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1972 Supreme(Pat) 129
PATNA HIGH COURT
G.N.Prasad, J.
Bishwanath Agarwalla
Versus
Nathi Bai Sharma
Civil Revision No. 1210 of 1971 ;
Decided On : JULY 27, 1972
A suit for declaration that a decree is without jurisdiction, null, void, and inoperative is a suit for declaration with consequential relief, and the plaintiff is liable to pay ad valorem court fees under Section 7(iv)(c) of the Court Fees Act, 1870.
Headnote:
COURT FEES - Suit for declaration that a decree is without jurisdiction, null, void and inoperative - Whether a suit for declaration only or for declaration with consequential relief - Court Fees Act, 1870, Section 7(iv)(c).
Fact of the Case:
The petitioner filed a suit for declaration that a decree passed against him in a previous suit was without jurisdiction, null, void, and inoperative. The court demanded ad valorem court fees on the plaint, rejecting the petitioner's contention that he was liable to pay a fixed court fee of Rs. 22.50, as the suit was purely for declaration only.
Finding of the Court:
The court held that the suit was not merely for declaration but for declaration with consequential relief, as the plaintiff could not get the declaration sought without setting aside the decree passed against him.
Issues: Whether the suit was for declaration only or for declaration with consequential relief.
Ratio Decidendi: The court relied on the principles laid down in Ramdeo Singh v. Raj Narain Singh (AIR 1949 Pat 278) and Shyam Sunder Singh v. Kaluram Agarwala (AIR 1949 Pat 291) to hold that a party to a decree cannot ignore it as a complete nullity and must seek to set it aside if it is vitiated by want of jurisdiction or other proper cause.
Final Decision: The court dismissed the petitioner's application, holding that the order of the learned Subordinate Judge demanding ad valorem court fees was correct.
G.N.Prasad, J.
1. The petitioner is the plaintiff of Title Suit No. 34 of 1971 in tie Court of the First Subordinate Judge at Dhanbad. He has filed this application in revision against the order of the learned Subordinate Judge dated the 23rd August, 1971, demanding court-fee on the plaint on ad valorem basis, after rejecting the petitioners contention that he is liable to pay a fixed court-fee of Rs. 22.50, inasmuch as the suit which he had instituted is purely one for declaration only. According to the learned Subordinate Judge, the suit is really one for declaration with a consequential relief, for which the plaintiff is liable to pay ad valorem court-fee amounting to Rs. 618.75.
2. Mr. Bishwanath Agrawal, who has appeared on behalf of the petitioner, has taken me through the plaint, a copy of which is Annexure "1" to the revision application. Learned Counsel has drawn my attention to the reliefs as claimed in paragraph 19 of the plaint, which are to the following effect:
"That the plaintiff therefore prays (a) that a decree may be passed in favour of the plaintiff as against the defendant declaring that the decree dated 2-8-67 passed by Munsif 1st. Court in Title Suit No. 193 of 1966 is without jurisdiction, null, void and inoperative and bad and is not executable;
(b) A decree for costs of the suit;
(c) A decree for any other or further reliefs to which the plaintiff is entitled to."
Learned counsel has also drawn my attention to paragraph 14 of the plaint which reads: "That the. decree is a nullity, without jurisdiction, void and inoperative and the defendants have no right to execute the same."
3. It is well established that in order to determine whether a suit is one for a mere declaration or for a declaration and consequential relief, the Court must look to the real nature of the plaint, shorn of its verbiage, and decide what is its real substance, as opposed to its ostensible form. Even where a mere declaration is sought, the Court must look to the real nature of the plaint and consider whether or not the plaintiff has also sought some consequential relief by necessary implication. If the Court finds that the suit is for a mere declaration with no consequential relief, then it cannot call upon the plaintiff to pay ad valorem court-fee. On the other hand, if it finds that though ostensibly the suit is one for a mere declaration, but some consequential relief is involved therein by necessary implication, then it must call upon the plaintiff to pay court-fee on ad valorem basis. I am tempted in this context to repeat what I said in Ramkishun Mahton V/s. Smt. Nero Devi, AIR 1965 Pat 486. This is what I said at page 488 of the report
"In approaching this question, we must bear in mind that there is a distinction between decrees or documents which are wholly void and decrees or documents which are not wholly void, but voidable on account of causes like fraud, mistake or undue influence. The importance of this distinction lies in the fact that so far as wholly void decrees or documents are concerned, they do not require to be set aside since they have no existence in the eye of law and only a finding of fact is necessary to give the plain plaintiffs the necessary relief. In cases of voidable decrees or document1;, on the other hand, it is necessary to have them set aside before the relief claimed in the plaint can be granted to the plaintiff. It is well established that in cases of the latter category, the Court has to make a declaration in the true sense and, therefore, the true nature of the relief claimed in such cases, is that of declaration and consequential relief, as envisaged in Section 7 (iv) (c) of the Court-Fees Act. But the cases or the former category, stand on a different footing, because in those cases no declaration is necessary in the true sense and only a finding of fact is necessary to the effect, that the impugned document or decree is wholly void and as such it has no existence in the eye of law
