K. Doraisami Chettiar and Another vs Tirupattur Municipality

Swamikkannu, J.—In both the revision petitions an interesting point has been raised by the Plaintiff contending that the scope of Section 25(d) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 had not been properly taken into consideration for arriving at a decision by both the Courts below. It is the judgment in Civil Miscellaneous Appeal Nos. 24 and 25 of 1979 of the lower appellate Court, which is the subject-matter of the present revision petitions. The trial Court dealt with the question whether the Plaintiff should pay the court-fee on the value of tax payable by him or on the notional value. Relying on a decision of the Andhra Pradesh High Court in The Andhra Pradesh State Electricity Board, Hyderabad Vs. K. Ramachandra Reddy, the trial Court held that the Plaintiff, in each case, should pay court-fee on a sum of Rs. 9,592,86 P. in each one of the two suits. Consequently, the trial Court found that the relief sought by the Plaintiff in each case, being valued at the amount of tax payable by the Plaintiff, went beyond the pecuniary jurisdiction of the trial Court and hence it returned the plaint in each for presentation before the proper forum. The said finding has been confirmed by the lower appellate Court in Civil Miscellaneous Appeal Nos. 24 and 25 of 1979, the judgment in which has been canvassed by the Plaintiff in the present revision petitions. The grievance of the revision Petitioner is that both the Courts below have, in unison, held that the revision Petitioner-Plaintiff is not entitled to value the suit as per Section 25(d) of the Court-Fees Act. Civil Revision Petition No. 2129 of 1980 relates to the judgment of the lower appellate Court is Civil Miscellaneous Appeal No. 24 of 1979, while Civil Revision Petition No. 2130 of 1980 is preferred against the judgment in Civil Miscellaneous Appeal No. 25 of 1979. In both the revision petitions, the point raised before me is identical, viz., that both the Courts below went wrong in that, they have not given the benefit of the provision of Section 25(d) of the Act to the revision Petitioner-Plaintiff. According to the revision Petitioner, the Court below have not taken into consideration that the Plaintiff is entitled to state his notional value and pay ad valorem Court-fee thereon not less than Rs. 30 calculated on Rs. 400 u/s 25(d) of the Act, when the relief claimed is only a declaration of the assessment and taxation of the suit lands as illegal and void and a consequential injunction to restrain the Respondent-Municipality from taking coercive steps to enforce the assessment and the consequent demand of tax. Section 25(d) of the Act states that unlike the categories of cases dealt with under Clauses (a), (b) and (c) of Section 25, in case where the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on Rs. 400 whichever is higher. Clause (d) of Section 25 of the Act, at the first blush, would show that the said clause provides for other suits with a prayer for bare declaratory decrees or for declaratory decrees with consequential relief''s, not falling under any of the previous clauses, namely clauses a, b and c. This clause, namely Clause (d) applies even where the declaration relates to immovable property if the suit is for a bare declaratory decree, Clause (b) applying only where injunctions also asked for. A suit for injunction cannot be considered as one for declaration and injunction within the meaning of Section 25 and falls only u/s 26. To this effect the decision in Abdul Gafoor v. Lakshmi (1966) 2 A.W.R. 106 has been rendered. The proviso to Section 42 of the Specific Relief Act (now Section 34) prohibits the grant of a declaration where the Plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Thus, where the Defendant is in possession of the property, the Plaintiff cannot merely ask for declaration that he is entitled to the property. He must also sue for possession. An injunction is only a discretionary relief and not the appropriate further relief to be asked for where the Plaintiff is out of possession. (vide: Rathnasabapathy Pillai v. Ramasami Aiyar ILR (1910) Mad. 452.

In Nemichand v. Edward Mills Co. Ltd. AIR 1952 S.C. 674 it was held that where the declaration asked for would have the effect of cancelling a document or setting aside an attachment or redeeming a property from a simple mortgage, the substance of the suit is regarded as one for cancellation or for setting aside the attachment or for redemption as the case may be. It was held in Tikait Thakur Narayan singh v. Nawab Saiyid Dilar Ali Khan, ILR (1924) Pat. 915 that where the Plaintiff has framed his suit as one for a bare declaration when he sought to have asked for a further relief also, the Court cannot insist on the Plaintiff amending his plaint by asking for that relief and paying court-fees thereon and that the Plaintiff in such a case, would run the risk of having his suit dismissed.

