of by the trial Court with a direction to the petitioner/plaintiff to value the suit in accordance with section 8 of the Suits Valuation Act, 1887 for pecuniary jurisdiction and also to make payment of adequate Court fees on the plaint. 2. The trial Court found that the dispute is in respect of encroachment over 265 sq.ft. land on which defendants had constructed a wall. The plaintiff was not in possession of the property, but sought a decree of declaration and mandatory injunction. The plaintiff though valued the suit for Rs. 39,750/-, but had not paid ad-valorem Court fees. The trial Court also found that the relief of mandatory injunction was consequential in nature and cannot be granted until and unless suit for declaration is decreed. Holding present suit under Section 7(iv)(c) of the Court fees Act, 1870, the plaintiff was directed to value the suit and to pay adequate Court fees. 3. This order has been assailed by the petitioner on the ground that in fact the relief of mandatory injunction was not consequential in nature, but is an independent relief. He has drawn attention of the Court towards various paragraphs of the plaint and submitted that the suit for declaration and mandatory injunction was valued separately and fixed Court fees was rightly paid by the plaintiff. The petitioner placed reliance to the judgment of this Court in Waman Vishwanath Dhote Vs. Balwant rao and others AIR 1949 Nag 347, Smt. Sabina alias Farida Vs. Mohd. Abdul Wasit AIR 1997 MP 25 , M. P. State Electricity Board and another Vs. Kamla Sharma and others 2003 (4) MPLJ 233 and submitted that this petition may be allowed. 4. Learned counsel for respondents supported the order passed by the trial Court. He has also referred various paragraphs of the plaint in support of his contention that the relief of mandatory injunction was consequential in nature and the trial Court has rightly directed plaintiff to value the suit properly and to make payment of court fees. 5. 4. Learned counsel for respondents supported the order passed by the trial Court. He has also referred various paragraphs of the plaint in support of his contention that the relief of mandatory injunction was consequential in nature and the trial Court has rightly directed plaintiff to value the suit properly and to make payment of court fees. 5. The case of plaintiff in nutshell is that father of plaintiff Sukumar Ghosh purchased a plot from Poonabai by registered sale deed dated 18.10.1943. At the time of purchase there was a tapra on the land, which was demolished and a house was constructed on the land. Plaintiff A.K.Ghosh is the only son of his parents and is sole owner of the property. The adjoining plot towards east side bearing plot no. 19 had belonged to one Sardar Amar Singh. The defendants has purchased the plot from Sardar Amar Singh. That before 3 or 4 months of filing of the suit the defendants started to demolish eastern wall of the house, which was dividing the plot of the plaintiff and defendant and started to sink a plinth. This was objected by the plaintiff. The defendant has encroached land of plaintiff 2/4 ft. wide and 106 ft. in length - total area 265 sq. ft. The aforesaid encroached area has been valued by the plaintiff in para 6 of the plaint @ Rs. 150/- per sq. ft. at Rs. 39,750/- and on this land plaintiff has prayed declaration and mandatory injunction. In para 8 of the suit the plaintiff has put the valuation for the purpose of court fees and jurisdiction at Rs. 39,750/- and for declaration and mandatory injunction at Rs. 500/- but fixed Court fees has been paid. The defendants objected to it that the plaintiff is required to pay ad-valorem Court fees, which has been allowed by the trial Court. 6. To proceed further it would be appropriate if relevant provisions of Court fees Act and Suits Valuation Act are referred. For ready reference section 7(iv)(c) Court Fees Act, 1870 and section 8 of the Suits Valuation Act, 1887 are referred, which reads as under: 7. 6. To proceed further it would be appropriate if relevant provisions of Court fees Act and Suits Valuation Act are referred. For ready reference section 7(iv)(c) Court Fees Act, 1870 and section 8 of the Suits Valuation Act, 1887 are referred, which reads as under: 7. Computation of fees payable in certain suits - The amount of fee payable under this Act in the suits Next hereinafter mentioned shall be computed as follows: (i) (iii) (iv) in suits - (a) (b) (c) for a declaratory decree and consequential relief- to obtain a declaratory decree or order, where consequential relief is prayed. In all such suits the plaintiff shall state the amount at which he values the relief sought;" Section 8 of the Suits Valuation Act, 1887 8. Court-fee value and jurisdictional value to be in the same in certain suits - Where in suits other than those referred to in the Court Fee Act 1870 section 7, paragraphs v, vi, and ix, and paragraph x, clause (d), Court-fees are payable ad valorem under the Court Fees Act, 1870 the value as determinable for the computation of court fees and the value for purposes of jurisdiction shall be the same. It is a settled law that a suit for declaration with a consequential relief for injunction is not a suit for declaration simplicitor. Whether the another relief claimed in a particular case is a consequential relief or not is based upon the facts and circumstances of each case. 7. In this case the plaintiff is claiming declaration in respect of land which is encroached by the defendants by raising construction of wall and in para 6 of the plaint, the plaintiff has specifically pleaded thus:- 6. That as aforesaid the area of the encroach portion is 265 (two hundred sixty five) sq.ft., and presently the rate of sale per sq.ft., is not less Rs. 150/- per sq.ft., with the result the value of the encroach portion would be at Rs. 39,750/- (Rs. thirty nine thousand seven hundred fifty). Hence it is necessary for the plaintiff to have a declaration of ownership of encroached plot and mandatory injunction against the defendants, to this effect the defendants served with the notice dated 1.10.2003 which was refused." The aforesaid pleadings specifically states that the land was encroached by the defendants. 