Sitaram Singh vs Kesho Prasad Singh Bahadur and Others

Jwala Prasad, J.—This is an application against Order No. 32 of the Munsif of Chapra, dated 26th March 1930, directing the plaintiff to pay court-fee upon Rs. 1,200, giving him time to pay the deficit court-fee up to 31st March 1930.

Suit No. 256 of 1928 was instituted in the Court of the 1st Munsif, Chapra, by filing a plaint on 10th October 1928. The plaintiffs sought the following reliefs:

(1) That it be held and declared that the decree against the plaintiffs and defendants 2 to 9, dated 13th December 1927, obtained in Suit No. 655 of 1927, for arrears of runt and the sale, dated 11th July 1928, in Execution Case No. 421 of 1928 are not binding upon the plaintiffs and that by the said sale defendant 10 did not acquire any interest in the said property; and (2) that on determination of relief No. 1 the aforesaid decree and the sale be set aside and an injunction be issued upon defendant 10 forbidding him from taking possession of the property. Court-fee was paid upon Rs. 40, the amount of the decree in question, stating that that was the value of the suit. Defendant 1 is the landlord, and plaintiffs 1 and 2 are said to be the kashtkars of the holding under defendant 1. Plaintiff 3 is the zarpeshgidar in respect of 3 bighas 10 kathas of the holding which consisted of 4 bighas 4 kathas and 17 dhurs. Defendants 2 to 9 are the tenants and defendant 10 is the purchaser of the said holding in execution of the rent decree referred to above.

The suit was resisted by defendants 1 and 10, who filed separate written statements. The plaintiffs had stated that the decree and the sale were fraudulent by reason of which the holding of great value was sold at a nominal price of Rs. 40. The value of the holding was not stated in the plaint. Defendant 1 in his written statement dated 26th February 1929, stated that the value of the property was Rs. 500 and defendant 10 in his written statement, dated 21st June 1929, stated that the property was sold at its proper value. On 21st June 1929 the following issues were framed by the Munsif:

(1) Is the suit as framed maintainable?

(2) Was the decree, dated 13th December 1927 in rent suit No. 655 of 1927 fraudulently obtained and are the decree and sale in Execution Case No. 421 of 1928 liable to be set aside?

(3) To what relief, if any, is the plaintiff entitled?

There was no issue as to the sufficiency or otherwise of the court-fee paid by the plaintiff. After several adjournments the suit was ultimately taken up on 25th March 1930. On that date four witnesses were examined on behalf of the plaintiff and one witness on behalf of the defendant. Certain documents were exhibited on behalf of the parties: Exs. 1 and 2 to 2-A for the plaintiff and Ex. A for the defendant. On that day on the application of plaintiff 3, plaintiffs 1 and 2 were removed from the category of plaintiffs and made defendants. The next day on 26th March the Court held that the court-fee paid on the plaint was insufficient and made the order referred to in the beginning of this judgment, directing the plaintiff to pay the deficit court-fee by 31st March 1930. The plaintiff has come to this Court in revision and urges that the order of the Munsif is illegal and without jurisdiction.

Defendant 1 alone has appeared and opposes the application of the plaintiff. Both parties have cited a number of cases in support of their contentions.

The contention of the plaintiff is that the suit comes u/s 7, Clause (4)(c), Court-fees Act, inasmuch as he wants a declaration that the rent decree obtained by defendant 1 and the sale held in execution of that decree were fraudulent and not binding upon the plaintiff and the consequential relief is sought for issuing an injunction against defendant 10, the purchaser of the holding in execution of the aforesaid rent decree, restraining him from taking possession of the holding in question, and it is said that the plaintiff is at liberty to value the consequential relief at his own option and the court-fee payable by him is upon such valuation. It is said that he valued the relief at Rs. 40, the amount of the decree and the price at which defendant 10 purchased the holding at the execution sale. He draws the attention of the Court to the statement in his plaint where it is said that he expressly stated that the value of the relief is Rs. 40 and that is the value for the purposes of jurisdiction as well. The defendant, on the other hand, contends that the plaintiff is seeking not only a declaration that the decree and the sale in question were fraudulent and not binding on him but also that the said decree and the sale be set aside, adding to it a prayer for injunction restraining defendant 10 from taking possession of the property in suit and he should pay court-fee upon the actual value of the subject-matter in dispute, namely, the holding in question, and that value has been found by the Court below to be Rs. 1,200. Therefore the defendant says that the order of the Court below is right. The defendant also says that the ordinary question is not subject to revision by this Court.

It does not appear how the question regarding the court-fee came to be heard by the learned Munsif. The entire record of the case has not come here. It is therefore necessary to look into the record which may be called for. (On receiving the record the judgment proceeded.)

The record of the case has come here and I have looked into it. As observed above, there was no issue framed on the question of court-fee, and the case was heard on merits on 25th March 1930, when witnesses on behalf of the parties were being examined. The plaintiff''s case was that a very valuable holding was sold for an inadequate value and consequently towards the close of his examination-in-chief he stated that the value of the property was Rs. 1,200. There was no cross-examination on this point and in fact defendant 1 had stated the value to be Rs. 500 only and defendant 10 had stated that the property was sold at its proper value, namely Rs. 40. The Court however upon the statement made by the plaintiff held that the plaintiff ought to pay court-fee upon Rs. 1,200 and passed the order under revision.

