Mst. Prom Dulari vs Mst. Raj Kumari

J.N. Bhat, J.—A suit under the Right of Prior Purchase Act was lodged by the Respondent against the Petitioner in the Court of the

Additional District Judge Jammu with respect to a house situate at Mohalla Panchtirthi Jammu. The Plaintiff valued the suit for purposes of court-

fee and jurisdiction at Rs. 10,700/-, whereas the consideration mentioned in the sale deed was Rs. 13,000/-. An objection was raised by the

Defendant-vendee with regard to the court-fee paid by the Plaintiff. A preliminary issue was framed by the trial Court about the deficiency in the

court-fee. The trial Court held that the sale price of Rs. 13, 000/.mentioned in the sale deed was fixed in good faith and paid to the vendee. It,

therefore, held Rs. 13,000/- as the market value of the property and directed the Plaintiff, to make up the deficiency in the court-fee to that

extent/Against that order the Defendant vendee has come up in revision to this Court.

The Defendant's main argument is that the market value of the house should be the market value at the time of the institution of the suit and not at

the time the sale took place. According to him, the market value of the house at the time of the institution of the suit was Rs. 15,000/-.and hence

the Plaintiff should have paid court-fee on that consideration and not on Rs. 13,00,0/- as held by the trial Court.

A preliminary objection has been raised about the maintainability of this revision petition. Unfortunately there is divergence of authorities on the

point and even the same High Courts have in more than one case been compelled to set aside their earlier decisions. Earlier- Full Bench decisions

have been set aside by the same Courts in subsequent authorities. The matter of revisability of such orders came up before the Supreme Court in

two authorities reported as Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, and Sri Ratnavaramaraja Vs. Smt. Vimla, .

Even these two authorities at the fast sight do not seem to be consistent with each other, and the latest authority, Sri Ratnavaramaraja Vs. Smt.

Vimla, would apparently appear, to have laid down a much wider dictum annulling by implication its decision in Nemi Chand and Another Vs. The

Edward Mills Co. Ltd. and Another, . I shall take up the Supreme Court authorities last of all. First let mo state the various propositions as

emanate from various decisions of the different High Courts in India, in the matter of the maintainability of a revision against an order deciding the

question of court-lee. There are some authorities which lay down that no revision lies against an order of an inferior Court wherein the question of

court-fee is decided. As an illustration for this extreme view the following authorities may be mentioned:

Mathew Mathews Kathanar v. Kuria Kose Easus Kathanar, AIR 1954 Ker 178 It may be noted that this authority was overruled by the same

High Court in Mammunhi Vs. Kunhibi, wherein it was held that a revision lies when the question of category under which court-fee is payable is

involved in a particular case.

Along with AIR 1954 Ker 178 (Supra) the following authorities may also be mentioned Gupta and Co. Vs. Kripa Ram Brothers ; State of

Saurashtra v. K. S. Sakti Kumar Kalika Kumar, A I R 1956 Guj 93; Dr. Harbans Lal Khosla Vs. Mohan Lal Sanon, and Kanahia Lal Vs. Ram

Kishan and Another, .

A I R 1957 All 339 (Supra) lays down an extreme view.

As against this set of authorities there is Anr. set of authorities which holds that a revision lies whether the decision is in favour of the Plaintiff or

the Defendant on a question of court-fee. In this correction the following authorities may be cited: Ramkhelawan Sahu Vs. Bir Surendra Sahi and

Others, , Shankar Maruti Girme Vs. Bhagwant Gunaji Girme, ; Urmilabala Biswas Vs. Binapani Biswas and Others, and Syed Sabjumiah Hussain

and Others Vs. Kalayigar Abdul Vahab Sab and Another, .

There is one other set of authorities which holds that when a decision is unfavorable to the Plaintiff and additional court-fee is demanded from

him, a revision may him at the instance of the Plaintiff. Amongst Ors. , the following authorities may be cited in favour of this- proposition: AIR

1938 122 (Nagpur) , ; Aziz Bhat v. Sulthan Bhat, AIR 1960 J & K 64 and Chintalapati Murthiraju Vs. Chintalapati Subbaraju and Others, .

AIR 1938 122 (Nagpur) overrules a similar ruling of the same High Court reported as AIR 1933 107 (Nagpur) .

