Kamla Kant Jha vs Muktinath Jha and Others

Fazl Ali, J.—This is an appeal by the plaintiff, who had brought a suit for a declaration that a certain mortgage decree was null and void. The mortgage-decree was obtained in a suit brought by the defendants against the father of the plaintiff as well as the plaintiff, the plaintiff being represented in that suit through his father as guardian. The allegation in the present suit is that the processes in the earlier suit had been surreptitiously served, and no proper guardian ad litem had been appointed in the case, and defendant 1st party had fraudulently obtained an ex parte decree.

The suit was dismissed by the Munsif, who tried it. The Munsif not only held that the allegations in the suit had not been established, but also observed while discussing the question of court-fee under Issue No. 4 that:

In view of Section 42, Specific Relief Act, the suit cannot be filed merely as a declaratory suit; the J Court cannot make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so.

The plaintiff thereafter filed an appeal.

Before the appellate Court a question as to court fee arose, and the appellant was asked to pay further court-fee. On 23rd September the appellant filed a petition, praying that he may be permitted to prosecute the appeal as a pauper, as he was unable to pay the additional court-fee demanded from him. This application to be allowed to appeal in forma pauperis was afterwards disallowed and after hearing the parties the Court found that the additional court-fee had to be paid. This court-fee was not paid, and so the appeal was ultimately dismissed. The appellant has now preferred a second appeal.

The point which is urged on behalf of the appellant is that the court-fee payable on a plaint must depend upon the allegations contained in the plaint and upon the reliefs asked for therein. Therefore, if a party chooses to ask only for a declaratory relief, he cannot be forced to pay a court-fee which is payable for a suit involving a declaration as well as a consequential relief. Several authorities have been cited to support this proposition, and it may be conceded for the purpose of this case that if the party chooses to take the risk of having his suit dismissed for want of a prayer for a consequential relief, u/s 42, Specific Relief Act, the Court cannot compel him to pay an additional court-fee. But then that does not solve the difficulty. On the facts of the case, I am certain that the plaintiff''s suit must fail u/s 42, Specific Relief Act, for want of his asking for a consequential relief. If a decree '' is null and void, then no prayer for setting aside the decree is necessary, but when on the facts stated by the party a decree must be set aside before any useful Relief can be granted to him, Section 42, Specific Relief Act, comes in and the suit is bound, to fail. In my opinion, this is a suit of that description. The allegation is that the ex parte decree was obtained by suppressing the processes of the Court and, therefore, unless the decree is set aside no adequate relief can be granted to the plaintiff. The suit, in my opinion, was badly framed u/s 42, Specific Relief Act, and, therefore, in any event the suit had to be dismissed. It is contended that if this view had been taken by the learned Judge the plaintiff would have been given an opportunity to amend the plaint and file an additional court-fee. To this, however, the reply is obvious. The plaintiff is not entitled as a matter of right to amend his plaint at any stage he likes. It is for the Court to order whether the plaint is to be amended or not. The fact remains that the suit was not properly framed u/s 42, Specific Relief Act, and that the plaintiff persisted in saying that the court-fee paid was sufficient and refused to pay any additional court-fee. In these circumstances the decree of the Court below cannot be disturbed, and this appeal must be dismissed with costs. Leave to appeal under the Letters Patent is asked for, and is refused.