Research › Search › Judgment

Uttarakhand High Court · body

2015 DIGILAW 359 (UTT)

M. K. MAMIK v. WELHAM GIRLS HIGH SCHOOL

2015-07-20

U.C.DHYANI

body2015
JUDGMENT U.C. Dhyani, J.(Oral) By means of present civil revision, the plaintiff / revisionist seeks to set aside order dated 02.08.2014, passed by learned II Addl. Civil Judge (Sr. Div.), Dehradun, in Suit no. 974 of 2001, captioned as Miss M.K. Mamik vs The Welham Girls’ High School Society and others. 2. The dispute relates to issue no. 5. The said issue was relating to valuation of the suit and payment of court fee. The question was – whether the suit is under valued and court fee paid is insufficient? The plaintiff desired certain reliefs in her plaint. The court below while deliberating upon the same held that the court fee paid on relief ‘a’ and ‘b’ was sufficient. Court below was, however, of the opinion that the plaintiff did not pay the required court fee in view of Section 7(1) of the Court Fees Act, 1870. The trial court was also of the opinion that the court fees paid on relief ‘c’ is insufficient and, therefore, directed that the deficient court fee be made good and, accordingly, issue no. 5 was partly decided in favour of the plaintiff and partly against her. Aggrieved against such an order, present civil revision has been preferred by the plaintiff / revisionist. In other words, the plaintiff has challenged that part of the order of the trial court whereby she was directed to make good the deficient court fee in respect of relief ‘c’. 3. Let us now revert back to the relief clause, which reads as under: “(a) A decree for declaration declaring that termination letter dated 31.08.2001 issued by the defendant under the signatures of defendant no. 3 terminating the service of the plaintiff as illegal, void, inoperative and without jurisdiction and not binding upon the plaintiff and she is entitled to the damages at the rate of the salary which is payable to the Maths Teacher/Head Mistress of the Junior School, with all consequential benefits. (b) A decree for realization of a sum of Rs.12,74,020/- being the damages for the period from 01/01/2007 to 31/08/2009 be passed in favour of the plaintiff and against the defendant. (c) A decree for damages @ Rs. (b) A decree for realization of a sum of Rs.12,74,020/- being the damages for the period from 01/01/2007 to 31/08/2009 be passed in favour of the plaintiff and against the defendant. (c) A decree for damages @ Rs. 45,000/- per month from 1st September 2009 till the date of superannuation of the plaintiff on completion of 60 years of age, with all consequential benefits, may very kindly be passed in favour of the plaintiff and against the defendants. (d) Full cost of the suit be awarded in favour of the plaintiff and against the defendant.” 4. The controversy at present, is confined to relief ‘c’ of the prayer clause, which says that a decree for damages @ Rs. 45,000/- per month from 1st September 2009 till the date of superannuation of the plaintiff on completion of 60 years of age, with all consequential benefits, may kindly be passed in favour of the plaintiff and against the defendants. 5. Learned court below relied upon sub-section (1) of Section 7 of the Court Fee Act, 1870, which runs as follows: “7. Computation of fees payable in certain suits for money. –The amount of fee payable under this Act in the suits 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.” 6. The court below was of the opinion that since the plaintiff has claimed damages at the rate of Rs. 45,000/- per month, therefore, the plaintiff was required to pay court fee on the same. It was also mentioned by the trial court that the plaintiff has paid only tentative court fee on relief ‘c’, which is insufficient. 7. It will be worthwhile to mention some of the important grounds which have been taken by the plaintiff / revisionist in her revision as below: “Relief ‘c’ is to the following effect: “(c) –A decree for damages @ Rs. 45,000/- per month from 1st September 2009 till the date of superannuation of the plaintiff on completion of 60 years of age with all consequential benefits may very kindly be passed in favour of the plaintiff and against the defendants.” - Relief ‘c’ was added by amendment application dated 11.01.2010, which was allowed on 09.03.2010. 45,000/- per month from 1st September 2009 till the date of superannuation of the plaintiff on completion of 60 years of age with all consequential benefits may very kindly be passed in favour of the plaintiff and against the defendants.” - Relief ‘c’ was added by amendment application dated 11.01.2010, which was allowed on 09.03.2010. Since the damages were claimed from 01.09.2009 and hence on the date of moving the application for amendment, i.e. 11.01.2010, the damages which became due were only Rs. 1,80,000/- and the revisionist has tentatively valued relief ‘c’ to Rs. 2,25,000/- being the damages for the period from 01.09.2009 till 31.01.2010 and the revisionist has paid the tentative court fee on Rs. 2,25,000/- and for future damages till date of superannuation, it was mentioned that the court fee, if found necessary, shall be paid at the time of execution of the decree. - It is a settled law that the plaintiff is liable to pay the court fee on the amount which has accrued till the date of filing of the suit. Since in the present case, the suit was filed on 10.12.2001 and thereafter by virtue of an order passed by Hon’ble Apex Court in a petition moved by the respondents, the plaintiff has limited her relief for declaration and damages and since the amendment application was moved on 11.01.2010 and hence the court fee was liable to be paid till the date of moving the said amendment application, which was done