These authorities indirectly lay down that no revision is competent to a Defendant when the question of court-fee decided by the lower Court is

against him. In support of this proposition there are other authorities also which may be mentioned: Tewari Singh and Others Vs. Gaya Prasad Sah

and Others, and Chintalapati Murthiraju Vs. Chintalapati Subbaraju and Others, .

Another set of authorities lays down that when a question of jurisdiction or the question of a category under which court fee payable is

involved, a revision lies. For this proposition the following authorities may be perused: Vlshwanath Vasudeo v. Sakal Alya Panch, A I R 1953 MP

40; Mammunhi Vs. Kunhibi, and Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, .

The Kerala authority is based on Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, .

As I said earlier it might at first sight appear that AIR 1981 SC 1299 overrules Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and

Another, but a careful reading of both would disclose that it is not so. Sri Ratnavaramaraja Vs. Smt. Vimla, deals with the case of a Defendant

against whom a decision on court-fee is given. Their Lordships have said that the High Court should not have entertained revision petitions from the

Defendant when no question of jurisdiction was involved in the matter. A I R 1053 SC 28 has not been referred to in this judgment. The point in A

I R 1953 SC 28 was entirely different pertaining to the category under which court-fee was payable and hence the former judgment cannot be said

to have overruled the latter, as the two judgments dealt with different matters.

From this confused state of affairs the following principles can be safely deduced as settled:

A revision does not lie at the instinct) of the Defendant against whom the question of court-fee is decided unless, the question of jurisdiction or

the category under which court-fee is payable is involved.

A Plaintiff can come up in revision if the order his against him and demands additional court-fee. In other cases when the question of court-fee is

decided, a Defendant cannot challenge an order of this kind by means of a revision petition.

The extreme view that no revision lies seems to have been given up by later pronouncements, though the latest Supreme Court authority, AIR

1961 S C 1299 (Supra) would ostensibly lend support to this proposition.

Their Lordships in that authority have paid down: ""Whether proper court-fee is paid on a plaint is primarily a question between the Plaintiff and the

state. The jurisdiction in revision exercised be the High Court u/s 115 of the Code of CPC (C.P.C) is strictly conditioned by Clause (a) to (c)

thereof. The Defendant who may believe and even honestly, that proper court-fee has not been paid by the Plaintiff has still no right to move the

superior Courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint.

But as this was a case in which the Defendant was aggrieved by the decision of the lower Courts in the matter of court-fee this authority can be

interpreted as laying down that the Defendant has no right of revision against an order deciding court-fee. Their Lordships' above observations

have to be read as applicable to the facts of that case. The last sentence in the judgment of their Lordships would indicate that their Lordships have

envisaged revisions lying at the instance of a Defendant when a question of jurisdiction was involved. Their Lordships say:

In our view the High Court seriously erred in entertaining revision applications on questions of court fee at the instance of the Defendant, when no

question of jurisdiction was involved.

This being the state of law and the latest pronouncements of the Supreme Court on the subject, it is clear that the present revision petition is not

maintainable. No question of jurisdiction and no question of category of court-lee are involved in this case, because in either case the court-fee

payable would be on the market value of the property.

This would be sufficient to dispose of this revision petition, but as Anr. point of importance has been discussed before me on which again there

is a divergence of opinion, I would like to record my finding on that point also, the point being whether the market value of the suit property is that

value which the property had at the time of the sale or at the time of the institution of the suit.

In Slier Muhammad v. Ahmad Said, AIR 1924 Lah 380 it was held by Scott-Smith J. that in suits for pre-emption the market value at the time

of the sale is the value for purposes of court-fee and jurisdiction and not the market value at the time of suit. The learned Judge followed on earlier

authority of the Allahabad High Court in Gobind Dayal v. lnayat-ullah, ILR 7 All 775. The reasoning of the learned Judges in that authority was

that ""The right of pre-emption is not a right of repurchase, but is simply a right of substitution entitling the pre-emptor by reason of a legal incident

to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which

he has derived his title. It is in effect as if in a sale deed the vendee's name were rubbed out and the preemptor's name inserted in its place. In other

words the Plaintiff in the present case wishes to have his name substituted for the vendee in the deed of sale. This being so, I think it is clear that the

market value which has to be taken is the market value at the time of the sale.