In H.H. Sri Mahant v. State of Andhra Pradesh, (1962) 1 A.W.R. 310 it was held that a suit for cancellation of a notification notifying a certain village as easementary estate is, in substance, one for declaration that the notification is illegal, falling under Clause (d) of Section 25 and that the cancellation of the notification is merely ancillary to the relief of declaration. In K. Sundaramoorthy Mudaliar Vs. Manickammal and Another, it was held that where the purchaser of a property files a suit for a declaration that an equitable mortgage created by his vendor was not binding on him, he is entitled to pay court-fee u/s 25(d)and is not liable to pay court fee u/s 40 The decision in Nachimuthu Gounder Vs. Avalnaickenpatti Co-operative Society and Another, and Kucha Chellan Panchayat and Another Vs. Nandu Mal Mool Chand and Others, are the other decisions relied on by Mr. R.M. Krishnaraju, learned Counsel for the revision Petitioner in support of his contention that when a Municipality assess a property and comes to the conclusion that the property value is so much and, on that basis, assesses property to tax and if that decision of the revenue authorities of the Municipality holds certain view and thereafter the said view is questioned before the appellate authority, namely the Taxation Appeals Committee and in turn, the matter comes to Court, the Court-fee that is payable on the disputed value of the property or the questioning of the very assessment, or property tax, made, can only be under the provisions of Section 25(d) of the Act, and not on the basis of the value of the assessment, as has been held in the two instant cases by the trial Court as well as by the lower appellate Court, In support of this contention, Mr. R M. Krishnaraju states that it is the notional value that has to be adopted for valuing the suit as per Section 25(d) of the Act, which alone ought to have been resorted to and, on the other hand, the valuation made by both the Courts below holding that as per the decision in The Andhra Pradesh State Electricity Board, Hyderabad Vs. K. Ramachandra Reddy, the Court-fee should be directed to be paid, is not correct. On the point whether the Plaintiff, in each case, should pay the court-fee on the value of the tax payable or on the notional value, it was taken into consideration by the Courts below that the suit was filed to avoid the assessment of the property to Rs. 9,592-86 P. in each case, and it upheld the contention of the Respondent-Municipally. It was argued even before the Courts below that when the taxation is questioned as illegal and arbitrary it is only the notional value of the relief that is to be adopted u/s 25 (d) which ought to have been borne in mind and court-fee on that value alone is the scheduled court-fee that is to be paid for the relief in cases of this nature. The lower appellate Court has observed in its judgment as follows:

The learned Counsel for the Respondent(Municipality) cited The Andhra Pradesh State Electricity Board, Hyderabad Vs. K. Ramachandra Reddy, . That case was for declaration and injunction. In that case it was held that the test to be applied, by the Court in valuing the relief either u/s 24(d) or u/s 26(c) of the Court Fees Act, is to find out the advantage which is sought to be gained by the Plaintiff or the loss sought to be avoided. Essentially, the question of court-fee has to be considered only on the allegations made in the plaint. In the case cited, the Plaintiff filed the suit for avoidance of consumption charges and in the other suits (sic) for declaration that demand notices issued to them were illegal and for injunction. They paid notional court-fees in all the suits. It was held that on the first suit which was filed for avoidance of consumption charges the court-fee should be paid. Therefore, it is very clear that the Plaintiff in the present suits should pay court-fee on a sum of Rs. 9,592-86 P. The lower court correctly ordered payment of Court-fee on the amount sought to be avoided.

