Jaidev Sethi vs Maharaj Krishan Sethi

S.N. Jha, C.J.—This civil revision by the plaintiff is directed against the order of the second Additional District Judge, Jammu dated 29th

May, 2004 in civil suit No. 46 of 2001 directing him to pay deficit court-fee on the amount of Rs. 1,47,771,71 as directed by order dated 26th

September, 2003. By the said order similar direction had been issued to the plaintiff to pay deficit court-fee.

The petitioner has paid a fixed court-fee of Rs. 25 which according to him is sufficient in view of the relief sought by him. The question for

consideration is whether he is liable to pay ad valorem court-fee on the amount or the court-fee of Rs. 25 -- paid at fixed court-fee is sufficient ?

Before referring to the case of the plaintiff which basically would determine his liability to pay ad valorem court-fee or fixed court fee, it would

be appropriate to refer to the relevant provisions of the Jammu and Kashmir Court-fees Act, 1977 (1920 AD):

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:--

(i) to (iii) ...

(iv) In suits --

(c) for a declaratory decree and consequential relief to obtain a declaratory decree or order where consequential relief is prayed 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.

… … …

The scale of ad valorem court-fee is mentioned in Schedule I whereas Schedule II contains the scale of the fixed court-fee. According to the

plaintiff, the court-fee payable with respect to the relief in question falls under Article 17(iii) of Schedule II which runs as under:

Plaint or memorandum of appeal in each of the following suits:--

(iii) to obtain a declaratory decree where no consequential relief is prayed.

On a plain reading it would appear that where the plaintiff seeks a declaratory decree and also prays for consequential relief, he is required to

pay ad valorem court-fee on the amount at which the relief is valued; and where he seeks a declaratory decree without praying for consequential

relief, he is required to pay the fixed court-fee. Thus there should be no difficulty or doubt in applying the relevant provision and no dispute should

normally arise. However, as the dispute is somewhat fiscal in nature and depending on the outcome of the dispute, the plaintiff may have to pay a

much bigger amount as court-fee if Section 7(iv)(c) applicable, more often than not, suits have been framed in a manner that the plaintiff is able to

avoid court-fee as if the suit falls within the ambit of Article 17(iii) of Schedule II giving rise to the question as involved in this suit. The question as

to whether Section 7(iv)(c) or Article 17 (iii) applies in a particular case has naturally been subject of perennial dispute and the case law is replete

with decisions on the point. 1 propose to refer to some of them as guidelines for deciding the dispute involved in this revision.

In Mt. Rupia v. Bhatu Mahton AIR 1944 Patna 17, a Full Bench of the Patna High Court held that in considering what court-fee is payable on a

plaint, caution must be observed so as not to import into the plaint which it does not really contain, either actually or by necessary implication. In

construing the plaint the Court must, take it as it is, not as it may think it ought to have been. The relief not asked for cannot be imported so as to

charge court-fee thereon. Where a plaintiff who is entitled to consequential relief frames his suit as one for a declaration only, the Court is not

entitled to insist upon his paying for a consequential relief and paying the court-fee proper for such a suit. The Court, however, added a caveat as

under:

But the dexterity of the person drawing up the pleadings avoiding the use of certain words in the plaint, which would make the relief a

consequential one, should not determine the amount of court-fee payable on the plaint. The court-fee is dependent not on the form of the

pleadings, but on the real substance of the relief claimed.... A suit though cast in the form of a declaratory relief only, but in substance aiming at

setting aside a deed formally executed and registered in accordance with law is governed by Section 7(iv)(c) and not by Schedule II Article 17(iii).

In Kedar Nath Gupta and Another Vs. Dulhin Moti Kuar and Others, , the Court held as under:

In deciding upon the question of court-fees, the Court should not be guided merely by the form of the plaint or the words in which the prayer is

couched. The entire plaint has to be looked into, and the real purpose of the suit has to be ascertained.... Where in a suit the plaintiff merely seeks

a declaration, the Court has to consider whether a consequential relief is implicit in the declaration, or, in other words, whether the effect of making

the declaration will be that the plaintiff will get a consequential relief also. If that is so, the provision applicable must necessarily be Section 7(iv)(c)

of the Court-fees Act.... The demarcating line between a suit falling u/s 7(iv)(c) and the one falling under Article 17(iii) of Schedule II of the Court-

fees Act, 1870, is rather thin but the test may be stated thus:-- If the necessary effect of a declaration granted in accordance with the prayer made

in a suit is to grant a consequential relief also, for instance, the setting aside of a previous decree, ad valorem court-fee is realisable. If, on the other

hand, a declaration made as prayed may or may not have that effect, the Court cannot insist that the plaintiff should pray for the consequential relief

so that court-fee may be charged from him on that, basis....

In Mt. Rup Rani v. Bithal Das AIR 1938 Oudh 1, a Full Bench of the Oudh Chief Court observed as under:

No doubt the Court-fees Act, being a fiscal enactment, its provisions should be strictly construed; but they should not be so construed as to furnish

a chance of escape and a means of evasion. Language is meant to be used as a vehicle for expression of one's thoughts. Where, however, it is

abused for the purpose of concealing the real thoughts, it is the duty of a Court of justice to look to the substance of the claim to be gathered from

the whole plaint, and not to allow itself to be deceived by the language of the relief vised for evading the payment of proper Court-fee by

concealing the real purpose of the suit.

