K.S. Perumal Mudaliar vs K. Ondipiliya Pillai

Somasundaram, J.—Defendant 1 is the petitioner herein. The question involved in this revision is one under the Court-fees and Suits

Valuation Act. The plaintiff filed the suit in the Sub-Court, Madura, for a mandatory injunction for the demolition of some structures made by the

petitioner in a lane claimed to be common between the plaintiff and the defendants. The plaintiff valued the relief u/s 7(iv)(d), Court-fees Act at Rs.

3100 The defendant has taken objection to this valuation and contends that this has been deliberately overvalued for the purpose of filing this suit in

the Sub-Court. The Subordinate Judge returned the plaint holding that the right of the plaintiff u/s 7(iv)(d) to value his claim at his discretion has

been taken away by the notification issued by this High Court u/s 9, Suits Valuation Act, and relies for this purpose on the judgment of

Krishnaswami Iyengar J., In re Ghosh Beevi, 1944 1 M. L. J. 340 : A. I. R. 1944 Mad. 406. He further held that the proper method of

computation would be to assess the relief in the cost of the removal of the structures which is stated in the plaint itself to be Rs. 100. The plaintiff

filed an appeal to the District Court in C. M. A. No. 28 of 1947. The learned District Judge set aside the order of the Subordinate Judge and

directed him to take the suit on his file and dispose it of according to law. This revision is now against the order of the District Judge in the above

Civil Miscellaneous Appeal.

That the suit falls u/s 7(iv)(d), Court-fees Act, is not disputed by the petitioner and the respondent plaintiff has valued it u/s 7(iv)(d). u/s 7(iv)(c)

and (d) court-fee is payable according to the amount at which the relief sought is valued in the plaint. Clause (c) was amended in 1922 by Madras

Act V [5] of 1922 and u/s 9, Suits Valuation Act, this High Court has issued a notification which is as follows :

In suits for injunction, where relief is sought with reference to any immovable property, on the ground that the defendant denies the title of the

plaintiff to the property and disturbs or threatens to disturb the plaintiff''s possession thereof, the value of the subject-matter of the suit shall not be

less than half the value of the property calculated In the manner provided in Section 7, para. 5, Court-fees Act.

This notification applies for the class of suits which fall u/s 7(iv)(d). That this applies to this case also is not in dispute. Before the amendment to

clause (c) and the notification under clause (d), it has been held by our Court in Guruvajamma v. Venkatakrishnama Chetti, 24 Mad. 34 that the

Court has no power to increase the value given by the plaintiff. In Chinnammal v. Madarsa Rowther, 27 Mad. 480 also it was held that the Court

bas no jurisdiction to decline to accept the valuation given by the plaintiff and it could not revise the valuation. These two decisions came up for

consideration in Ramiah v. Ramasami, 24 M. L. J. 233 : 18 I. C. 363, a Full Bench decision of this Court. The question referred there was

whether a valuation made by a plaintiff of the relief sought by him in a suit for partition of properties which he claimed to be in joint possession

along with his coparceners may be rejected by the Court if it is proved not to be bona fide but an arbitrary valuation. There they state that the

settled practice of this Court would appear to be in accordance with the decisions in Guruvajamma v. Venkatakrishna Chetti, 24 Mad. 34 and

Chinnammal v. Madarsa Rowther, 27 Mad, 480. They were not prepared to differ from those decisions. It is clear from the decision of the Pall

Bench that even though the valuation may not be bona fide and may be arbitrary, the Court had no power to interfere with the discretion given to

the plaintiff u/s 7(iv)(o) and (d). As stated already, u/s 7(iv)(c) an amendment was introduced by Madras Act v [5] of 1922 by introducing a

proviso which stated that:

provided that in suits coming under Sub-clause (c) in cases where the relief sought is with reference to any immovable property such valuation

shall not be less than halt the value of the immovable property calculated in the manner provided for by para. 5 of the section.

For the purpose of Clause (d) a notification similar in effect has been issued u/s 9, Suits Valuation Act. The effect of this notification therefore is

that the plaintiff cannot value the suit at less than half the value calculated in the manner mentioned therein. In Re: Ghosh Beevi, or, which the

Subordinate Judge relies the plaintiff valued the suit at Rs. 100, a course which was open to him u/s 7(iv)(d), Court-fees Act read with Section 8,

Suits Valuation Act at the time of filing the suit. But when it came up in second appeal at the time of filing it, this notification was in force and

Krishnaswami Iyengar J. held that the notification applied and plaintiff was asked to pay court-fee in accordance with the notification. In Sri Sri

Satyabhigna Theerthaswamy Varu of Uttaradi Mutt by Alur Markapuram Srinivasacharyulu Vs. Mundru Narasayya and Others, the plaintiff

valued the injunction at Rs. 100 u/s 7(iv)(d) and paid court-fee thereon. Similarly, when it came up in appeal objection was taken and

Govindarajachari J. held that the plaintiff has to pay court-fee on the plaint and. memorandum of appeal in the lower appellate Court at half the

market value of the properties in respect of which he is seeking an injunction. These two decisions In re Ghosh Beevi, 1944 1 M. L. J. 340 : A. I.

