Raj Kumar vs Bhim Sen and Another

M.S. Liberhan, J.—The factual matrix is not in dispute. The plaintiff brought a suit for mandatory injunction, inter-alia contending that the respondent-defendant are the licenses and their licensees cancelled, they be restrained from using the portion of the property in their possession as licencees.

The respondent-defendants took the objection that the suit is not properly valued for the purpose of Court fee and jurisdiction, inter-alia contending that in fact, they are the not the licensees. They are in possession of the property in dispute in their own rights. The suit for possession is only maintainable.

Following issues was framed:-

"Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction?"

It was treated as a preliminary issue.

The trial Court after appreciation of evidence led by the parties, come to the conclusion:- The defendant-respondents are not the licensees and are in possession of the property in their own rights. Thus, the suit is in fact, for possession and consequently, the Court fee leviable on the suit is on basis of market value of the property which is assessed at Rs. 30,000/-.

The learned counsel for the petitioner argued that for the purpose of determining the question of Court fee, it is the plaint as drafted and the relief sought, which is to be taken into consideration, Section 6 of the Court Fees Act envisages the fees on documents etc. in Muffasil Courts or in Public offices. Section 7 of the Act is a charging. Section, which provides for computation of fee payable in certain suits. The question raised by the learned counsel for the petitioner is not res-integra. Hon''ble the Supreme Court has laid down law as reported in S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, to the effect:-

"The question of Court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by pleas in the written statements or by final decision of the suit on merits."

In view of the law laid down by Hon''ble the Supreme Court the 4earned trial Court had no jurisdiction to go into the defence taken by the respondents nor-it could read the contentions of the parties. The plaint has to be read s it is. Averments have to be taken to be prima facie correct and then Court fee assessed. I may hasten to add that unless value for the purpose of Court fee on the face of it is arbitrary, the suit has to be taken to be properly valued. At the initial stage of the suit, the trial Court has erred in exercise, of its jurisdiction while determining the Court fee. The question of valuation of the suit for the purpose of Court fee has to be determined without arriving at the conclusion with respect to the nature of the possession of the respondent-defendants; It is only after trial of the suit on merits, if the Court comes to the conclusion that the respondents were in possession of the property in dispute in their own right and dot as the licensees or the pleas taken by the plaintiff are found to be false appropriate orders could have been passed with respect to the maintainability of the suit etc. but the trial Court cannot assume jurisdiction to consider the pleas taken in defence for the purpose of charging the Court fee.

In my considered view, the learned trial Court has acted with material illegality in exercise of its jurisdiction. Suit as framed is properly valued for the purpose of the Court fee and jurisdiction particularly when the suit has been filed before the Court of unlimited jurisdiction viz. of Sub Judge 1st Class. Thus, the -value as disclosed by the plaintiff for payment of Court fee on the relief claimed in the plaint should be taken to be correct. I am supported in my above observations by the judgment of Hon''ble the Supreme Court in Sujir Keshav Nayak Vs. Sujir Ganesh Nayak, .

In view of the observations made above, the revision petition is allowed, the impugned order is quashed. However, any observation made above shall not be taken note of while deciding the suit on merits.