In Zeb-ul-Nisa v. Din Mohammad AIR 1941 Lah 97 a Full Bench of Lahore High Court observing that true criterion for determining the

question of court-fee in cases of this description is the substance of the relief claimed as disclosed by the plaint, taken as a whole and not merely

the form in which the relief claimed is expressed, dwelt upon the meaning of ""consequential relief in Section 7(iv)(c). The observations in this regard

may usefully be noticed:

The expression 'consequential relief in Article 7(iv)(c) means some relief, which would follow directly from the declaration given, the valuation of

which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed

independently of the declaration as a 'consequential relief. Consequently, if the relief claimed in any case is found in reality to be tantamount to a

substantial relief and not a mere ""consequential relief in the above sense the plaintiff must pay court-fee on the substantial relief.

It would thus appear that the frame of the suit including recitals of the plaint and the relief sought are not conclusive of its nature. A deft lawyers

may frame the suit seeking a simple declaration but in substance also seeking a ""consequential relief"". In another case the suit may be framed in a

manner that the grant of consequential relief is implicit in the declaration sought for. The plaint has, therefore, to be read as a whole and its true

substance and import has to be ascertained. It is only then that the applicability of Section 7(iv)(c) or Article 17(iii) can be determined.

Having prefaced this judgment with the relevant provisions of Court-fees Act and the precedents on the point, I would now refer to the

relevant pleadings in the plaint.

The suit has been filed by the plaintiff-petitioner for possession of land with house standing thereon at Akhnoor Road, Jammu, and for

declaration that he is entitled to receive the sum of Rs. 1,47,771.71 lying in different banks. He valued the relief of possession at Rs. 5,00,000 and

paid ad valorem court-fee of Rs. 14,600. On the second belief he paid fixed court-fee of Rs. 25. The dispute in this revision is confined to the

second relief i.e. declaration that, the plaintiff is entitled to receive the amount, of Rs. 1,47,771.71 lying in different bank accounts/fixed deposits.

The case of the petitioner is that his father Baldev Raj Sethi was owner of the house as his sell, acquired property. In addition to the house

properly, he had also kept cash in different accounts and fixed deposits in different banks, as detailed in the plaint, totalling Rs. 1,47,771.71. On

4th May, 1987 he executed a Will in favour of his wife Smt. Shyama Rani Sethi and appointed her the sole executor. After his death the house as

well as the cash and the fixed deposits was to devolve on her. Baldev Raj Sethi, however, executed another will on 26th May, 1987 as per which

he bequeathed his entire property -- moveable as well as Immovable -- to the plaintiff, stating in the Will that he was dissatisfied with the behaviour

of his wife and the other son the defendant herein. The plaintiff's father died on 1st February, 1989. The mother, Shyarna Rani Sethi, also died

soon after on 16th April, 1989. During lifetime of Shyanra Rani Sethi the plaintiff applied for grant of probate of the Will dated 26th May, 1987 in

the Court of District Judge, Jammu. The Court refused to grant probate on the ground that the plaintiff had failed to prove execution of the Will.

Against the said decision he filed appeal in this Court. During pendency he came to learn about the previous Will dated 4th May, 1987 and he

accordingly withdrew the appeal along with application for grant of probate. Allowing the prayer vide order dated 20th October, 2000, this Court

observed that the findings recorded by the District Judge while refusing to grant probate will not be binding on the parties in any subsequent

proceeding. The petitioner submits that the probate proceedings are summary in nature and even where probate is granted the applicants have to

file suit for possession of the property. According to the plaintiff he is the exclusive owner of the house property as well as the cash in different

accounts/fixed deposits lying in different banks in both the Wills. After the death of father, the defendant who is his own brother, came to attend his

last rites and occupied portion of the house. The plaintiff asked him to vacate the house but he refused to do so. Me also disputed the genuineness

of the Will and in the circumstances the plaintiff filed the suit seeking reliefs as mentioned above.

In the above backdrop of facts, the true nature of the second relief, which is subject-matter of dispute, is to be seen. As seen above, if the

Court were to go by the wording of the relief, being declaratory in nature, Article 17(iii) would appear to cover the case, ft is, however, apparent

that what the plaintiff is really interested in is realisation of the amount of Rs, 1,47,771.71 from different banks. The defendant is none else than his

real brother i.e. son of Baldev Raj Sethi and in the ordinary course entitled to a share in the estate left by him. As seen above, the story of Will

stands rejected. There being a dispute nonetheless, the petitioner was required to also seek the consequential relief. Though the banks have not

been impleaded as party, it is apparent that in case the suit is decreed and it is held that the plaintiff is entitled to receive the amount from the banks,

the banks would be hardly in a position to resist payment of the amount. As seen above, where the plaintiff merely seeks declaration but the

consequential relief is implicit in the declaration or where the effect of making declaration that the plaintiff also gets the consequential relief, the

provision applicable would be Section 7(iv)(c) of the Court-fees Act. Thus the necessary effect of declaration made in accordance with the prayer

in the suit is to grant the consequential relief also and ad valorem court-fee would be payable. As held by the Patna High Court and the Lahore

High Court, consequential relief u/s 7(iv)(c) means some relief which would follow directly from the declaration given.

In the above premises, I am satisfied that in the garb of declaration the plaintiff really seeks the relief of realisation of the money lying in different

bank accounts/fixed deposits. As the realisation of the money would be implicit in the grant of declaration, the plaintiff has no option but to pay ad

valorem court-fee on the amount in accordance with Section 7(iv)(c) of the Court-fees Act. Accordingly, I find no error in the impugned order of

the court below.

In the result, the revision is dismissed.