Shri Mathra Dass vs Ram Kali and another

P.C. Pandit, J.—Shrimati Ram Kali Kali brought a suit for a declaration that the mortgage dead dated 16th of December, 1965, and the sale-deed dated 11th of May, 1966, executed by her mother Shrimati Ram Piari in favour of Mathra Dass, were without necessity and invalid in law and they were, consequently, not binding on her after the death of her mother. She also claimed a permanent injunction restraining Mathra Dass from alienating the property in dispute in any manner in future. In the alternative, a decree for possession of the property by pre-emption was also sought.

The suit was contested by Mathra Dass, who also raised a preliminary objection to the effect that the suit was not valued properly for the purposes of court-fee and jurisdiction. His objection was that the suit involved four reliefs on which separate court-fee should have been paid.

A preliminary issue was framed by the trial Court-whether the suit is properly valued for the purposes of court-fee and jurisdiction.

The trial Judge came to the conclusion that the plaintiff was seeking to invalidate two transactions and she was, therefore liable to pay separate court-fee on each such relief claimed by her. As regards the permanent injunction, his view was that it was not a separate relief. It flowed from the relief of declaration and was, therefore, consequential. No separate court-fee was required therefor. So far as the alternative relief for possession of the property by pre-emption was concerned, his finding was that it was a distinct claim and, should be assessed separately for the purposes of court-fee and jurisdiction.

Against this decision, the present revision petition has been filed by the defendant, Mathra Dass, u/s 115 of the Code of Civil Procedure, and his objection is that the learned Subordinate Judge was in error in holding that the relief regarding permanent injunction was a consequential one. According to Mathra Dass, this relief was also a distinct one and separate court-fee should have been paid by the plaintiff thereon.

It may be stated that Shrimati Ram Piari, who was impleaded as respondent No. 2 in this Court, was not served. Counsel for the petitioner submitted that she was merely a proforma respondent and her name be struck off the record. I order accordingly.

A preliminary objection was raised by the learned counsel for the respondent Shrimati Ram Kali, that the order of the trial Judge regarding the court-fee matter was not revisable by this Court in a revision petition at the instance of the defendant Mathra Dass. In that connection, be relied on the decision of the Supreme Court in Sri Ratnavaramaraja Vs. Smt. Vimla, .

Learned counsel for the petitioner submitted that a revision might not lie at the instance of the defendant regarding the adequacy of the stamp duty paid on the plaint, but where the question was as to the category in which a particular suit fell, for example, whether it was covered by the provisions of section 7(4)(6) or Article 17(iii) of Schedule II of the Court Fee''s Act, a revision, at instance of the defendant, was maintainable, if he alleged that that question had been wrongly decided by the Court below. For this submission, he placed his relief on a Single Bench and a Full Bench decision of the Kerala High Court in

Sankaran Nadar Lekshmanan Nadar v. Varathan Nadar Krishnan Naiar AIR 1961 Kerala 142 Zainabey Razak v. Noor Mohammed Rothan AIR 1961 Kerala 146 respectively.

After hearing the counsel for the parties, I am of the view that there is merit in the preliminary objection. The Supreme Court in Sri Rathnayarmaraja''s case, has clearly held-

The Court fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court u/s 115 of the CPC is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material regularity in the exercise of its jurisdiction. 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.

According to the above mentioned decision, this revision-petition is not competent at the instance of the defendant Mathra Dass. It was conceded at the bar that both the authorities of the Kerala High Court had been given before the Supreme Court decision, referred to above. No ruling had been cited by the learned counsel for the petitioner supporting his stand after the decision in Sri Rathnayarmaraja''s case. It was also conceded that even if the question regarding the court-fee had been decided according to the wishes of the petitioner, the trial Judge would still have jurisdiction to try the present suit.

The result is that this revision petition fails and is dismissed, but with no order as to costs. The parties have been directed to appear before the trial Court on 12th of May, 1969, for further proceedings in the case.