Rekha Agarwal vs Tapan Kumar Mishra And Another

The plaintiff in a declaratory suit in respect of an immovable property has preferred the instant revisional application, challenging an order whereby the

court below allowed an application filed by the defendants/opposite parties under Order VII Rule 10 of the Code of Civil Procedure and returning the

plaint for being presented before the proper forum, on the ground that the suit was under-valued in view of the reliefs claimed. The suit from which

the present revision arises was filed for the following reliefs:

“a) Declaration that the purported agreements dated October 7, 2012 and February 27, 2013 are void, inoperative and not binding on the plaintiff;

b) Decree directing the defendants and each of them to deliver up the saidalleged agreements dated October 7, 2012 and February 27, 2013 so that

the same are cancelled by the Office of this Learned Court;

c) Permanent injunction restraining the defendants and each of them fromdisturbing or interfering with the plaintiff’s peaceful occupation and

enjoyment of the suit property in any manner whatsoever, whether by themselves, or through their men, agents, servants and/or assigns;

d) Temporary injunction;

e) Costs;

f) Receiver;

g) Further and/or other order or orders.â€​

In such suit, the defendants/opposite parties filed an application for return of plaint on the ground that, in view of the nature of the reliefs claimed, the

valuation of the suit ought to be at par with the valuation of the suit property and the valuation as assessed by the plaintiff was demonstratively below

what it should be. Learned counsel for the plaintiff/petitioner argues that the primary relief sought in the suit was relief (a) of the plaint, which was a

declaration simpliciter that the purported agreements dated October 7, 2012 and February 27, 2013 were void, inoperative and not binding on the

plaintiff. The subsequent reliefs, being that as to cancellation of such deeds, permanent injunction and other consequential reliefs were only ancillary

reliefs in aid of relief (a).

In support of his contention, learned counsel for the petitioner cites a judgment rendered by a co-ordinate Bench of this Court in the unreported case

of Kanai Lal Dutta Vs. Babu Das Bairagya in C. O. No. 2920 of 2011. In the said case, it was held that the prayer for declaration that a purported

deed of gift was not binding on the plaintiff, was the main relief and the suit had to be valued on the basis of such relief. Since the valuation would be

as per assessment of the plaintiff, the valuation was held to be proper in the said case.

In the next cited judgment, reported at 2008(2) CLJ(Cal) 306 (Sri Kartick Mondal and others vs. Sri Biman Sen and others), another co-ordinate

Bench of this Court held that the reliefs claimed in the suit, from which the said matter arose, relating to injunction or recovery of possession, were

dependent upon the relief of declaration of title. On such premise, it was held that the suit was correctly valued and declaration of title was the

primary relief in the suit.

Learned counsel for the petitioner next relies on the judgment reported at (2006) 1 WBLR (Cal) 374 (Paresh Chandra Nath Vs. Naresh Chandra

Nath and others), where another co-ordinate Bench of this Court held that in a suit for declaration simpliciter, on the premise that a deed of gift was

obtained by practising fraud on the plaintiff, such declaration was the substance of the claim and other prayers were only consequential. Although the

relief for setting aside the deed was prayed for in the suit, this Court held that the suit was one for declaration simpliciter, on the premise that the

purported deed of gift was obtained by practising fraud. Accordingly, the court-fees paid were held to be correct.

Learned senior counsel appearing for the opposite parties controverted such arguments and submitted in support of the impugned order that relief (b)

in the plaint was the primary relief and as such, the suit ought to have been valued on the basis of the said relief. A careful perusal of the relief

claimed in the plaint in the case at hand shows that the plaintiff/petitioner was, even as per the plaint allegations, herself a party to the agreements in

question. As such, the provision for filing a suit of the present nature would flow from Section 31 of the Specific Relief Act, 1963. Section 31 of the

said Act of 1963 reads as follows:

“ 31. When cancellation may be ordered.-

(1) Any person against whom a written instrument is void or voidable, and who hasreasonable apprehension that such instrument, if left outstanding

may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be

delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the

officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact

of its cancellation.†It is evident that unless the plaintiff seeks relief (b), that is, cancellation of the agreements in question, a question would arise as

to the maintainability of the suit itself, since only a stranger to the agreements in question would have challenged the agreements by seeking a mere

declaration that those were not binding on the plaintiff.

As such, the intention of the plaintiff has to be gathered in the light of the plaintiff being a dominus litis, and wishing to succeed in the suit. It cannot be

construed that the plaintiff would relinquish the cardinal claim made in the suit and can seek consequential reliefs simpliciter, thereby rendering the suit

not maintainable in the eye of law, particularly, in view of the proviso to Section 34 of the said Act of 1963, which would prohibit the suit for

declaration in terms of prayer (a) without seeking cancellation in terms of prayer (b) in the present plaint.

Even if we see the language of Section 31 of the said Act of 1963, the adjudication as to a challenged document being void or voidable is in-built in the

prayer for delivering up and cancelling the documents in question. As such, relief (a) in the suit is actually not an independent relief, but only a part of

the relief, which culminates in relief (b). If we look at the language of Section 31(1) of the said Act of 1963, it is seen that the person aggrieved with a

document may sue to have the said document adjudged void or voidable; and the court may, in its discretion, so adjudge it or direct it to be delivered up

and cancelled.

As such, the adjudication as to the relevant document being void is only a build-up to the relief of cancellation, which has to be sought by such an

aggrieved person. Hence, relief (a) in the present suit is only a component of relief (b) and cannot be seen in a standalone manner. As a result, the

present suit can only be maintained primarily on relief (b) as stated in the plaint and all the other reliefs are only consequential thereto. As to the

judgments cited, those in Kanailal Dutta’s case and Kartick Mondal’s case, do not have any direct bearing on the present matter, since the

nature of declarations sought in the said suit were different from the present one.

However, although the judgment in Paresh Chandra Nath’s case might have had relevance to the present matter, but since the actual reliefs

sought therein were not set out in the reported judgment, it would be difficult to arrive at a conclusion as to whether the said judgment is binding as a

precedent in the present context. Moreover, here it is not a mere question of the substance of the claim in a plaint being commission of fraud but as to

whether the reliefs substantially claimed by the plaintiff permit of the valuation as given in the plaint.

As such, in the light of the discussions made above, the impugned order returning the plaint for presentation before a higher pecuniary forum cannot be

faulted in any manner. Accordingly, C. O. No. 1671 of 2018 is dismissed on contest, without, however, any order as to costs. Urgent certified website

copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.