As against this, we have got an authority reported as Mt. Mahomed Ba'nu Begam v. Mr. Sultani, AIR 1949 All 107 which lays clown:

The market value of the property in suit must be determined with reference to the provisions of the Court-fees Act alone. When the legislature

provided in Section 7 (vi) read with Sub-section (v) that the court-fee must be paid according to the market value of the building or land, it must be

deemed to lay down that the value should be determined with reference to the point of time when the suit is instituted. The price paid or the

variation in the value of the property at a date earlier than the date when the suit is instituted should not be taken into account.

I am personally in agreement with the Allahabad view which has been given by a Division Bench of that court against the pronouncement of Scott-

Smith J., in AIR 1924 Lah 380 (Supra). The reason is obvious. Section 7 (v) (e) of the Court-fees Act lays down the amount of, court-fees

payable for the possession of land, house etc., according to the value of the subject matter. Where the subject matter is a house or garden, the

court fee payable is according to the market value of the house or garden. In para (6) of the same section it is laid down that in suits to enforce a

right of pre-emption the value of the land or house shall be computed in accordance with para 5of this section.

A suit for pre-emption is essentially a suit for possession. In a suit for possession court-fee has to be paid on the market value of the property,

when 'the suit property is a house, garden etc. The market value must be the one which the property has on the date of institution of the suit and

any valuation prior to the institution of the suit would be immaterial. When the language of the section is clear, I think a court of law will not be

justified in placing any other construction upon the words which is different from their ordinary connotation. We cannot add or subtract words in

order to make the provisions conform to what one would think the law should have been like. If the law intended to make any distinction in the

case of suits on the ground of prior purchase and the ordinary suits for possession, it could easily say so in express words. The golden rule of

interpretation has always been as Blackburn J. observed in the House of Lords in Eastern Counties & London & Blackwell Railway Companies v.

Francis Marriage, (1860) 639 at p. 641, that:

We are bound to look at the language used in the. Act, construing it with reference to the object, with respect to which the legislature has used

that-language, but construing it in its ordinary grammatical sense, unless there is something in the subject matter or the context to show that it is to

be under-stood in some other sense, and doing all this we are to say what is the intention of the legislature expressed by that language. He further

said; ' I dread very much the consequences, if once the judicature begins to trespass on the province of the legislature, and to pronounce not what

the enactment is, but what is ought to be. If we do, I do not know where we are to stop. I think it is better in construing an Act, to follow what has

been called the golden rule and to declare that to be the intention of the legislature which appears to be expressed by the words used, understood

in their ordinary sense, unless that is manifestly absurd or unjust..........

Similarly G. W. Paton in his Text Book of Jurisprudence writes that amongst [the three fundamental rules regarding interpretation of statutes,

the first is if the meaning of a section is plain, it is to be applied whatever the result; the golden rule that the words should be given their ordinary

sense unless that would lead to some absurdity or inconsistency with the rest of the instrument.....

Maxwell on his Interpretation of Statutes (10th Edn. page 7) has laid down ""the golden rule is that the words of a statute must prima facie be

given their ordinary meaning.... Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory

words....

Crawford in his Statutory Construction has said: ""The first source from which the legislative intent is to be sought is the words of the statute.

The Supreme Court in New Piece Goods Bazar Co. Ltd. v. Comm. of Income Tax, Bombay, AIR 1950 SC 165 has stated that It is an

elementary duty of a court to give effect to the intention of the legislature as expressed in the words used by it and no outside consideration can be

called in aid to find that intention.

Similarly in Anr. case Ramanjava Singh v. Baijnath Singh, AIR 1954 SC 74.9 their Lordships of the Supreme Court held:

The spirit of law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain

language of the section of the Act and the rules made there under. If all that can be said of' these statutory provisions is that construed according to

the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal

must be to Parliament and not to this Court .

Therefore the interpretation of Scott-Smith J., in AIR 1924 Lah 380 (Supra) cannot be accepted as correct, and the Allahabad ruling must be

recognized as the correct interpretation of the section.

The result is that this revision petition is dismissed. There will be no order as to costs.