Sm. Anguri Devi vs Gurnam Singh

Harnam Singh, J.—To appreciate the point arising in Civil Revision No. 875 of 1949 the material facts of the case must be set out in somo detail.

Sm. Anguri Devi instituted Civil suit No. 79 of 1949 on 2-2-1949, for declaration that she was a tenant in respect of the shops in suit and for possession of those shops on the allegation that Gurnam Singh Defendant had unlawfully and forcibly taken possession of those shops on 16-11-1947. Plaintiff also claimed compensation for wrongful use and occupation of the shops at Rs. 75 per month for the period between 16-11-1947 and 25-1-1949. The suit has been valued u/s 7(iv)(e), Court-fees Act at Rs. 900 for purposes of Court-fee and jurisdiction.

Gurnam Singh Defendant urged a preliminary objection at the trial that that subject-matter of the suit had not been correctly valued for purposes of Court-fee and jurisdiction and pleaded that the Plaintiff was liable to pay ad valorem Court-fee u/s 7(v), Court-fees Act on the market value of the shops in suit.

On the pleadings the trial Court fixed the following issue : Whether the plaint has been correctly valued for purposes of Court fee and jurisdiction?

Finding that the suit fell u/s 7(v), Court-fees Act, hereinafter referred to as the Act, the trial Court directed the Plaintiff to amend the plaint, state therein the market value of the shops in suit, and to pay ad valorem Court-fee on that market value by 3-8-1949.

Sm. Anguri Devi applies to this Court u/s 115, Code of Civil Procedure, for the revision of the order passed by the trial Court on 15-7-1949.

Mr. R.L. Sarin, learned Counsel for the Respondent, urges a preliminary objection that no petition for the revision of the order passed by the trial Court on 15-7-1949, is competent in this Court. The argument raised is that Section 115 applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it, Basing himself on the decision in Balkrishna Udayar v. Vasudev Ayyar AIR 1947 P.C. 71 : 40 Mad. 793, Mr. Sarin urges that Section 115 is not directed against conclusions of law or facts in which the question of jurisdiction is not involved. I am not impressed with the contention raised.

In a number of cases cited in books it has been said that an order demanding additional Court-fee is revisable u/s 115 as in such cases there is a refusal to exercise jurisdiction in the matter and try the case on the merits unless additional Court-fes demanded is paid. Authority for this view is to be found inter alia in Ratnavelu Pillai and Another Vs. Varadaraja Pillai and Another,

Considering the merits of the case I think that the trial Court was right in holding that the suit falls within Section 7(v) of the Act. In the suit out of which these proceedings have arisen the relief for possession is not incidental to the declaratory relief. Section 7(iv)(e) of the Act contemplates a suit in which the declaratory relief is the basic relief and the consequential relief is asked for as incidental to the declaratory relief. Indeed, in order to bring a suit within Section 7(iv)(e) the two reliefs are to be so connected together that if the Court in the exercise of its discretion refuses to pass a declaratory decree the claim for consequential relief also fails. Considering that this test is not fulfilled in the present case I have no hesitation in affirming the decision of the trial Court that the present suit falls within Section 7(v)(e) of the Act.

Having made these observations, I pass on to consider the value that should be put upon the subject-matter of that suit, since u/s 7(v) it is the value of the subject-matter that determines the value of the suit. On this point Mr. Gujral basing himself on the rule laid down in Ram Raj Tewari v. Girnandan Bhagat 15 ALL. 63 : 1892 A.W.N. 210 , Mt. Barkatunnisa Begum Vs. Mt. Maniza Fatma and Another, and Mohammad Eshaque v. Mohammad Amin AIR 1948 Cal. 312, maintains that in the present case Court-fee is to be paid on the value at which the Plaintiff values her right to the possession of the shop in suit. In other words the argument raised is that the subject-matter of the suit ought not to be regarded as the two shops with all the rights involved therein but the right of Sm. Anguri Devi to the possession of the shops for the period of the lease. As stated above, the real question for determination is the value of the subject-matter of the suit and that involves the determination of the subject-matter itself. In Ram Raj Tewari v. Girnandan Bhagat 15 ALL. 63 : 1892 A.W.N. 240 , Mt. Barkatunnisa Begum Vs. Mt. Maniza Fatma and Another, and Mohammad Eshaque v. Mohammad Amin AIR 1948 Cal. 312 , the subject-matter was not considered to be the property ifself although it was the property itself that possession was sought. In all such cases as appears from Section 7(v) the object of the suit is "the possession of land, houses or gardens" while the subject of the suit is "land, houses or gardens.'''' Clearly the subject of the suit is not the same thing as the object of the suit. That being so, Court-fee in the present case is to be paid on the market value of the shops in suit. Authority for this proposition is to be found in Ratilal Manilal Vs. Chandulal Chhotalal,

In coming to the conclusion set out in the preceding para, I feel no difficulty for I find that the view I am expressing receives support from the wording of Section 7(v) itself. The relevant portion of Section 7(v) provides that the amount of fee payable under the Court-fees Act in a suit for the possession of a house shall be computed, where the subject-matter is a house, according to the market value of the house. In plain English Section 7(v) contemplates the subject-matter of a suit for the possession of a house as being the house and there is nothing in Section 7(v) to suggest that the subject-matter of a suit of the type before me is not the house.

Before leaving this judgment I think it necessary to mention that the construction placed upon Section 7(v) of the Act in the cases upon which Mr. Gujral relies avoids the anomaly of valuing a suit for possession according to the value of the entire interest in the property when possession of that property is sought on the basis of a partial interest therein. In the noble words of Macklin J. in Ratilal Manilal Vs. Chandulal Chhotalal, hard cases may arise out of Section 7(v) but the law seems to mo as I have said and if the law is harsh, it can always be amended.

For the foregoing reasons I dismiss with costs the petition for the revision of the order passed by the trial Court in civil suit No. 79 of 1949 on 15-7-1949.

Time is given till 2-10-1950, to comply with the order passed by the trial Court on 15-7-1949, and parties are ordered to appear in the trial Court on 14-8-1950.