In the instant cases, the suit, Original Suit No. 77 of 1978 was instituted for a declaration and injunction. The allegations in the plaint in that suit, for purpose of determining the court-fee can be indicated briefly. According to the Plaintiff, the two items of properties, namely lands in T. S. Nos. 338/1A and 34l/1A belong to the Plaintiff absolutely and are in her possession and enjoyment. She formed a lay-out of the said lands, forming them into 75 plots and offered them for sale to intending purchasers. The Government of Tamil Nadu proposed to acquire T. S. No. 338/1A for purposes of construction of houses thereon by the Tamil Nadu Housing Board and acquisition proceedings were initiated. Due to the said proceedings, the Plaintiff was not able to sell even a single plot though the layout had been formed far earlier. While, so, the Defendant Municipality assessed each one of the 75 plots to property-tax on an enormous basis of the value of Rs. 4,000 to Rs. 6,000 per plot. The Defendant had levied property tax on the land on the aforesaid wrong basis at the rate of Rs. 2 per squire foot. The Defendant levied a consolidated property tax of Rs. 3,836-04 P. for each of the years 1975-76 and 1976-77 and Rs. 1,918-02 P. for the first half year of 1977-78 and raised demands therefore. The tax for the aforesaid periods comes to Rs. 9,590-10 P. which is much more than the value of the land itself. Therefore, the Plaintiff preferred a revision to the Defendant Municipality contending that the levy of Rs. 2 per square foot was very exorbitant, but to no avail. The Plaintiff also preferred an appeal to the Special Officer of the Defendant which also shared the same fate. The Defendant then prosecuted the Plaintiff for non-payment of the consolidated amount of tax. levied, viz. Rs. 9,592-86 P. before the Judicial Sub-Magistrate, Tiruppattur. The Plaintiff, who is practically uneducated, is not well versed in proceedings before Courts. She was alarmed by the receipt of summons from the criminal Court. Taking advantage of the illiteracy of the Plaintiff the Defendant had taken from her a letter, the contents of which she was not aware of, since she signed the same to the discretion of the Defendant. Later, she came to know that the Defendant had taken her signature in a statement to the effect that she would pay the taxes on or before 15th January 1978 and obtain receipts therefor. She had to sign the letter on account of the threat of prosecution, at the same time, not knowing the contents of the operative effect thereof. Later, again, the Defendant issued a notice to the Plaintiff calling upon her to pay the tax of Rs. 8,098-37 P. within a week of the receipt of the said notice, failing which it had been stated therein that coercive steps would be taken against her for recovery of the same. The assessment, and taxation on that basis, of the land by the Defendant Municipality are illegal, void and unenforceable since the assessment was made by the Defendant without any representation whatsoever before the assessment and without any proper legal notice being issued to the Plaintiff. The assessment and taxation on that basis are arbitrary and excessive. The market value of the plots had not been ascertained or determined with reference to the rates prevailing in the neighbourhood. The Plaintiff filed the suit only for declaration that the taxation on the said land is illegal and for a permanent injunction restraining the Defendant from taking coercive steps for recovery of the tax so demanded by it. On the other hand, in the written statement filed by the Defendant Municipality, this particular aspect of the Plaintiff''s case regarding the illegality of the assessment and demand for tax had not been properly traversed by the Defendant. It has been only baldly stated that the Defendant made the assessment and raised the demand for the tax after due enquiry and took the necessary steps for the realisation of the tax. The Plaintiff ought to have paid court-fee on the total tax demanded and hence the value of the same being higher than the pecuniary jurisdiction of the trial Court, the suit cannot be entertained by the trial Court.

As many as six issues were framed by the trial Court on the above and other pleadings, issue 4 among them relating to the sufficiency of the court-fee paid by the Plaintiff. On that issue, the trial Court came to the conclusion, in Original Suit No. 77 of 1978, that the value of the suit on the contentions of the Defendant, exceeded the pecuniary jurisdiction of the Court and that in its opinion, the decision in K.M.S. Abdul Hasan Vs. The Tiruvarur Municipality, relied on by the Plaintiff has no relevancy to the question. In other words, the trial Court felt that the decision is not germane to the point at issue and the observations in that case did not, in any way, enlighten the trial Court regarding the question of valuation of the relief in the suit. In the result, the trail Court returned the plaint for being presented before the proper forum, since the sum total of the tax amounts for the three half-years in question came to Rs. 9,000 odd which took the suit out of the pecuniary jurisdiction of the trial Court. The trial Court, as a matter of fact, did not go into the question as to the sufficiency of the Court-fee paid, since it had found that the value of the arrears of tax as assessed was to be taken as the valuation of the relief sought in the suit. This mode of approach which was resorted to by the trial Court, which was also given the seal of approval by the lower appellate Court, is not quite germane to the provisions of Section 25(d) of the Court-Fees Act. This being the identical position with respect to the other suit, Original Suit No. 76 of 1978 as well, it is not necessary to refer to the contentions of parties in that Suit separately. It may be noted that the plaint in the other suit also has been returned by the trial Court for being presented to the proper forum, which order of the trial Court has been confirmed by the lower appellate Court.

Even in the revisions before me no authority has been placed by the learned Government Pleader so as to uphold the findings of the Courts below. It is significant to note that what has been filed is a suit by the Plaintiff for declaration that the assessment and taxation on that basis of the suit property is illegal and it is not a suit by the Defendant-Municipality for recovery of the tax arrears. It is only from that angle the valuation of the relief sought is to be determined, and it is only Section 25(d) of the Court Fees Act that will be applicable to the facts of the case in both the matters. This aspect has been completely lost sight of by both the Courts below.

For the above reasons, both the revision petitions are allowed and the matters in both the suns are remitted to the trial Court. As the suits are sufficiently old ones, the trial Court is directed to dispose them of within a month from the date of receipt of the records, from this Court. There will be no order as to costs in both the revision petitions.