R. 1944 Mad. 406 and Sri Sri Satyabhigna Theerthaswamy Varu of Uttaradi Mutt by Alur Markapuram Srinivasacharyulu Vs. Mundru

Narasayya and Others, are relied on by learned counsel for the petitioner who contends that the valuation should not exceed half the market value

of the property. As stated already, before this notification and the amendment, the plaintiff had absolute discretion which could not be Interfered

with by the Court. The question is whether under this notification, the discretion has been completely taken away. That the plaintiff cannot value his

claim at an amount less than half the market value of the property under the notification is clear from the words of the notification itself. When

therefore he cannot value the suit at less than half the market value of the property, can he be allowed to value it at any amount higher than the

market value of the property? Giving the plain meaning to the words of the notification it only means that he cannot value it at less than half. The

discretion therefore given to him to value over and above that is not in my opinion taken away because as already held by this Court, the plaintiff

has the discretion with which we cannot interfere and this discretion, in my opinion, is limited by this notification to the lower limit to which he can

go. It is true that very rarely a plaintiff would come forward voluntarily to pay higher court-fee. But if he does, in my opinion, his right to value it has

not been taken away by this notification. No doubt in Lakshman v. Babaji, 8 Bom. 31 it has been held that the plaintiff cannot by his valuation be

allowed to choose the forum. But that decision is not followed in our Court. In the Full Bench decision in Ramiah v. Ramaswami, 24 M. L. J. 233 :

18 I. C. 363 as already stated, the finding was that the valuation was not only arbitrary but not bona fide. Even under such circumstances, the

Court refused to interfere with the valuation. Assuming therefore that the valuation in this case is not bona fide and absolutely arbitrary, so long as it

does not offend the provisions of the notification issued u/s 9, Suits Valuation Act, I think the Court cannot interfere with the discretion of the

plaintiff.

The learned District Judge has also held that this is a case which will also fall u/s 7(iv)(e), Court-fees Act. It is true that so far as the prayer in the

plaint is concerned, he seeks only a mandatory injunction directing defendant 1 to demolish the structures put up by him; but the plaintiff has, in

para. 8 of his plaint, mentioned that there has been a diminution in the accustomed flow of light and air through the window in his house in

consequence of the obstruction as to materially interfere with the convenient occupation of the plaintiff''s house. Wadsworth J. has pointed out in

Venkatarangarao v. Sitha Ramachandrarao, I. L. R. (1941) Mad. 157 : A. I. R. 1941 Mad. 91 as follows:

Now it is well established that in matters of court-fee and pecuniary jurisdiction one must look to the real substance of the suit and not the form in

which it has been clothed. If, therefore, there is any legal necessity for the plaintiff to get a declaration of his right of easement before he can get an

injunction to protect it, the suit would have to be filed u/s 7(iv)(c), Court-fees Act, even though he has sought this declaration by means of

averments in the body of the plaint and not by praying for a declaration specifically amongst the reliefs at the end of the plaint. On this part of the

case, the safe rule is that, when there is some legal obstacle which has to be removed before a consequential relief can be granted, it is incumbent

upon the plaintiff to pray for a declaration which will have the effect of removing that obstacle. But if the plaintiff merely avers a title which can be

established without the cancellation of a document or the nullification of any adverse title and only claims the relief which would naturally flow from

the establishment of the title which he avers, it is not necessary for the plaintiff to pray expressly for a declaration of that title .... It seems to me that,

on the frame of the present suit, all that the plaintiff has to do is to prove by evidence that he has a subsisting right of easement to the extent and of

the nature claimed. If the evidence establishes the existence of this right, there is no legal impediment which has to be removed before the injunction

protecting that right will be granted; and whether he has or has not sued for declaration, it is not necessary for him to pay court-fee on the footing

that the finding which he seeks as to his title is really a declaration, necessarily required as a preliminary to the grant of her injunction.

In this case, as already stated, there is a complaint that the plaintiff''s right to air and light has been interfered with and though there is no specific

prayer foe a declaration to that effect, it is enough if the plaintiff establishes by evidence the existence of his right and it is not necessary for him to

pay court-fee on the footing that the finding which he seeks as to his title is really a declaration necessarily required as preliminary to the granting of

the injunction.

Mr. Ramaswami Aiyangar contends that there can be no easement in this case as the property is claimed to be the common lane of the plaintiff

and that the definition of easement under the Easements Act will not apply to this. This question whether he has got a right has to be decided in the

case and probably will be one of the issues raised. This cannot be decided at this stage and it will have to be gone into by the lower Court. If,

therefore, the relief for injunction is sought for on the plaintiff''s right of easement, it is difficult to say that the suit has been grossly overvalued. In

either view I hold that the judgment of the lower appellate Court is correct. It is, therefore, confirmed and this revision petition is dismissed with

costs.