Bawa Bir Singh vs Ali Niwaz Khan

Harbans Singh, J.—Facts leading to this revision petition may shortly be stated as follows: On 2nd May 1961 a suit was brought by Bawa Bir Singh against Ali Niwaz Khan who had migrated to Pakistan praying for a declaration to the effect that a sum of Rs. 52,000/- lying to the credit of the Defendant in the current account of the State Bank of India at Ferozepore exclusively belonged to the Plaintiff, that the Plaintiff was entitled to receive this amount from the State Bank, Ferozepore, and that the Defendant was not entitled to receive the same. The Plaintiff treated this suit as a purely declaratory one and in paragraph 9 of the plaint he mentioned that the court-fee payable was fixed, being Rs. 19.50 nP., and the value for purposes of jurisdiction was Rs. 52,000/-. The case proceeded ex parte but after the recording of the ex parte evidence the suit of the Plaintiff was dismissed by the trial Court. The Plaintiff filed an appeal in the Court of the Senior Subordinate judge on 14th February 1962. Apart from other grounds, it is necessary to refer to ground No. 11 which is to the following effect:

That on a declaratory suit court-fee payable is Rs. 19-50 nP. under Schedule II, Article 17, Court-fees Act. According to the Court-fees Act, the value for jurisdiction is Rs. 195/- and for this reason the appeal is cognisable by this Court and has been filed within limitation and this matter is purely legal. Mention in the plaint by the Plaintiff that value for purposes of jurisdiction is Rs. 52,000/- is not admitted to be correct because the suit in question is one for a declaration plus consequential relief.

In other words, in the appeal the Petitioner himself raised the point that the dispute originally brought was one for a declaration and consequential relief and, consequently, value for purposes of court-fee could be fixed by the Plaintiff at his own choice, and in a way he treated Rs. 195/- as the value for purposes of court-fee, although in the plaint he had not given any value for purposes of Court-fee and value for purposes of jurisdiction was given as Rs. 52,000/-. For administrative reason the appeal was transferred to the file of the District Judge and entrusted to the Second Additional Judge who held that proper value for purposes of jurisdiction was Rs. 52,000/- and consequently returned the memorandum of appeal for presentation to the Court of proper jurisdiction. Strangely enough, instead of presenting the appeal to the High Court, the Petitioner presented the appeal again to the Court of the Senior Subordinate Judge who, as was to be expected, in view of the finding of the Second Additional District Judge, returned the memorandum again. That memorandum has not been filed in this Court. On the other hand, the present revision has been filed challenging the finding of the Senior Subordinate Judge holding that it has no jurisdiction.

Learned Counsel for the Plaintiff-Petitioner urges that the suit as framed was one for a declaration and consequential relief and therefore properly fell u/s 7(iv)(c) of the Court-fees Act and was not a suit for a mere declaration falling under Article 17 of the Second Schedule to the Court-fees Act. In this respect he refers to two decisions of the Bombay High Court-- Bhimsangji Chhatrasangji Vs. Dolatsangi Hamirsangji, and Hafizulla Latiff Saha Vs. Wakf Committee, . In the first case a Bench of the Bombay High Court held that a suit in which the Plaintiff sought "a declaration that he was the owner of the Toda Giras Hak annuity of Rs. 500/. received by Bai Surajkuvar as her heir and as such entitled to recover the same" was a suit which fell u/s 7(iv)(c), and, as the value for purposes of court-fee was fixed at Rs. 500/-, the jurisdictional value was also treated to be the same. In Hafizulla Latiff Saha Vs. Wakf Committee, the head-note is as follows:

In order that a suit should fall within Section 7(iv)(c) the consequential relief prayed for by the Plaintiff need not necessarily be a relief other than a, declaratory relief. Hence, a suit for a declaration that certain darga and other properties belonging to the darga are not wakf within the meaning of the Mussalman Wakf Act of 1923 and hence are not liable to registration under the Bombay Amendment Act 18 (XVIII) of 1935, falls u/s 7, sub-clause (iv)(c) and not Schedule 2, Article 17 (iii) because the second declaration is not an independent declaration but merely one which is consequential upon the first.

