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High Court Of Himachal Pradesh
H.S.THAKUR
BHAGWAT PARSHAD - Appellant
Versus
MUKAT LAL - Respondent
Civil Revision Petition No. 173 of 1980
Decided On : 01/11/1985
COURT FEES - SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF - VALUATION OF SUIT - COURT FEES ACT, 1870, SECTION 7 (IV) (C) - HIMACHAL PRADESH COURT FEES ACT, 1968, SECTION 7 (IV) (C) - SPECIFIC RELIEF ACT, 1963, SECTIONS 31, 34 - In a suit for declaration with consequential relief, the court fee is to be paid as prescribed under section 7 (iv) (c) read with the proviso at the end and paragraph (v) of section 7 of the Court Fees Act, 1870. The market value of the property in dispute is the basis for determining the court fee.
Fact of the Case:
Plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from alienating, transferring, or creating any charge on the ancestral property of the parties. The plaintiff also obtained a temporary injunction against the defendants, but the same was ultimately vacated. The deceased-defendant No. 1 and defendants 2 to 4 soon thereafter transferred the property by sale for a total consideration of Rs. 80,000 in favor of respondents Nos. 5 and 6 (transferee defendants). The plaintiff filed an application for amendment so as to join transferee-defendants as parties to the suit and inter alia also to add a prayer for a declaration that the sale dated 4-7-80 registered at No. 483 is null, void, and illegal and is inoperative against the rights of the plaintiff and the same is not binding on the plaintiff. The trial court allowed the amendment of the plaint and directed the plaintiff to affix the court-fee on the value of the suit property assessed by him at Rs. 40,000.
Finding of the Court:
The court held that the suit was apparently for declaration with consequential relief and that the court fee had to be paid as prescribed under section 7 (iv) (c) read with the proviso at the end and paragraph (v) of section 7 of the Court Fees Act, 1870. The market value of the property in dispute was the basis for determining the court fee. The court also observed that the trial court did not look into the sale-deed wherein the price of the property in dispute was mentioned as Rs. 80,000 and that it was open to the trial court to re-consider the question of payment of court-fee, if raised by the defendants, including the transferee-defendants.
Issues: 1. Whether the suit was for declaration with consequential relief? 2. Whether the court fee was to be paid as prescribed under section 7 (iv) (c) read with the proviso at the end and paragraph (v) of section 7 of the Court Fees Act, 1870? 3. Whether the market value of the property in dispute was the basis for determining the court fee?
Ratio Decidendi: 1. The court relied on the provisions of sections 31 and 34 of the Specific Relief Act, 1963, which envisage that no court shall make any declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The court also referred to the decision in Sukh Lal and others v. Devi Lal and others, AIR 1954 Raj. 170, wherein it was held that a suit for cancellation of a sale deed executed by the father in respect of the joint family property was a suit for declaration with consequential relief and not a suit for a mere declaration. 2. The court held that the suit was for declaration with consequential relief and that the court fee had to be paid as prescribed under section 7 (iv) (c) read with the proviso at the end and paragraph (v) of section 7 of the Court Fees Act, 1870. 3. The court held that the market value of the property in dispute was the basis for determining the court fee.
Final Decision: The court directed the plaintiff to affix court-fees in accordance with the direction made by the trial court on the amended plaint on or before March 1, 1985. In case the direction was not complied with within the aforesaid period, the amended plaint was liable to be rejected.
H. S. Thakur, J—This revision petition is directed against the order and judgment of the learned Sub-Judge (1), Shimla dated 21-8-1980 whereby the learned Sub-Judge while allowing the application for the amendment of the plaint, directed the petitioner (hereinafter to be referred to as the plaintiff) to affix the court-fee on the value of the suit property as assessed by him at Rs. 40,0(0,
2. A few facts as reflected in the revision petition as also in the plaint may be stated. The plaintiff filed a suit for permanent prohibitory injunction restraining the deceased-respondent No. 1 and respondents 2 to 4 (hereinafter to be referred to as the defendants, from alienating, transferring or creating any charge on the ancestral property of the parties as mentioned in the plaint. The plaintiff also obtained a temporary Injunction against the defendants in this behalf, but the same was ultimately vacated on 26th June, 19 0 The deceased-defendant No 1 and defendants 2 to 4 soon thereafter transferred the property by sale for a total consideration of Ks. 80,Uv0 in favour of respondents Nos. 5 and o (hereinafter to be referred to as the transferee defendants). The deed of sale was duly registered and, according to the sale deed, the possession of the property was delivered to the transferee-defendants. Consequently, the plaintiff filed application for amendment so as to join transferee-defendants as parties to the suit and inter alia also to add a prayer for a declaration that the sale dated 4-7-80 registered at No. 48 } is null, void and illegal and is inoperative against the rights of the plaintiff and the same is not binding on the plaintiff. The amended plaint was also filed by the plaintiff thereafter. Both the applications, that is, one for the addition of transferee-defendants as defendants under Order 1, Rule 10 and the other for the amendment of the plaint were allowed by the trial court. However, while allowing the amendment of the plaint, the plaintiff was directed to affix the court-fee on the value of the suit property assessed by the plaintiff at Rs. 40,000, on or before 6-9-1980. The plaintiff thereafter filed an application praying that time be granted to him to pay the court-fee. Before any order was passed on the said application, the plaintiff filed this revision petition and obtained an order from this Court on 5-9-1930, staying further proceedings in the case. 3 It is contended by Mr. K. D Sud, learned Counsel for the plaintiff, that the direction as given by the trial court to affix court-fee at Rs. 40,000, is illegal and deserves to be set aside. It is argued by him that only the allegations in the plaint are to be seen for determining the court-fee to be paid in a suit. It is further stressed by him that court-fee can even be avoided by skilful drafting. According to him, the plaintiff can seek separate district reliefs. It is also contended that the proper course for the court was to allow the amendment and to ask the defendants including the transferee-defendants to fil written statement and in case they raised objections regarding court-fees, such objections could be decided. He has referred to a decision in Smt. Surjit Kaur alias Shankari v. Sawaran Singh and another, AIR 1965 Current Law Journal (Pb) 466, In this judgment, it has been held that in a suit by a person for a declaration that the property sold by an auction sale was his property and was not liable to be sold in execution of a decree passed in a suit in which he was not actually or constructively represented falls under Schedule IT, Article 17 (iii) and not under section 7 (iv) (c) of the Court-fees Act. He has also referred to some other decisions but they are not relevant to the facts of the present case.
4. On behalf of the transferee-defendants, it is contended by Mr, Kailash Chand that the present suit is governed for the assessment of the court-fees under section 7 (iv) (c) of the Court-fees Act. According to him, it is a suit for decl
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