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Hafizulla Latiff Saha Vs. Wakf Committee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 368 of 1944
Judge
Reported inAIR1946Bom167; (1945)47BOMLR859
AppellantHafizulla Latiff Saha
RespondentWakf Committee
Excerpt:
.....17(iii) - suits valuation act (vii of 1887), section 8-bombay civil courts act (xiv of 1869)-suit for declaration-cognizance of such suit-mussulman wakf act (xlii of 1923)-mussulman wakf (bombay amendment) act (bom. xviii of 1935).;a suit to obtain a declaration that certain property is not wakf within the meaning of the mussalman wakf act, 1923, and is not liable to registration under the bombay amendment act, 1935, is governed by section 7(iv)(c) and not by article 17(iii) of the court-fees act, 1870. such a suit is, therefore, cognisable by a subordinate judge of the second class although the property is valued over rs. 5,000.;midnapur zemindary company, ld. v. secretary of state for india (1916) i.l.r. 44 cal. 352, relied on. - - i fail to see why the expression..........pointed out, the plaintiff has asked for a declaration that the properties are not wakf. the only relief consequential upon that declaration which he could ask in this suit was a further declaration that the properties are not liable to registration under the bombay amendment act of 1935. in doing so to my mind he has complied with the provisions of section 7(iv)(c) of the court-fees act.3. my attention has been drawn by mr. dharap to a decision of the calcutta high court in midnapur zemindary company, ld. v. secretary of state for india i.l.r (1916) cal. 352. in that case the plaintiffs prayed for a declaration (a), that they were occupancy ryots and (b) that the entry in the record-of-rights showing them as tenure-holders was a nullity; and the court held that the suit-fell under.....
Judgment:

Chagla, J.

1. This application raises the question of the pecuniary jurisdiction of the learned Second Class Subordinate Judge's Court at Panel. The plaintiff filed the suit for a declaration that certain darga and other properties belonging to the darga were not wakf within the meaning of the Mussalman Wakf Act of 1923 and were not liable to registration under the Bombay Amendment Act of 1935 The learned Subordinate Judge held that the Court had no jurisdiction to try the suit as it exceeded the pecuniary jurisdiction of the Court. He held that the value of the properties exceeded Rs. 8,530. From that decision of the learned Subordinate Judge an appeal was preferred to the learned Assistant Judge of Thana who confirmed that decision. It is from the order of the learned Assistant Judge that this revisional application is preferred.

2. The main question that falls to be determined in order to ascertain whether the trial Court had pecuniary jurisdiction to try the suit or not is whether this suit falls under Section 7 (iv)(c) of the Court-fees Act, 1870, or whether it falls under Article 17 (iii) of the second schedule to that Act. The view that the lower appellate Court took was that this was a suit to obtain a declaratory decree where no consequential relief was prayed and, therefore, it fell under Article 17, Sub-clause (iii), and Section 8 of the Suits Valuation Act, 1887, did not apply. The contention, on the other hand, of Mr. Dharap for the petitioner is that the suit falls under Section 7(iv)(c) of the Court-fees Act and is a suit which asked for a declaratory decree and also a consequential relief following upon the declaration. It is clear to my mind that what the plaintiff wants in this suit is first and foremost a declaration that the properties are not wakf within the meaning of the Mussalman Wakf Act of 1923. If he gets a declaration from the Court, he wants further a declaration that the properties are not liable to registration under the Bombay Amendment Act of 1935. Now it is to be noted that the plaintiff can only get the second declaration provided he gets the first; or, in other words, the second declaration is consequential upon the first. It has been argued by Mr. Dixit on behalf of the opponent that in order that a suit should fall within Section 7(iv)(c) of the Court-fees Act, the consequential relief prayed for by the plaintiff must be a relief other than a declaratory relief. In this case, according to Mr. Dixit, the most that can be said is that the plaintiff has asked for two declarations in which case, if the decree is passed, it would still be a declaratory decree without any consequential relief. I fail to see why the expression 'consequential relief' in Section 7(iv)(c) of the Act should be read as consequential relief other than a declaration. It is importing into the section words which do not find a place there. All that Section 7(iv)(c) requires is that the plaintiff must sue for a declaratory decree; and if it is open to him to get any consequential relief following upon the declaration then, if he asks for such a relief, the suit falls within that sub-clause. Now in this case, as I have pointed out, the plaintiff has asked for a declaration that the properties are not wakf. The only relief consequential upon that declaration which he could ask in this suit was a further declaration that the properties are not liable to registration under the Bombay Amendment Act of 1935. In doing so to my mind he has complied with the provisions of Section 7(iv)(c) of the Court-fees Act.

3. My attention has been drawn by Mr. Dharap to a decision of the Calcutta High Court in Midnapur Zemindary Company, Ld. v. Secretary of State for India I.L.R (1916) Cal. 352. In that case the plaintiffs prayed for a declaration (a), that they were occupancy ryots and (b) that the entry in the record-of-rights showing them as tenure-holders was a nullity; and the Court held that the suit-fell under Section 7, Sub-clause (iv)(c), of the Court-fees Act, inasmuch as the second declaration was a consequential relief within the meaning of that sub-clause. The facts of that case are very similar to the facts I am considering in this revisional application. There too the main declaration sought was that the plaintiffs were occupancy ryots. On that declaration being given by the Court, the other declaration that the entry in the record-of-rights showing them as tenure-holders was a nullity would follow as a consequence. Undoubtedly the matter would be different if the plaintiff in a suit asked for two independent declarations. Then obviously the suit would not fall under Section 7, Sub-clause (iv)(c), of the Court-fees Act. But when in a suit the plaintiff asks for two declarations and the second declaration is not an independent declaration but merely one which is consequential upon the first, to my mind it is a suit to obtain a declaratory relief where consequential relief is prayed for.

4. The order of the lower appellate Court was, therefore, wrong and must be set aside. The suit will go back to the learned Subordinate Judge to proceed with on merits. The opponent must pay the costs of this application and the costs before the lower appellate Court.

5. Rule made absolute.


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