Chetan vs Central Bank Of India & Ors

By this writ petition under Article 227 of the Constitution of India, the petitioner is challenging the order dated 10/08/2015 by which the learned trial

Court directed to pay the ad valorem Court fees.

Accordingly to the petitioner, a suit for declaration and permanent injunction has been filed valuing Rs.1,000/- and paid the Court fees therein. His

contention is that the suit has been filed for declaration and therefore as per II Schedule of Article 17 of Court Fee Act, 1870,proper court fee has

been paid and he is not required to pay ad valorem Court fees as per Section 7 (iv) (c) of the Court fee Act.

To support the aforesaid, he has drawn my attention to the decision of the Full Bench in the case of Sunil S/o Dev Kumar Radhelia & Ors. v.

Awadh Narayan & Ors. reported in 2010(4) M.P.L.J.431 and submitted that when the plaintiff makes an allegation that the instrument is void

and hence not binding on him and a declaration simpliciter is prayed, then he is not required to pay ad valorem Court fee. In such case, a fixed Court

fee under Article 17,Schedule â€" II of the Court Fees Act will be payable.

The Full Bench in Santoshchandra and Others vs. Smt. Gyansundarbai 1970 MPLJ 363 expressed the view thus :-

Thus, all these cases lay down the proposition that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is

necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability set aside, he is not entitled to a

declaration simpliciter. In such cases the question of court-fees has to be determined under Section 7(iv) (c) of the Act. But, however, where a

plaintiff is not a party to such a decree, agreement, instrument or liability, and he cannot be deemed to be a representative in interest of the person

who is bound by that decree, agreement, instrument or liability, he can sue for a declaration simpliciter, provided he is also in possession of the

property. The matter may be different if he is not in possession of the property. In that event, the proviso to Section 42 of the Specific Relief Act

might be a bar to the tenability of a suit framed for the relief of declaration simpliciter. But, that would be a different aspect. All the same, if the

plaintiff is not bound by that decree or agreement or liability and if he is not required to have it set aside, he can claim to pay court-fees under any of

the subclauses of Article 17, Schedule II of the Court-fees Act.

It has been held in the matter of Santoshchandra(supra) that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability

imposed, it is necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability set aside, he is not

entitled to a declaration simpliciter. The Full Bench further held that where a plaintiff is not a party to such a decree, agreement, instrument or liability

and he cannot be deemed to be a representative in interest of the person who is bound by that decree, agreement, instrument or liability, he can sue for

a declaration simpliciter, provided he is also in possession of the property. The matter may be different if he is not in possession of the property. In that

event, the proviso to section 42 of the specific relief act might be a bar to the tenability of a suit framed for the relief of declaration simpliciter.

Paragraphs 16 and 17 of the Plaint in question reads as under :-

16- U;k;'kqYd %&

;g fd] oknh lnj okn ?kks""k.kk ,oa LFkk;h fu""ks/kkKk gsrq izLrqr fd;k gSA blfy, oknh }kjk ?kks""k.kk gsrq fuf'pr U;k;'kqYd :i;s 1000@& ,o LFkk;h

fu""ks/kkKk gsrq Hkh U;k;k'kqYd :i;s 1000@& rFkk ?kks""k.kk {ks=kf/kdkj gsrq izfroknh Ø8 }kjk izfroknh Ø- 1 dh cSad esa :i;s 70]000@& lRrj yk[k

ds tekur ys[k dh ?kks""k.kk pkgh gS bl izdkj okn dk ewY;kadu fd;k x;k gSA rFkk ?kks""k.kk ,oa fu""ks/kkKk gsrq fuf'pr U;k;'kqYd :i;s 2000@& okn

izLrqr gSA

17- lgk;rk oknh lgk;rk pkgrk gS%&

v- ;g fd] izfroknh Ø- 1 }kjk izfroknh Ø- 4]5]6]7 o 9 dks okn pj.k 1 esa mYysf[kr vpy laifRr lkE;d ca/kd dj ,oa QsDVªh o IykV ds lkFk mRiknu ds

