Smt. S.B. Hussain and Another vs The Assistant Accounts Officer, Revenue Unit, TNED and Others

Pratap Singh, J.—This appeal is directed against the order of remand made in A.S. No. 37 of 1985 on the file of Sub-Court, Tirupattur.

Short facts are: The appellants had filed the suit for a declaration that the demand for payment of compensation, penal charges, as per the first

defendant''s demand notice dated 28.7.1980 is illegal and unlawful and arbitrary and without any basis and consequential injunction. The

defendants resisted the claim taking various contentions, inter alia contending that the court-fee paid by the plaintiffs u/s 25(d) of the Court fees Act

for the declaratory relief is not correct. Alter trial, the learned Principal District Munsif, Tirupattur had found that the court-fee paid by the plaintiffs

is correct and has also found the case of the plaintiff well founded and has decreed the suit. Aggrieved by the same, the defendant took up the

matter in appeal in A.S. No. 37 of 1985 before the Sub-Judge, Tirupattur. The learned Sub-Judge took up the question of court-fee as a

preliminary point and had held that the court-fee paid by the plaintiffs u/s 25(d)of the Court-fees Act is not correct and court-fee ought to have

been paid ad valorem on the amount mentioned in the demand notice and has remitted the matter back to the trial court for collecting court-fee as

aforesaid and for proceeding further. Aggrieved by the order of remand, the plaintiffs have come forward with this appeal.

Mr. M.I. Meera Sahib, the learned Counsel appearing for the appellants, would submit that the relief sought for is an intangible one and the

proper section of law, applicable is only 25(d) of the Court-fees Act and the court below is not correct in holding otherwise. Per contra, Mr. C.S.

Krishnamurthy,. the learned Counsel appearing for the respondents and Mr. V. Vivekanandan, the learned Government Advocate, who appeared

on notice from this Court, would submit that the substance of the relief is to nullify the demand for payment of penal charges of Rs. 41,556.20

which was reduced by the second defendant to Rs. 22,537.80 and that ad valorem court-fee should be paid, on that amount.

I have carefully considered the submissions made by rival counsels. For the purpose of convenience, Section 25(d) of Court-fees Act needs

extraction. It reads as follows:

In a suit for a declaratory decree or order, whether with or without consequential relief, not falling u/s 26-

(a)...

(b)...

(c)...

(d) in other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief

sought is valued in the plaint or on rupees four hundred, whichever is higher.

Section 25(a) pertains to a case where the prayer is for declaration and possession of the property to which declaration relates to. Section 25(b)

relates to a case where the prayer is for a declaration and for consequential injunction and relief sought for is with reference to any immovable

property. Section 25(c) relates to a case where prayers relate to the plaintiffs exclusive right to use, sell print or exhibit any mark, name, book etc.

In the instant case, the declaratory prayer in the plaint reads as follows:

The plaintiffs therefore pray that this Hon''ble Court may be pleased to pass a decree declaring that the demand for payment of compensation,

penal charges as per the 1st defendant''s demand notice dated 28.7.1980 is illegal and unlawful and arbitrary and without any basis.

The abovesaid declaratory relief will not fall u/s 25(a), (b) or (c) and so necessarily it would fall within Section 25(d) of the Court-fees Act and on

the plain language of the section, it is apparent that the declaratory relief prayed in this case, would clearly fall within Section 25(d) of the Court

Fees Act In Ramu Udayar v. Tamil Nadu Electricity Board 1990 T.L.N.J. 107, Justice Ratnam (as he then was) had held in a similar case that the

relief of declaration prayed for, if granted, would have the; effect of nullifying the demand made in the order and when the relief of declaration has

been properly valued under the provisions of the Tamil Nadu Court-fees and Suits Valuation Act, it would be unnecessary for the plaintiff to pay

ad valorem court-fee on the amount mentioned in the order, in respect of which declaratory relief is sought for. In Selvakumar Rice and Oil Mills,

Salem v. Tamil Nadu Electricity Board, 99 L.W. 740,a single Judge of this Court had held, in a suit against the Electricity Board for declaration

that the application of tariff code is arbitrary and illegal and ultra vires and for injunction restraining the defendants Board from collecting the

amount where the plaintiff had valued the suit under S.25(d) of the Court-fees Act, that the court-fee paid by the plaintiff is correct. In Dr. Arthur

Nathanial and Anr. v. Dr. R.P. Nathanial (1962)1 M.L.J. 420, Chief Justice Ramachandra Iyer had held that where the right claimed in the plaint is

an intangible one, Section 25(d) of the Court-fees Act is applicable. In that case, the suit was for a declaration that a particular business carried on

under a specified name and style belongs to the plaintiff and for injunction. From the language of Section 25(d) of the Court-fees Act and the

catena of decisions referred to supra, the following propositions of law emerge:

(1) In a case where declaration sought for is with regard to a right which is an intangible one, the court-fee payable is u/s 25(d) of the Tamil Nadu

Court-fees and Suits Valuation Act.

(2) Even in a case where the relief of declaration prayed for, if granted, would have the effect of nullifying the demand made under the impugned

proceedings; when the relief of declaration has been properly valued under the provisions of Tamil Nadu Court-fees and Suits Valuation Act, it

would be unnecessary for the plaintiff to pay ad valorem court-fee on the amount mentioned in the impugned order or proceedings, in respect of

which declaratory relief is sought for.

Per contra, Mr. C.S. Krishnamurthy, would rely upon Mahaveerchand Vs. Town Panchayat, , in which Justice Sathiadev has held that a court

must be guided by the substance of the relief prayed for by taking in to account the entirety of the pleas raised and reliefs prayed for in the plaint

and in that case, the relief sought for is capable of valuation and ad valorem court-fee should be paid. I am clear that this ruling cannot be applied

to the facts of this case, in view of the rulings which I have referred to supra and for the reasoning which I have given above. Mr. C.S.

Krishnamurthy, would submit that the case may be referred to a Bench. When the law and a catena of decisions of this Court has made the

position clear, I do feel that this is not a case for referring to a Bench.

In view of what I have stated above, the finding of the lower appellate court that court-fee paid u/s 25(d) of the Court-fees Act is not correct

has to be necessarily set aside. The court-fee paid is correct and consequently the order of remand made by the lower appellate Court has to be

set aside. C.M.A. No. 769 of 1992 is allowed, setting aside the order of remand of the lower appellate court. The lower appellate court is

directed to take the appeal to its original number and dispose it of expeditiously: No costs.