Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 523 (BOM)

Panchaleshwar Sansthan v. Mangesh Janardhan More

2018-02-22

A.S.CHANDURKAR

body2018
JUDGMENT : 1. Admit. Heard finally with consent of learned counsel for the parties. By this civil revision application the original defendants in the suit filed by non-applicant Nos. 1 and 2 have challenged the order passed by the trial Court on their application filed under provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908 (for short, the Code) seeking rejection of the plaint on the ground that the Court fees had been paid improperly. The trial Court by order dated 15-11-2016 has been pleased to reject that application by observing that the suit has been properly valued. 2. According to the non-applicant Nos. 1 and 2 they along with a few others were persons having interest in Lord Panchaleshwar. After obtaining permission of the Assistant Charity Commissioner a representative suit was filed by them praying that the non-applicant Nos. 4 and 5 herein be restrained from paying any amount of compensation to the applicants herein which compensation was awarded in proceedings under the Land Acquisition Act, 1894. According to the said plaintiffs, the applicants were not entitled to receive that amount of compensation and it was liable to be utilized only for purposes of the registered trust. 3. The applicants herein filed an application under provisions of Order VII, Rule 11 of the Code stating therein as per the averments in the plaint the amount of compensation receivable under award was Rs. 14,44,932/-. The ad valorem Court fee on that amount was Rs. 31,030/-. It was stated that without paying the proper Court fee the suit was not maintainable and therefore the plaint was liable to be rejected. Reply was filed by the original plaintiffs in which they stated that the suit was filed in representative capacity and the purpose of filing the suit was to protect the amount of compensation that was payable to the trust. The plaintiffs were not claiming any relief for themselves. By the impugned order the trial Court held that the plaint was not liable to be rejected on the ground that it was properly valued as per provisions of section 6(iv)(j) of the Maharashtra Court Fees Act, 1959 (for short, the said Act). Being aggrieved the said defendants have filed this civil revision application. 4. By the impugned order the trial Court held that the plaint was not liable to be rejected on the ground that it was properly valued as per provisions of section 6(iv)(j) of the Maharashtra Court Fees Act, 1959 (for short, the said Act). Being aggrieved the said defendants have filed this civil revision application. 4. Shri R.N. Ghuge, learned counsel for the applicants submitted that the plaint was not properly valued in as much as the relief sought therein was susceptible to monetary valuation. The trial Court despite noticing that the amount of compensation involved in the suit was Rs. 14,44,932/- committed an error in holding that the suit was properly valued. According to the learned counsel in view of provisions of Article 7 in Schedule-I to the said Act ad valorem Court fee was liable to be paid by the plaintiffs. The conclusion of the trial Court that the Court fees had been paid in accordance with provisions of section 6(iv)(j) of the said Act was incorrect and therefore the plaint was liable to be rejected. 5. Shri A.R. Deshpande, learned counsel for the original plaintiffs on the other hand submitted that the suit as filed was in representative capacity after obtaining due permission of the learned Assistant Charity Commissioner. The plaintiffs were not seeking any monetary relief for themselves and that it was prayed that the Authorities be directed to pay the amount of compensation only to the trust. The other defendants excluding the trust had no right to claim the said amount of compensation and therefore the suit had been rightly valued under provisions of Article 7 of Schedule-I to the said Act. The trial Court rightly considered this aspect of the matter and refused to reject the plaint. He placed reliance on the decision in Rajaram Bhagwati Tiwari and Ors. vs. Municipal Corporation of Greater Bombay and Ors. 2004 (3) Mh. L.J. 290. 6. Perusal of the averments in the plaint indicates that according to the plaintiffs, land block No. 115 was gifted by one of the villagers in favour of the trust. The trust accordingly became the owner of that property. In proceedings under Land Acquisition Act, 1894 part of that land was sought to be acquired. It is further pleaded that the compensation in those proceedings is likely to be awarded in favour of the trust. The trust accordingly became the owner of that property. In proceedings under Land Acquisition Act, 1894 part of that land was sought to be acquired. It is further pleaded that the compensation in those proceedings is likely to be awarded in favour of the trust. According to the plaintiff the amount of compensation is liable to be paid only to the trust which is represented by the Assistant Charity Commissioner. It was therefore prayed that the amount of compensation to be paid only to the trust and not to any other defendants. The affidavit of plaintiff No. 1 filed along with the suit indicates that the suit has been filed after obtaining permission from the learned Assistant Charity Commissioner and it has been filed in representative capacity. 7. As per provisions of Article 7 of the Schedule-I to the said Act if in the plaint a prayer is made for seeking substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss then ad valorem Court fees have to be paid. Insofar as provisions of section 6(iv)(j) of the said Act is concerned, if any declaration is sought with or without injunction and the subject-matter in dispute is not susceptible of monetary evaluation and the matter is not otherwise provided for under the said Act a specified Court fee has to be paid. These two provisions have been considered by the Division Bench of this Court in Gulam Mohamed Mohamed Yunus and Anr. vs. Lalchand Chelaram and Ors. AIR 1976 Bombay 389. In paragraph No. 12 of the decision it has been observed thus: “12. The analysis of the two provisions would show that section 6(iv)(j) contemplates suits where the subject matter in dispute is not susceptible of monetary evaluation and where the suit is not otherwise provided for by the Court-fees Act. Article 7, on the other hand, refers to the obtaining of substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss. Thus whereas section 6(iv)(i) lays emphasis on the subject matter of the suit, under Article 7substantive relief is to be looked into. The expression subject-matter is a wider expression. In looking to the recitals of the plaint and in assessing the prayer the objective should be to find out what relief is substantively asked for. Thus whereas section 6(iv)(i) lays emphasis on the subject matter of the suit, under Article 7substantive relief is to be looked into. The expression subject-matter is a wider expression. In looking to the recitals of the plaint and in assessing the prayer the objective should be to find out what relief is substantively asked for. That would be the primary function for determining the application of Article 7 of Schedule (I), so that the next step would be to find out whether such relief is or is not capable of being valued in terms of money value or at least loss to be occasioned could be estimated in money value. Apparently, if any suit satisfies element of Article 7, Schedule I, it could be said with reason that the suit is provided for by the Act so that it would automatically be out of the purview of Section 6(iv)(j) of the Act. All these aspects, therefore, have to be looked into for finding out whether section 6(iv)(j) applies or Article 7 applies and that will have to be done by looking into the subject-matter so far as the former provision is concerned.....” 8. From the aforesaid it is clear that one of the test that is required to be applied is whether the substantive relief sought can be valued in terms of monetary gain or prevention of monetary loss. If same can be done then the suit would be beyond the purview of section 6(iv) (j) of the said Act. As noted above, the plaintiffs are not seeking the relief with regard to the amount of compensation for any individual. This relief is sought in favour of trust and against the other defendants. There is no question of any monetary gain on the part of the plaintiffs. The nature of the suit is in representative capacity after obtaining permission of the learned Assistant Charity Commissioner. In the light of the aforesaid law as laid down, I find that the trial Court has rightly held that the suit has been properly valued under provisions of section 6(iv)(j) of the said Act. It has therefore rightly refused to reject the plaint on that count. I do not find any jurisdictional error being committed by the trial Court while passing the impugned order. Hence Civil Revision Application stands dismissed with no order as to costs. Revision dismissed.