No ruling to the contrary was cited. From the above it appears that if in a suit main declaration is sought and another declaration, which springs from the main declaration, is also sought, the second declaration would amount to a consequential relief. The declaration sought in the present case is similar to the one claimed by the Plaintiff in Bhimsangji Chhatrasangji Vs. Dolatsangi Hamirsangji, Thus it is clear that the suit did, in fact, fall u/s 7(iv)(c) and was wrongly valued for purposes of court-fee under Article 17, Schedule 2, Court-fees Act.

It is well settled'' that if in a suit properly falling u/s 7 (iv)(c) one value, is given for purposes of court-fee and another different value for purposes of jurisdiction, then it is the value for, purposes of court-fee which has also to be taken for purposes of jurisdiction and different value mentioned, for purposes of jurisdiction has to ho ignored. See Sukh Raj v. Kanhaya Lal 2 Pun Re 1915: AIR 1914 Lah 503, and Bansilal v. Bhikubai AIR 1948 Bom 8. In the present case, however, only one value is given, namely that for purposes of jurisdiction. No value is given for purposes of court-fee because the Plaintiff had treated the suit as one for a declaration for which only fixed court-fee was paid. In this respect, however, reference is made to a Full Bench decision of the Lahore High Court consisting of five Judges, Karam Ilahi v. Muhamad Bashir AIR 1949 Lah 116 (FB). The relevant portion of the head-note is as follows:

Even where the relief is originally stamped under Article 17 of Schedule II, Court-fees Act, without any value for purposes of court-fees having been stated u/s 7(iv)(c) of that Act, but the Court holds that the suit falls under the latter provision, the Court is bound to permit the Plaintiff to put for purposes of court-fees his own value on the relief and cannot compel him to adopt for such purposes the value stated by him in the plaint for purposes of jurisdiction.

This fully covers the present case and thus having come to the conclusion that the plaint actually falls u/s 7(iv)(c), the Plaintiff cannot be compelled to adopt the jurisdictional value as the value for purposes of court-fee and he has to be given the option to fix his own value. This in a way he has already done because, as detailed above, in the memorandum of appeal he has indicated this value to be" Rs. 195/- on which proper court-fee payable was Rs. 19.50 nP. which had already been paid by him.

This now brings, us to another question raised on behalf of the Respondent, namely, whether the amendment of Section 7(iv)(c) is applicable to the present case. According to this amendment, in a suit for a declaration with consequential relief value for purposes of court-fee can be fixed by the Plaintiff himself. So far there is no difficulty. There is a proviso added to the effect that in such a case the value fixed "shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section." Clause (v) of Section 7 deals only with the method of calculation of value in case the suit relates to land, gardens or houses and does not deal with a case of cash. Argument of the learned Counsel for the Petitioner is that this proviso applies only to suits relating to property of which method of calculation of value is given in clause (v) and not to other suits. Though it does look a bit strange that a suit seeking a declaration and consequential relief in respect of a house must necessarily be valued in accordance with the value of the property and if it relates to the same amount of cash the Plaintiff should be at liberty to fix the amount at any figure, vet the wording of the proviso leads to no other interpretation. The learned Counsel for the Respondent could not urge any argument to the contrary. In view of the above, therefore, this proviso, which has been brought in by the amendment, has no-application to the present'' case.

The result of the above discussion is that the suit in question fell u/s 7(iv)(c) of the Court-fees Act. It was originally wrongly treated as a suit for mere declaration. No value for purposes of court-fee was fixed. The Petitioner, being the Plaintiff, must be given an opportunity to fix such a value, and in fact he has already fixed that value at Rs. 195/- and he cannot be compelled to fix it at any higher value, and consequently the value for purposes of jurisdiction for the purpose of the suit as well as the appeal must be treated to be Rs. 195/- The appeal is, therefore, triable by the learned Senior Subordinate Judge and was rightly presented in the Court of the Senior Subordinate Judge. The orders of the learned Second Additional District Judge as well as the Senior Subordinate Judge are, therefore, set, aside. The Petitioner is directed to re-present the memorandum of appeal in the Court of the Senior Subordinate Judge within one month from today. There would be no order as to costs.

Parties will appear before that Court on the 26th August. 1963.