Smt. Urvashi Bai Sharma & Another Vs Smt. Indumati Sharma & Others.

Chhatisgarh High Court (Single Judge)

WA->WRIT APPEAL, 42 of 2015, Judgment Date: May 15, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
M . A . No. 42 o f 20 14
Smt. Urvashi Bai Sharma & Another
…... Appellants.
Versus
Smt. Indumati Sharma & Others.
…...Respondents.
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Mr. Parag Kotecha, Advocate for the Appellants.
Mr. Pallav Mishra, Advocate for the Respondent No.1.
Mr. S.C.Khakharia, Dy. A.G. for the State/ Respondent No.5.
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Hon’ble Shri Justice Goutam Bhaduri
JUDGMENT
(Delivered on 15.05.2015)
1. Challenge in this appeal is to the order dated 11.02.2014 passed in
Civil Suit No.21-A/2012 by the learned Additional District Judge,
Mungeli, wherein, the Court of Additional District Judge has ordered for
return of the plaint on the ground that the valuation of jurisdiction of Rs.
12 Lacs has not been properly explained and held that on calculating
the land revenue of the disputed property i.e. 20 times of the land
revenue, it comes to Rs.96/- which is less than paid Court fees of
Rs.500/- each for declaration and injunction. Consequently, the Court
has held that the Court of Additional District Judge does not have
jurisdiction to entertain the suit and has ordered for return the suit to
file in the proper Court of Civil Judge.
2. The relevant facts and averments in the plaint are that a suit is filed by
one Smt. Urvashi Bai Sharma, widow of Ishwar Prasad and Ashok
Sharma against Smt. Indumati Sharma, Ramadhar Sharma,
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Ramsahay Sharma & Parmeshwar Sharma. The plaintiffs and
defendants have shown to be relative and the property is claimed
through one Ishwar Prasad, who died on 20.05.1994. The suit property
is described in Schedule 'A' of the plaint. It is stated that in respect of
the suit property, the plaintiffs are in possession and since after death
of Ishwar Prasad, the name of the plaintiff alongwith her daughters
were recorded in revenue records by an order passed in Revenue
Case No. 104 A-6/1994-95. It is pleaded that subsequently, the
defendants also got their name recorded in respect of such land and
alongwith it the names of the daughters of the plaintiff were deleted.
Therefore, the suit for declaration and permanent injunction was
sought for.
3. The cause of action stated to arose on 28.05.1994 when the
defendants filed an application before the Tahsildar and got their name
recorded and subsequently it is pleaded that when the name of four
daughters of the plaintiff were deleted on 20.09.2009 and lastly on
28.11.2011 when an application was filed before the Tahsildar,
Mungeli, for partition of the said land. In the said plaint on the basis of
aforesaid pleading, declaration was sought for that the property
described in Schedule 'A' be declared as joint property and the
plaintiffs are in possession thereof. Perusal of plaint averments shows
that declaration was sought for under Article 17 of the Court-fees Act
and fixed Court fees of Rs.500/- was affixed. Further for permanent
injunction fixed Court fees of Rs.500/- was affixed.
4. After the notice of the suit, an application was preferred under Order 7
Rule 10 of CPC by the defendants. It is stated therein that the suit
which is filed is covered within the jurisdiction of First Civil Judge
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Class-II and therefore, the suit cannot proceed before the First
Additional District Judge and it was prayed that since the suit is not
properly valued, the suit be returned to be filed to the proper Court.
5. On the basis of the said application, the learned Court below has
passed the order, which is a subject of appeal.
6. The learned counsel for the appellant would submit that the suit was
valued according to Schedule-II, Article 17(iii) of the Court-fees Act.
The suit is predominantly for the declaration, which is governed by
Article 17(iii) of Schedule-II of the Court-fees Act and fixed Court fees
is paid. He further submits that the expression 'consequential relief' in
Section 7(iv)(c) of the Court-fees Act means some relief which would
flow directly from the declaration given, the valuation of which is not
capable of being definitely ascertained and which cannot be claimed
independently of the declaration as a “substantial relief”. He therefore
placed his reliance in 1988 M.P.L.J. 246 and 2000(4) M.P.H.T. 318
and submits that the Court cannot interfere simply because some
objection has been raised without any supporting material and prays to
set aside the order.