accordingly. - It is also a settled law that for future mesne profit or damages, the court fee is not payable and in case any decree is passed, then only the decree holder is liable to pay the court fee. This aspect of the matter was totally overlooked by the court below. - It is also a settled law that the court fee is to be paid as per the plaint allegations and not on the basis of any defence taken by the defendant either in the written statement or otherwise. This aspect of the mater was also overlooked by the court below. - The court below has wrongly held that the suit has to be valued for the purpose of relief ‘c’ for the period from 01.09.2009 to 2016. This aspect of the mater was also overlooked by the court below. - The court below has wrongly held that the suit has to be valued for the purpose of relief ‘c’ for the period from 01.09.2009 to 2016. - The court below should have restricted itself for valuation of the suit from 01.09.2009 till the date of moving the amendment application and on which, the court fee has already been paid by the revisionist. Thus, the decision dated 02.08.2014 of the court below is not in accordance with law and the court below has committed material irregularity and illegality while passing the impugned order.” 8. Here are some of the landmark decisions of Hon’ble Patna High Court, Hon’ble Madhya Pradesh High Court, and a decision rendered by Hon’ble Supreme Court, which relates to Tamil Nadu Court Fees and Suits Valuation Act, 1955. 9. It was held by Hon’ble Patna High Court in Girja Kuer vs Shiva Prasad Singh and others, AIR 1935 Patna 160, as under: “……. In that case the question was whether an application for ascertainment of future mesne profits should bear ad valorem court-fee. Referring to future mesne profits Dawson-Miller, C.J., said: “No cause of action had arisen at the time with regard to future mesne profits, for no amount was due and no estimate could be made with respect to a future claim which might or might not arise. The Civil Procedure Code however provides by O. 20 R. 12 that where a suit is for the recovery of possession of immovable property and for rent or mesne profits the Court, in addition to granting a decree for possession and mesne profits up to the institution of the suit, may also direct an inquiry as to the mesne profits from the institution of the suit until either delivery of possession to the decree-holder, or relinquishment of possession by the judgment-debtor, or the expiration of three years from the date of the decree, whichever event first occurs. This provision was no doubt inserted in the Code in order to prevent multiplicity of suits, as without it a further suit would be necessary in order to recover the rents and profits for the period during which the decree-holder was kept out of possession after the suit. This provision was no doubt inserted in the Code in order to prevent multiplicity of suits, as without it a further suit would be necessary in order to recover the rents and profits for the period during which the decree-holder was kept out of possession after the suit. The relief provided by this enactment is not an immediate right to any ascertained amount, or to any amount which is capable of being estimated, but a right to an inquiry only, in case, the plaintiff should be kept out of possession after the institution of the suit, and no special court-fee appears to be provided for such relief.” Jwala Prasad, J., said: “The learned Subordinate Judge had no jurisdiction to reject the plaint originally filed upon the ground that it did not bear the proper court-fee. The plaintiff claimed past mesne profits, which according to him, approximately amounted to Rs. 10,000 as required under S. 7 R. 2 Civil P.C., and paid a court-fee thereon under S. 7, Cl. (4)(f), Court-fees Act. He also prayed for determination of his right to future mesne profits. The amount of future mesne profits was not ascertainable at that time on account of the uncertainty of time during which the plaintiff would be out of possession as well as the uncertainty of the profits which the defendant would be expected to reasonably earn from the land and appropriate. To take the extreme case, the land might be submerged by water and remain so after the institution of the suit till the plaintiff recovered possession of the property and in that case there would be no profit earned by the defendant which could be claimed as mesne profits by the plaintiff. Therefore, to ask the plaintiff to state in his plaint the ‘approximate amount of mesne profits’ would be to ask him to value his relief upon an imaginary figure. This position is so absurd that the legislature has not thought it fit to compel the plaintiff to value the future mesne profits or to pay any court-fee thereon at the time of filing the plaint.” I have referred to these observations to show that future mesne profits being uncertain cannot be taken into account for the purpose of payment of court-fee and for the purpose of determining the value of a suit……. …….Applying the analogy of future mesne profits to future damages it is clear that no court-fee is payable in respect of the damages pendente lite. It follows therefore that it cannot be taken into account for determining the value of the suit. It was held in 1921 Pat 118(4) that a Munsif before whom a suit has been instituted is competent to pass a decree for future mesne profit for any amount irrespective of his pecuniary jurisdiction and that an appeal would lie to the District Judge. This case is an authority for the proposition that mesne profits for the period subsequent to the suit are not to be taken into account in determining the value of the suit for the purposes of jurisdiction, and the