39,750/- (Rs. thirty nine thousand seven hundred fifty). Hence it is necessary for the plaintiff to have a declaration of ownership of encroached plot and mandatory injunction against the defendants, to this effect the defendants served with the notice dated 1.10.2003 which was refused." The aforesaid pleadings specifically states that the land was encroached by the defendants. The plaintiff is claiming declaration that the land encroached by the defendants is of the ownership of plaintiff and a mandatory injunction has been prayed against the defendants to remove the wall constructed by the defendants. Until and unless it is declared that plaintiff is owner of the land encroached by defendant, a decree for mandatory injunction cannot be granted. The relief of mandatory injunction is not an independent, but is a consequential to the relief of declaration. In fact the suit of plaintiff ought to have been for possession and relief of mandatory injunction is apparently for removal of wall constructed by the defendants by encroaching land of plaintiff. In these circumstances also, the plaintiff was required to value the suit as per value of subject matter and ought to have paid the court fees, but in place of this the plaintiff has sought relief of declaration and mandatory injunction. By the mandatory injunction the plaintiff is praying for removal of wall and possession over the encroached area. In these circumstances even if the title of plaintiff is not disputed by the defendants, even then the plaintiff was required to put valuation of land encroached by the defendant. In this regard the plaintiff in para 6 of the plaint has specifically averred. If the aforesaid pleadings are taken into consideration there is no iota of doubt that even for the relief of mandatory injunction the plaintiff is required to put a proper valuation of suit and to make payment of ad-valorem court fees. Section 7(iv)(c) provides for a declaratory decree and consequential relief. Section 7(iv)(d) provides a decree for an injunction. The section provides that in all such suits the plaintiff shall state the amount on which he values the relief sought. Section 8 of the Suits Valuation Act specifically provides that where any suit other than those provides that court fees valued and jurisdictional value shall be the same, except those which are referred in paragraphs v, vi & ix of section 7 of the Court Fees Act. Section 8 of the Suits Valuation Act specifically provides that where any suit other than those provides that court fees valued and jurisdictional value shall be the same, except those which are referred in paragraphs v, vi & ix of section 7 of the Court Fees Act. The present suit is undoubtedly covered under section 7 (iv) (c) or (d) and in both the conditions the plaintiff has to value suit for the purpose of jurisdiction and Court fees same. 8. Section 7(iv)(d) also provides that to obtain an injunction, the plaintiff shall state the amount at which he values the reliefs sought. In this case for encroached area the plaintiff has valued the suit for Rs. 39,750/-, but has paid fixed Court fees of Rs. 500/-, while as per section 7(iv)(d) of the Court Fees Act ad-valorem Court Fees is required. So far as fixed Court fees on the relief of injunction is concerned it is governed by Article 17 of Schedule II, which provides as under :- SCHEDULE II FIXED FEES Number Proper Fee 17. Plaint or memorandum of appeal in each of the following suits :- (i) to alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or any Revenue Court; (ii) to alter or cancel any entry in a register of the names of proprietors of revenue-paying estates; (iii) to obtain a declaratory decree where no consequential relief is prayed; (iv) to set aside an award; (v) to set aside an adoption; (vi) every other suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act. When presented to the Court of Civil Judge Class-II Five hundred rupees When presented to the Court of Civil Judge Class-I One thousand rupees When presented to the Court of Additional District Judge or District Judge Two thousand rupees The aforesaid Article specifically provides that to obtain a declaratory decree where no consequential relief is prayed, fixed Court fees is provided. Similarly where it is not possible to estimate at a money-value of the subject matter in dispute, fixed Court fees is provided. 9. But in the present case, the plaintiff has put valuation in respect of property by which, petitioner is seeking relief of mandatory injunction. Similarly where it is not possible to estimate at a money-value of the subject matter in dispute, fixed Court fees is provided. 9. But in the present case, the plaintiff has put valuation in respect of property by which, petitioner is seeking relief of mandatory injunction. When the plaintiff himself has put the valuation of property and sought a relief of mandatory injunction, then as per the valuation put by the plaintiff he was required to make payment of ad-valorem Court fee. 10. In view of aforesaid, no fault is found in the impugned order directing plaintiff to put the proper valuation for jurisdiction and for the purpose of payment of Court fees as is required under section 8 of Suits Valuation Act. 11. This petition is found without merit and is dismissed, with no order as to costs.