Comolata Dutta vs Ishwar Industries Ltd.

S.P. Bhargava, J.—Smt. Comolate Dutta widow of Late Shri Walter Dutta filed a suit claiming a declaration that the sale of the suit property in execution of the decree passed in Civil Suit No. 11-A of 1947 of the Court of the first Additional District Judge, Jabalpur, in favour of the Ishwari Industries Limited (defendant no. 1) or in favour of Rajendrana h Bhaskar (defendant no. 4) did not confer on the purchaser any right, title or interest in the suit property and as such, the purchaser was not entitled to take possession of the same in pursuance to the sale. The second relief sought in the plaint was for a decree for perpetual injunction restraining the defendants 1 and 4 from disturbing the possession of the plaintiff. She valued the claim for the declaratory relief at Rs. 20,000/- and paid Court-Fee of Rs 20/. She further valued the relief of injunction at Rs. 200/- and paid for this a Court-Fee of Rs. 20/-.

Defendant no. 4 in his written statement contended that the plaintiff''s suit in substance was one for setting aside the decree passed in Civil Suit No. 11-A of 1947 and, therefore, the plaintiff had to pay ad valorem Court-Fee on the aggregate amount of Rs. 20,200/-.

The trial Court framed issue no. 37 (a) and (b) covering the question of Court-Fee which was payable and by the finding recorded by it on 29-2-1960. it held that the plaintiff was liable to pay Court-Fee on at least Rs. 20,200/-. It held that after allowing deduction of the Court-Fee already paid, the plaintiff had to pay further Court-Fee of Rs. 1285/-10/-. The plaintiff failed to pay the Court-Fee within time which was allowed by the Court and, therefore, it rejected the plaint under Order VII rule 11 (b) of the CPC on 25-3-1960. The plaintiff (appellant) feeling aggrieved by the aforesaid order of rejection of the plaint has filed this appeal.

The contention advanced by Shri Y.P. Verma on behalf of the appellant is that as the plaintiff had stated in the plaint that she was in possession of the suit property she was entitled to claim the relief of d claration simplicitor and was only liable to pay fixed Court-Fee of Rs. 20/- on the declaratory relief. He has further urged that the relief of perpetual injunction sought in the plaint was an independent relief which could not be said to be consequential to the relief of declaration and the plaintiff was, therefore, entitled to Value the relief of injunction at her own choice. He urged that the suit, as framed, did not fall within the purview of Section 7(iv)(c) of the Court Fees Act and, therefore, the lower Court must be held to have crept into an error in holding that the plaintiff was liable to pay the balance Court-Fee of Rs. 1283/10 and further in rejecting the plaint because this Court-Fee was not paid.

To appreciate the controversy between the parties, it would be necessary to state a few facts. The deceased Shri Walter Dutta was admittedly a party to the aforesaid Civil Suit No. 11-A of 1947. He was the Managing Director of Metalon Paints Limited Niwar, Katni, (defendant no. 2). In his capacity of being the Managing Director, he had executed a mortgage of the suit property in favour of defendant no. 3. The suit property included lease hold rights in certain lands, bungalows, factory, buildings, two wells and a garden details whereof are given in paragraph 2 of the plaint. Shri Walter Dutta had further personally guaranted the payment of the mortgage amount to the third defendant. In the suit, preliminary decree was passed on 5-10-1948 for sale of the mortgage property and final decree was later on passed on 8-10-1949. It may further be noted that the plaintiff is claiming as the successor-in-title of the late Walter Dutta and in no other capacity.