There is no dispute between the parties as to the nature of the suit, and as to what provision of the Court-fees Act should apply to it. Both parties admit that the court-fee payable would come u/s 7, Clause (4)(c); that is the claim must be treated as one in which the relief sought is to obtain a declaratory decree with consequential relief as set forth and detailed in the reliefs in the plaint quoted in the earlier part of this judgment. In such a suit the amount of fee payable shall be computed "according to the amount at which the relief sought is valued in the plaint," and the plaintiff is therefore at liberty to value the relief sought by him. It is not the value of the property that would determine the amount of court-fee payable u/s 7, Clause (4)(c). The Court-fee is payable upon the value of the property in cases mentioned in Section 7, Clause (5). For instance, in the case of Jogendra Nath Sen v. Tariautnessa Bibi AIR 1922 Cal. 242 the value of the property was Rs. 4,000 as admitted in the plaint. The decree and sale of that property were sought to be set aside with prayer for injunction, as in the present case, and it was held that that consequential relief brought the case within the purview of Section 7, Clause (4)(c) and ad valorem court-fee was payable; but it was held that that fee was payable upon Rs. 57-5-0 at which the plaintiff valued his relief. His Lordship the Chief Justice in that case observed:

It is true that in one portion of the plaint, the plaintiff stated that the price of the property sold was Rs. 4,000. That statement was made in connexion with the case set up by the plaintiff that the property sold was at a low price and probably was exaggerated. However that may be, so Jar as the value of the suit was concerned it was laid at Rs. 57-5-0, that being the amount recoverable under the decree ... the claim was only for a declaration that the decree and sale were fraudulent and for an injunction. In such a case the party can put his own value on the plaint.

This is exactly what has happened in the present case. The plaintiff seeks to set aside the decree valued at Rs. 40 and the sale of the property which was sold at Rs. 40. In his evidence he stated that the property was valued at Rs. 1,200, but was sold for a very inadequate price of Rs. 40. The same view may be gathered from other authorities, namely Neko Tewari v. Kishun Prasad Pandey AIR 1924 Pat, 582, Bankey Behari v. Ram Bahadur [1919] 4 Pat. L.J. 191 and Brij Krishna Das v. Murli Rai [1919] 4 Pat. L.J. 703.

Mr. Sunder Lal, on behalf of the opposite party, does not dispute this, but says that the plaintiff should not be allowed to value his relief according to his own whims, but he should put a reasonable value; and consequently he contends that the value of the reliefs sought in the present case should be not less than at least Rs. 300, the amount of the zarpeshgi of the plaintiff which by reason of the sale of the holding he is to lose. He says that the loss of the plaintiff in the present case is the amount of the aforesaid zarposhgi money. The plaintiff is the zarpeshgidar of 3 bighas 10 kathas of the holding consisting of 4 bighas 4 kathas 17 dhurs. Says Mr. Sunder Lal that the value stated by his client in the written statement is Rs. 500 of the entire 4 bighas 4 kathas and 17 dhurs and the plaintiff''s zarpeshgi of Rs. 300 is only upon 3 bighas and 10 kathas, and that is the loss of the plaintiff in the present case and consequently that should be the value of the suit. Therefore Mr. Sunder Lal admits that the value of the plaintiff''s relief cannot be Rs. 1,200 upon which the Munsif demanded the court-fee, but that it should be limited to Rs. 500, the value of the whole holding, or at least Rs. 300, the value of the plaintiff''s zarpeshgi which he is about to lose. In support of his contention he relies upon the cases of Brij Krishna Das v. Murli Rai [1919] 4 Pat. L.J. 703 and Umatul Batul v. Mt. Nanii Kuer [1907] 11 C.W.N. 705.

Mr. Shambhu Saran relies upon the Full Bench decision in the case of Arunachalam Chetty v. Rangasawmy Pillai [1915] 38 Mad. 922 at p. 925, which relying upon a Pull Bench decision in the case of Chelasani Ramiah v. Chelasani Ramasami [1913] 18 I.C. 363\\ held that the valuation given by the plaintiff in cases coming under Clause (4) is conclusive, and that it could not be raised or reopened. It was pointed out in the case of Mt. Bibi Umatul Batul v. Mt. Nanji Kuer [1907] 11 C.W.N. 705 that although it is for the plaintiff to state the amount at which he values the relief sought and although the amount of court fee payable varies with the amount at which the relief sought is valued in the plaint, it is open to the Court, if a question is raised as to the true valuation of the suit, to determine such question. In that case the prayer was for an injunction to restrain the defendant from executing a mortgage decree for Rs. 10,000 and selling the mortgaged properties the value of which was Rs. 80,000. There was also a relief for an injunction restraining the defendant from executing the decree and the relief sought was valued at an imaginary and grossly inadequate figure of Rs. 100. The plaint was not valued upon the basis of any of the reliefs claimed by the plaintiff, and it was held that the relief being in respect of the mortgage decree for Rs. 10,000 it ought to have been valued at that sum. Accepting the aforesaid principle in the present case the plaintiff seeks to set aside the decree worth Rs. 40 and the sale of property which fetched Rs. 40 at the Court-sale, and he also seeks an injunction to restrain the defendant from taking possession of the property. This case differs from all the cases cited by the parties, inasmuch as the injunction is sought against the defendant taking possession of the property which would deprive the plaintiff of the mortgage of Rs. 300, and that should be the criterion for fixing the value of the relief sought by him. If the property had not been sold and the injunction was only to prevent the property being sold, then the amount of the decree would have been the basis for calculating the court-fee payable. Here the sale has already taken place and the plaintiff wants a relief to protect his mortgage over the property, and consequently the reliefs must be valued at Rs. 300, the amount of the zarpeshgi money; and the court-fee must be paid upon that amount.

The order of the Court below is therefore set aside and in lieu thereof it is directed that the plaintiff should pay court-fee upon Rs. 300 within a month after the record is received in the Court below. In the circumstances of the case there will be no order as to costs.