Suit for declaring demand notice illegal filed.

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

2. 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 27. 1980 is illegal and unlawful and arbitrary and without any basis and consequential injunction. The defen-dants resisted the claim taking various contentions, inter alia contending that the court-fee paid by the plaintiffs under Sec.25(d) of the Court-fees Act for the declaratory relief is not correct. After 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 under Sec.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.

3. 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.Vive-kanandan, 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. 4. I have carefully considered the submissions made by rival counsels. For the purpose of convenience, Sec.25(d) of Court-fees Act needs extraction. It reads as follows:

“25. In a suit for a declaratory decree or order, whether with or without consequential

relief, not falling under Sec.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.” Sec.25(a) pertains to a case where the prayer is for declaration and possession of the property to which declaration relates to.

Sec.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. Sec.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 27. 1980 is illegal and unlawful and arbitrary and without any basis.”

The above said declaratory relief will not fall under Sec.25(a), (b) or (c) and so necessarily it would fall within Sec.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 Sec.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