The legal necessity for a declaration of right before an injunction can be granted determines whether a suit falls under Section 7(iv)(c) or 7(iv)(d) of the Court Fees Act, 1870, for the purpose of determining the court fees payable.

1. This is a petition for revision against an order of the trial Court holding that the suit which has been filed by the petitioner was one for declaration, and injunction has been claimed as a consequential relief and, therefore, ad valoerm Court-fee was payable apparently under S. 7(iv)(c) of the Court-fees Act. It was held that the plaint was not adequately valued for purposes of court-fee and jurisdiction.

2. The plaintiff had instituted a suit for injunction alleging that he was a co-share in the truck to the extent of 1/2 which was in possession of the defendant and that the defendant be restrained from disposing it of. The defendant foiled a written statement denying the claim of the plaintiff and averring that the plaintiff had no interest as an owner in the truck. The Court below was of the opinion that where the property was not in possession of the plaintiff where the defendant also challenged his title, it could not be regarded as a suit for injunction alone. The view of the trial Court does not appear to be sustainable. In the first instance it is well settled that it is only the valuation given by the plaintiff that has to be considered for purposes of deciding the question of the valuation of the suit for purposes of court-fee and jurisdiction. The suit which the plaintiff has filed, is essentially for injunction and while claiming that relief he has asserted that he had 1/2 share in the truck in question. That does not mean that there is any legal necessity for the plaintiff to get a declaration of his right before he can get an injunction.

The correct test which has been laid down in decided cases is that where there is any legal necessity for the plaintiff to get a declaration of his right before he can get an injunction to protect it the suit will fall under S. 7(iv)(c) even though the plaintiff sought declaration by means of averments in the body of plaint and not prayed for declaration specifically at the end of the plaint. When there is some legal obstacle which has to be removed before a consequential relief can be granted, it is incumbent upon the plaintiff to pray for a declaration which will have the effect of removing that obstacle. If the plaintiff merely avers a title which can be established without the cancellation of a document or the nullification of any adverse title and only the reliefs are claimed which will naturally flow from the establishment of the title which he avers, it is not necessary for the plaintiff to pray expressly for a declaration of that title and the suit would fall under S. 7(iv)(d)and not under S. 7(iv)(c) and the court-fee would be payable in such cases under S. 7(iv)(d) vide Venkata Ranga Rao V/s. Sita Ramchandra Rao, AIR 1941 Mad 91.

In Veerappa V. Arunachalam, AIR 1936 Mad 200 it was held that the fact that the question of title also may have to be incidentally gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for injunction. In that case there can be no objection to the maintainability of a suit for only an injunction. The decision of a Bench consisting of Derbyshire C. J. and B. K. Mukherjea J. (as he then was) in Binode Behari V/s. K. C. Biswas & Co., AIR 1940 Cal 552 appears to have been based on the same principles. A Full Bench of the Mysore High Court in H. R. Patel V/s. Venkatalakshamma, (S) AIR 1955 Mys 65 (FB) expressed a similar view making it quite clear that where the relief sought by the plaintiff was for an injunction then it could not be regarded to be the consequential relief unless it could not be granted except on declaration of the right of the plaintiff and not merely on proof of that right.

It was observed that the plaintiff in a suit for recovery of possession of land, if entitled to possession on proof of title was bound to pay court-fee on the basis that it was a suit for possession only though as a matter of fact there was prayer in the