forum of the suit determines the forum of appeal. The same proposition is also deducible from a Special Bench decision of this court in 1934 Pat 204(5)……. …..The present case seems to me quite simple coming within clear provisions of the Suits Valuation Act. The value of this suit is the value for the purpose of court-fee and court-fee is not payable and, as a mater of fact, has not been paid in respect of future damages. The Court could not have asked the plaintiff to pay court-fee on that amount. As I have said, the value of the claim is the value the plaintiff claims on the date of the suit, and it cannot be dependent on what may or may not happed after the institution of the suit. The suit could have been disposed of on admission of the defendant on the very day it was instituted. For purpose of Privy Council appeals it has been definitely held that mesne profits accruing subsequent to the institution of the suit cannot be taken into account”. [Emphasis Supplied] 10. It will also be worthwhile to quote paragraph nos. 17, 30 and 31 of the decision rendered by Hon’ble Madhya Pradesh High Court in Shivaji vs Deoji and others, AIR 1974 Madhya Pradesh 123. The same are reproduced here-in-under: “17. We may refer to some cases on which we rely for the view taken above. [Emphasis Supplied] 10. It will also be worthwhile to quote paragraph nos. 17, 30 and 31 of the decision rendered by Hon’ble Madhya Pradesh High Court in Shivaji vs Deoji and others, AIR 1974 Madhya Pradesh 123. The same are reproduced here-in-under: “17. We may refer to some cases on which we rely for the view taken above. The latest pronouncement on the subject is Gopalakrishna Pillai v. Meenakshi Aval, ( AIR 1967 SC 155 ) when the view taken in Basavayya v. Guravayya ( AIR 1951 Mad 938 (FB) and Fakharuddin Mahomed Ahsan v. Official Trustee of Bengal, [(1882) ILR 8 Cal 178] (PC) was approved and it was held that :- “Order 20, Rule 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order 7, Rule 1 and 2, Order 7, Rule 7 of the Code of Civil Procedure and Section 7(1) of the Court-Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of Order 20, Rule 12 apply. But in a suit to which the provisions of Order 20, Rule 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief, though it is not specifically asked for in the plaint”. “30. ……If on the contrary, the plaintiff succeeds his claim for future mesne profits can be determined under Order 20 Rule 12, Civil Procedure Code and if decreed in his favour then he shall be liable to pay court-fees before recovering them from the defendant (vide section 11, Court-Fees Act). “30. ……If on the contrary, the plaintiff succeeds his claim for future mesne profits can be determined under Order 20 Rule 12, Civil Procedure Code and if decreed in his favour then he shall be liable to pay court-fees before recovering them from the defendant (vide section 11, Court-Fees Act). “31. Consequently for the reasons given above our opinion on the question referred to this Bench is as follows:- “If in a suit for past mesne profits and possession the plaintiff also prays for a decree for future mesne profits then he is neither required to value the relief of future mesne profits nor pay any Court-fees thereon as in such cases he has no existing legal right to claim such future mesne profits and has no cause of action for them on the date of suit. Further, in our opinion, when in such a suit in which a prayer for future mesne profits is also made, the Court either decrees or refuses to grant future mesne profits, then in the event of an appeal either by the defendant or by the plaintiff, court-fees on such mesne profits which may have become due from the date of suit till the date of appeal are not payable.” [Emphasis Supplied] 11. It goes without saying that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole, as has been observed by Hon’ble Apex Court in Neelavathi and others vs N. Natarajan and others, AIR 1990 Supreme Court 691 and S. Rm. Ar. Sp. Sathappa Chettiar vs. S. Rm. Ar. Rm. Ramanathan Chettiar, 1958 SCR 1021. 12. The trial court has, therefore, committed a mistake in directing the plaintiff to make good the deficient court fee in relation to relief ‘c’, inasmuch as that relief refers to future mesne profits. The plaintiff has no cause of action on the date of the institution of the suit and it is not possible for the plaintiff to plead this cause of action or to value it or to pay court fee thereon at the time of the institution of the suit. 13. The plaintiff has no cause of action on the date of the institution of the suit and it is not possible for the plaintiff to plead this cause of action or to value it or to pay court fee thereon at the time of the institution of the suit. 13. Since the plaintiff has also prayed for a decree of future mesne profits, then she is neither required to value the relief of future mesne profits nor pay any court fee thereon, as, in such case, she has no existing legal rights to claim such future mesne profits and has no cause of action on the date of institution of the suit. No cause of action arose to the plaintiff at the time of the institution of the suit with regard to future mesne profits, for no estimate could be made with regard to a future claim which might or might not arise. Future mesne profits accruing subsequent to the institution of the suit being uncertain cannot be taken into account for the purpose of payment of court fee and for the purpose of determining the value of the suit. 14. Civil revision, therefore, succeeds and is allowed. That part of the impugned order whereby the plaintiff was directed to make good the deficient court fee in terms of relief ‘c’ in the plaint is set aside. No order as to costs.