7. Reading the order would reflect that the Additional District Judge has
observed that since the declaration in respect of agricultural land has
been sought for, the Court fees therein would be 20 times of the land
revenue and since the Court fees is paid of Rs.500/-, which is much
higher to 20 times of the land revenue of the suit land and therefore,
observed that the suit is over valued. In a result thereof it was directed
to be returned to be presented to the Court having jurisdiction.
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8. In the matter of Court fees, the Supreme Court in case of Sathappa
Chettiar v. Ramanathan Chettiar reported in AIR 1958 SC 245 has
held that the question of court-fees 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 the merits. Subsequently, the same view was followed in
case of Shamsher Singh v. Rajinder Prasad & Others reported in
AIR 1973 SC 2384 wherein again the Supreme Court reiterated that
the court-fee payable on a plaint is certainly to be decided on the basis
of allegations and the prayer in the plaint and the question whether the
plaintiff's suit will have to fail for failure to ask for consequential relief is
of no concern to the Court at that stage and the Court while deciding
the question of court- fee should look into the allegations in the plaint
to see what is the substantive relief that is asked for.
9. The Supreme Court further in case of Suhrid Singh v. Randhir Singh
& Others reported in (2010) 12 SCC 112, has laid down that in suits
for declaratory decree with consequential relief, the court fee shall be
computed according to the amount at which the relief sought is valued
in the plaint. The Court has further held the proviso thereto makes it
clear that where the suit for declaratory decree with consequential
relief is with reference to any property, such valuation shall not be less
than the value of the property calculated in the manner provided for by
clause (v) of Section 7.
10. In the case in hand, the plaint allegation would reveal that the relief is
sought for declaration that the property is a joint property and further
prayer is made for injunction that the defendant be restrained to
interfere in the Schedule property. Reading of the plaint allegation
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therefore would reflect that the injunction which is being prayed for,
flows from the declaratory relief as would be evident from the plaint
allegation that independently the consequential relief could not have
survived without relief of declaration.
11. The relevant section governing the case would be Section 7 (iv) (c) of
Court-fees Act and Schedule-II of Article 17 of the Court-fees Act,
1870 as prevailing in State of Chhattisgarh.
12. For the purpose of discussion, Section 7 of the Court-fees Act is
reproduced herein below.
(A). “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 :
* * *
(iv) In suits -
* * *
(c) for a declaratory decree and consequential
relief. - to obtain a declaratory decree or order,
where consequential relief is prayed,
(d) for an injunction. – to obtain an injunction,
* * *
according to the amount at which the relief sought
is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount
at which he values the relief sought;
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(B). Article 17 of SCHEDULE-II reads as under :-
Number Proper fee
17. Plaint or Memorandum of
appeal in each of the following
suits:-
(i) x x x x
(ii) x x x x
(iii) to detain a declaratory decree
where no consequential relief is
prayed;
(iv) x x x x
(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 by the Act.
When presented to the
Court of Civil Judge Class-II
When presented to the
Court of Civil Judge Class-I
When presented to the
Court of Additional District
Judge or District Judge
One hundred rupees
Two hundred rupees
Five hundred rupees
13. The Supreme Court way back in 1958 has held the value for the
purpose of jurisdiction to be decided by reading of Section 7(iv) of the
Court-fees Act along with Section 8 of the Suits Valuation Act. Section
8 of the Suits Valuation Act provides that where in any suits other than
those referred to in Court-fees Act, Section 7, paras. 5, 6 and 9 and
para 10, Clause (d), court-fees are payable and ad valorem under the
Act, the value determinable for the computation of court-fees and the
value for the purposes of jurisdiction shall be the same. In other words,
so far as suits falling under Section 7, sub-section (iv) of the Court-fees
Act are concerned, Section 8 of the Suits Valuation Act provides that
the value as determinable for the computation of court-fees and the
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value for the purposes of jurisdiction shall be the same. There can be
little doubt that the effect of the provisions of Section 8 is to make the
value for the purpose of jurisdiction dependent upon the value as
determinable for computation of court-fees and that is natural enough.
The computation of court-fees in suits falling under Section 7(iv) of the
Court-fees Act depends upon the valuation that the plaintiff makes in
respect of his claim.