vlls esaV ckcn gkbiksfFkds'ku ca/kd dj _.k iznku fd;k Fkk izfroknh Ø- 8 dh tekur yh FkhA izfroknh Ø- 1 cSad }kjk izfroknh Ø- 4]5]6]7] o 9 dh lke;d

ca/kd py laifRr ,o ?kh cukus dh QsDVªh IykV dks gkbiksfFkds'ku crksj FksA bl laifRr dks izfroknh Ø- 1 cSad }kjk HkkjeqDr dj fn;k lkE;d ca/kd

esa l'a kks/ku ifjorZu fd;k x;k ijarq lkE;d ca/kd ifjorZu ds le; izfroknh Ø- 8 dh tekur dks fjfyo D;ksa ugh fd;k vkSj lpw uk i= Hkh ugh fn;k bl ckcn

dksbZ Hkh lwpuk i= ugh fn;k hkou Ø- 710@9 usg: uxj bankSj ds laca/k esa oknh }kjk ftyk U;k;ky; bankSj ds le{k foHkktu gsrq okn izLerqr fd;k gS

Hkou Ø- 710@9 usg: uxj bankSj iSr`d laifRr gSA lnj laifRr esa oknh dk gd gS ?kksf""kr fd;k tkos izfroknh Ø- 1 ,oa 4]5]6]7 o 9 dk d`R; ds fo/kku ds

foifjr gS ,slh ?kks""k.kk dh tkos rFkk izfroknh Ø- 4]5]6]7 o 9 dh HkkjeqDr laifRr dks ca/kd dj fuykeh dh tkosA

c- ;g fd] izfroknh Ø- 1 cSad }kjk izfroknh Ø- 4]5]6]7] o 9 dh lkE;d ca/kd laifRr gk;iksfFkd ca/kd dks HkkjeqDr fd;k gS ,slh fLFkfr esa izfroknh Ø-

8 dh tekur eqDr fd;k tkos lnj laifRr izfroknh Ø- 1 foØ; Lo;a u djs o vR; ls u djkosA ,slh Lfkk;h fu""ks/kkKk izfroknh Ø- 1 ls 3 ds fo:) tkjh dh tkosA

 l- ;g fd] okn dk lEiw.kZ O;; izfroknhx.k o izfroknh Ø- 4]5]6]7] o 8 ls fnyk;k tkosA

 n- ;g fd] mfpr lgk;rk ekuuh; U;k;ky; le>s oknh dks fnyk;s tkosA

The suit has been filed to obtain a declaratory decree and also prayed for decree of permanent injunction and valuation of the suit property is

Rs.70.00 lacs whereas, the court fees has been paid only on the valuation of Rs.1000/-. The Division Bench of this court in the case of Baldev Singh

V/s. Gopal Singh, reported as 1967, MPLJ 242, has held that the court fees is payable on the plaint as it was framed and not on the plaint as it ought

to have been framed. It is not the case of the plaintiff that he is in possession of the land and only relief for declaration was prayed. The suit is for a

declaration and permanent injunction and in view of the law laid down in the case of Subhash Chand Jain vs. The Chairman, M.P. Electricity Board

reported in 2000(4) MPHT 318, the learned trial court has rightly held that the plaintiff is liable to pay the advalorem court fee on the basis of valuation

of the property, made in the plaint.

Settled legal position seems to be that plaint has to be read as a whole. Allegations in the plaint including the substantive relief claimed must be the

basis for settling the court-fee payable by the plaintiff. Mere astuteness in drafting the plaint would not glaze the jurisdiction of court for looking at the

substance of the relief asked for. The nature of suit under Section 7(iv) is such where the Legislature could not lay down fixed standard thereby

leaving it to the plaintiff to mention it. But where he attempts to under-value the plaint and the reliefs, Court has to intervene.

9 In view of the aforesaid, the learned trial court has rightly allowed I.A. No.1 of 2015, filed by the defendant under Order 7 Rule 11 and directed the

plaintiff to amend the plaint and pay advalorem court fees under Section 7 (iv) (c) of the Court Fees Act, 1870. The writ petition filed by the petitioner

has no merit and is, accordingly, dismissed, without any orders as to costs.