According to Section 7 (iv) (c) of the Court Fees Act, in suits to obtain a declaratory decree or order where consequential relief is prayed, court-fees is required to be paid according to the amount at which the relief sought is valued in the plaint or memo of appeal. Where the plaintiff claims relief to which he is not entitled until some decree or alienation of some property has been avoided, the suit fails u/s 7 (iv) (c) of the Court Fees Act even though the relief of the decree being set aside or alienation of property being avoided has not been expressly asked for the plaint, If it is incumbent on the plaintiff to ask for a decree to be set aside, then such a prayer is consequential and fails within Section 7 (iv) (c) of the Act aforesaid (See Maung Shein vs. Ma lon Tou, AIR 1931 Rang 319), It is also settled law that a party to the decree must sue to set aside the decree and if instead he merely seeks a declaration that the decree is not binding on him, it is in substance one to set aside the decree. (See: Kishanlal vs. Haravandas, ILR 1946 Nag 578). It was actually held by this Court in Girro vs. Shrikrishna, ILR 1956 Nag. 486 that even where the plaintiff sought a declaration that the previous decree is void as being vitiated by fraud, the relief claimed is really one to set aside the decree. It is further clear that where the plaintiff, though not a party to the previous decree, yet was bound by it as being passed against his predecessor-in-title, a prayer for setting aside the decree is a proper relief. It is only when the plaintiff was neither a party to a previous decree nor was bound by it that he is not required to set aside a decree and a declaration that the decree is not binding on him or that it does not affect his interest would be sufficient.

When these tests are applied to the facts of the present case, it becomes clear that the plaintiff was bound by the previous decree because she has claimed the relief in the present suit only through her late husband, Wal-Dutta, who was a party to the Civil Suit No. 11-A of 1947, above referred to, We, thus agree with the learned Additional District Judge that in challenging the sale under the decree, the plaintiff has virtually tried to set aside the decree.

It is also settled law that in suits valued u/s 7 (iv) (c) of the Court Fees Act, the plaintiff shall initially value the relief which he claims. If the valuation is arbitrary or unreasonable, the Court may revise it. The only difference between Section 7 (iv) (c) of the Act aforesaid and Article 1 of Schedule 1 thereof is that though under both, court-fee is required to be paid on ad valorem basis, yet the valuation u/s 7 (iv) (c) is the amount at which the relief sought is valued in the plaint or memo of appeal but under Article 1 of Schedule 1 a valarem court-fee has to be paid on the amount of value of the subject-matter in dispute, To put it differently, in the former case, the plaintiff can put his own valuation on the relief sought by him whereas in the latter, the value or its-subject matter must necessarily mean the market value. (See Mt. Rupia vs. Bhatn Mahton AIR 1944 Patna 17 In the) instant case, the plaintiff put the valuation of Rs. 20,000 on the declaratory relief for purpose of jurisdiction and she separately valued the relief of jurisdiction at Rs. 200. No doubt, the plaintiff could put a lump sum valuation for both declaration and injunction and if she had done so, she would have been required to pay court-fee on that lump sum valuation (See In re Kalipada Mukharjee, AIR 1930 Cal. 686 and Surravva vs. Province of Madras AIR 1949 Mad. 78. But, having once chosen to put valuation at Rs. 20,000 for the declaratory relief and Rs. 200 for the other relief and having never made any attempt sub equently to amend it, in our opinion, the plaintiff cannot now urge that the total value of her claim was not Rs. 20,200 for purposes of payment of Court fee. In Shri Kshian Das vs. Sat Navain AIR 1932 Lah. it was held that when the plaintiff in a suit for declaration and injunction chooses to value the relief at a certain figure for purposes of jurisdiction, he is bound to pay court fee on the same amount. The present suit in no sense can be construed to be a suit for mere declaration because the relief of injunction flows naturally and essentially from the relief of declaration. It is also obvious that the relief of declaration can only be given if the decree is set aside but not when the decree stands.

The learned Additional District Judge has referred to various authorities in his order, dated 29-2-1962, and, in our opinion, it is not necessary to enter into a discussion of all those decisions. We agree with the conclusion reached by the learned Judge and held that there was deficit of Rs. 1285-10 in the court-fee paid by the plaintiff. As the said court-fee was not paid within the time allowed by the Court, the Lower Court was further right in rejecting the plaint under Order VII rule 11 of the Code of Civil Procedure.

The result is that the appeal fails and is dismissed but we do not make any order as to costs.