14. The result is that the amount at which the plaintiff has valued the relief
sought for, for the purpose of court fees can determine the value for
the jurisdiction in the suit and not vice versa. The M.P. High Court in
case of Dharmraj Singh v. Vaidya Nath Prasad Khare & Others,
reported in 2002(1) M.P.H.T. 301, the Court at para 5 of its judgment
observed as under :
“5. For claiming the relief of permanent injunction the
Court fee payable is as per Section 7(iv)(d) of the Act.
The plaintiff is at liberty to put his own valuation on
such a relief, of course, it should not be wholly
unreasonable or arbitrary. This has been clarified in
Raj Kaur v. Kinetic Gallary 2000(2) MPLJ 72 that in
cases falling within paragraph (iv) of Section 7, the
plaintiff is entitled to put his own valuation. The Court
normally accepts the valuation put by the plaintiff if it is
not too low or high.
15. The plaint averment would show that the plaintiff has stated that
they are in possession of the land and declaration has been sought,
in such situation he is required to pay fixed Court fees as per Article
17, Schedule-II of the Court Fees Act on the said declaration
claimed by him. As would be evident a fixed court fee of Rs.500/- is
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prescribed under Schedule-II, Article 17 of the Court Fees Act in
Chhattisgarh and in such case on payment of fixed Court fees, the
jurisdiction that would be of Additional District Judge of District
Judge. The plaint averment also shows that the plaintiff has valued
the suit for the purpose of injunction U/s. 7 (iv) (d) of the Act and
pay the Court fees of Rs.500/-. The market value of the property is
not the criterion for valuation under any of the clauses of Section 7
(iv) of the Act. It is the value of the relief sought that is the basis.
The plaintiff has valued the suit for relief for declaration and a fixed
court fee of Rs.500/- is paid according to Schedule-II of Article 17.
In a case where fixed court fee is payable as per Schedule-II of the
Article 17 of the Court Fees Act for relief of declaration, the question
is what should be the value for the purpose of pecuniary jurisdiction.
Section 8 of the Suits Valuation Act is inapplicable in this respect of
the Court fee is not payable advalorem but it is fixed Court fee
which is payable. In a suit in which fixed Court fee is payable as per
Article 17 Schedule-II of the Court Fees Act, the market value of the
immovable property, is normally the criterion for purposes of the
pecuniary jurisdiction.
16. In the present case, the copy of the plaint reveals that market value
has been shown to Rs.12,00,000/- so far as relief for declaration is
concerned, it can not be said to be improper. The plaintiff is not
required to pay the Court fees on the valuation for the purpose of
pecuniary jurisdiction. In the present case, the plaintiff has paid the
fixed Court fees of Rs.500/-, it would reveal from the plaint that after
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for relief declaration, the plaintiff has paid the fixed Court fees of
Rs.500/- as per Schedule-II Article 17 of the Court Fee Act.
17. On an application filed under Order 7 Rule 10 by the defendants, it
was averred that the proper valuation has not been made and
consequently on the submission made the learned Trial Court has
directed for return of the plaint and to present before the Court of
Civil Judge calculating the jurisdiction to 20 times of the land
revenue. The learned Court below further misdirected itself by
resorting to Section 7 Clause (v) (a) of the Court Fees Act, 1870
which prescribed the method of computing the Court fees in
respect of the land assessed to the land revenue. The Court failed
to take into notice that Clause -(v) of Section 7 of the Court Fee
Act, will be applicable, wherein possession of the land is claimed
and said land is assessed to the land revenue.
18. Here the plaint averment would show that the possession of the
land has not been claimed. Therefore, such method of calculating
the Court fees on the basis of the land revenue is completely
misreading of Section 7 (v) (a) of the Court Fees Act.
19. In view of the forgoing discussion, it is observed that the plaintiff is
free to value his suit for the purpose of pecuniary jurisdiction and so
far the claim of declaration is concerned. When fixed Court fees is
paid according to the Schedule-II, Article 17 of the Court-fees Act,
on payment of fixed Court fee as subject matter was triable by the
Court of Additional District Judge, the plaint could not have been
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returned in the manner adopted by the learned Trial Court.
Consequently, the order dated 11.02.2014 is set-aside.
20. The parties are directed to appear before the Court of Additional
District Judge, Mungeli for further hearing of the suit on 26th June,
2015.
21. In a result, the appeal is allowed. No order as to costs.
JUDGE