Manmathankutty vs Kerala State and Others

T. Ramachandran, J.—This appeal is filed under Order 43, Rule 1(d) of the CPC from the order of the Munsiff of Devikulam in O.S. No. 255 of 1993 which is now transferred and numbered as O.S. No. 133 of 1996 before the Sub Court of Thodupuzha.

The Appellant was the Plaintiff in O.S. No. 255 of 1993 before the Munsiff''s Court of Devikulam. That suit was filed for prohibitory injunction restraining the State from resorting to revenue recovery proceedings. Revenue recovery proceedings were initiated for realisation of Rs. 1,60,372. Fixed Court fee was paid u/s 27(c) of the Court Fees Act showing the valuation as Rs. 500. The lower Court held that as the subject-matter wife Rs. 1,60,372 it exceeded its pecuniary jurisdiction. Thus on 17th September 1996 the lower Court directed return of the plaint in order to file it before the Sub Court of Thodupuzha. Aggrieved by that order this C.M.A. is filed.

Notice was given to the Government Pleader and both sides were heard.

According to the learned Counsel appearing for the Appellant the provision of law attracted is Section 27(c) of the Court Fees Act and that the lower Court ought to have considered the valuation of Rs. 500 alone shown in the plaint. But it is to be noted that Section 27(c) of the Act is applicable only if the subject-matter is not capable of valuation. In the present case the subject-matter is Rs. 1,60,372 and that ought to have been shown in the valuation of the plaint. But instead of that the Plaintiff showed the imaginary figure of Rs. 500 as valuation of the plaint. It was thus that fixed Court fee was paid. It is true that the averments in the plaint are to be considered for the purpose of showing the correct valuation. But admittedly the subject-matter is Rs. 1,60,372 and that ought to have been shown as the valuation. Thus the lower Court was correct in holding that it had no pecuniary jurisdiction to try the suit. Thus it was correct in returning the plaint. I do not find any reason to interfere with that order. At this stage learned Counsel appearing for the Appellant submitted that he had already filed the suit before the Sub Court of Thodupuzha after amending the valuation in the plaint. Only when the Appellant was directed to pay additional Court fee this appeal is filed. It is clear that there is no bona fides in this appeal. Thus I do not find any merit in this appeal.

For the above reasons this C.M.A. is dismissed without Costs.

Spoken on 16th January 1997

Producing the certified copy of the plaint in O.S. No. 255 of L993 the learned Counsel appearing for the Appellant submitted before me that the fixed Court fee paid u/s 27(c) of the Kerala Court Fees and Suits Valuation Act was proper. It is seen from the plaint that the grievance of the Appellant is not against the amount shown in the notice and that there is no prayer for declaration. His case as seen in paragraph 4 of the plaint is only that the demand notice was devoid of any bona fides and it contained excessive and exorbitant amount. It is also seen that in the plaint the attack is against the mode of service of notice. In that particular case the notice was served on the Plaintiff''s servant on 4th November 1993 and that mode of service is being attacked. Prayer (a) in the plaint shows that injunction is sought restraining the Defendants from taking any steps against the Plaintiff or on his property in pursuance to the illegal and void demand notice served on the Plaintiff''s servant on 4th November 1993. So that is the main prayer in the plaint and that prayer is shown as not capable of valuation. It is thus that valuation is shown as Rs. 500 and fixed Court fee is paid u/s 27(c) of the Act. In support of his argument the learned Counsel cited the decision reported in Collector of Customs v. Abdulrahimankutty 1980 KLT 806. That was a similar case where this Court held that fixed Court fee u/s 27(c) of the Act alone need be paid. This decision further held that there was no necessity for incorporating the prayer for declaration and that the prayer for injunction was sufficient.

Learned Counsel has not gone through the amendment of Section 27(c) of the Act as per Act 6 of 1991. This amendment was brought to the attention of the Court by the learned Government Pleader. Now as per the amendment a proviso is added to Section 27(c) of the Act as follows:

Provided that where the relief sought by the Plaintiff is in respect of money sought to be recovered from him such relief shall not, for the purpose of computation of fee, be valued at an amount less than one half of the amount sought to be so recovered.

Thus the Court fee payable is on one half of the amount sought to be so recovered.

In this context the learned Counsel appearing for the Appellant cited the decisions reported in Raghavan Nair v. State of Kerala 1988 (1) KLT 552 and Sreekumaran v. State of Kerala and Ors., 1996 (1) KLJ 586 and submitted that only if it is a definite sum and only if it is admitted by the Plaintiff as due from him the proviso is attracted. It was further argued that the relief claimed in the suit was not with respect to the amount and it was only with respect to the notice issued. But on the plain reading of the proviso it can be seen that whatever may be the relief sought by the Plaintiff in respect of money sought to be recovered from him such relief shall be valued at an amount less than one half of the amount sought to be so recovered. Thus it is clear that as per the proviso Court fee is to be paid on one half of the amount shown to be recovered. Learned Counsel argued that the amount is not definite and that it was not capable of valuation. This aspect was considered by a Division Bench of this Court in the decision reported in Sreekumaran v. State of Kerala and Ors., 1996 (1) KLJ 586 and held that "the contention of the learned Counsel for the Petitioner that the subject matter of the suit in the present case is not capable of valuation, cannot be accepted in the nature of the notice issued to the Plaintiff, the nature of the averments in the plaint and the nature of the relief sought for by the Plaintiff". It was further observed that the amount demanded from the Plaintiff is a specific amount. Thus the subject matter of the suit is the liability or otherwise of the Plaintiff in respect of that definite sum. It was further held that "it is now settled that for the purpose of valuation what the Court is concerned with is the subject matter of the relief". Thus the Court held that the subject matter of the suit is the sum shown in the notice. This is made further clear in paragraph 8 of the judgment by the Division Bench. Thus it was held that the subject matter of the suit is the amount claimed in the recovery notice and in respect of which the Plaintiff has sought the relief of declaration that he has no liability in terms of the notice. It is true that in that decision what the Division Bench considered was the relief u/s 25 of the Act as there was a prayer for declaration. The proviso to Section 27 of the Act was not considered in that decision. When the language used in the proviso is so clear, there is no room for interpretation available to the Plaintiff. It is clear that for the purpose of computation of Court fee it should be valued at an amount not less than one half of the amount sought to be so recovered. Thus whether the Appellant admits the claim or not, he has to show the valuation as one half of the amount sought to be recovered from him.

For the above reasons the earlier judgment of this Court dated 15th January 1997 is reviewed. The C.M.A. is dismissed directing the Appellant to show the valuation as one half of the amount shown in the recovery notice and pay the Court fee accordingly before the Sub Court of Thodupuzha. No costs.

Send a copy of this judgment to the Sub Court, Thodupuzha.