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Manohar Ganesh Vs. Bawa Ramcharandas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom219
AppellantManohar Ganesh
RespondentBawa Ramcharandas and ors.
Excerpt:
.....that be so, and the residue to be made good to the temple is small, it would be absurd and unjust to estimate the court fee by the whole amount of the offerings. although clause iv of section 7 does say that the fee shall be 'according to the amount at which the relief sought is valued in the plaint,'which plaint is prepared by the plaintiff, or his pleader, and the fixing of the valuation is thus apparently left to them, and, as we have seen, with strong reasons why it should be so left;.....enactment, at liberty to put an arbitrary value on his claim, but should estimate the relief sought at its actual pecuniary value to himself or to the hindu devotees of shri ranchod raiji whom he may represent. this, he said, the plaintiff had not done in valuing his suit at rs. 100, it appearing on the face of the plaint itself that he asserted the offerings to be worth several lakhs of rupees. the first class subordinate judge further held that, if the plaintiff (who refused to stamp his plaint more highly) were right in valuing his claim at rs. 100, he (the first class subordinate judge) had not jurisdiction to entertain the suit, inasmuch as dakor, where the property to which the suit related is situated, is within the local jurisdiction of the second class subordinate.....
Judgment:

Michael Westropp, C.J.

1. It appears that in the lower Court the plaintiffs pleader contended that this suit falls, in respect of the Court fees properly payable upon the plaint, within Article 17, cl. iii of Schedule II of the Court; Fees' Act (VII of 1870), as being a suit 'to obtain a declaratory decree where no consequential relief is prayed,' and, therefore, only requiring a stamp of 10 rupees. Such a stamp is more than sufficient for a suit of the value of, Rs. 100. The First Class Subordinate Judge, however, decided that the plaint did not come within that article, but rather within Section 7, Clause 4, pl. (c), of the same Act, inasmuch as he was of opinion that the plaintiff not only sought a declaration of his right to take an account of the property and to inspect the Shavaks' (defendants') books, but also consequential relief, namely, production of the property dedicated to the idol, and that an account should be actually furnished to him from the books kept in the bhandar (treasury). He also held that the plaintiff was not under the last-mentioned enactment, at liberty to put an arbitrary value on his claim, but should estimate the relief sought at its actual pecuniary value to himself or to the Hindu devotees of Shri Ranchod Raiji whom he may represent. This, he said, the plaintiff had not done in valuing his suit at Rs. 100, it appearing on the face of the plaint itself that he asserted the offerings to be worth several lakhs of rupees. The First Class Subordinate Judge further held that, if the plaintiff (who refused to stamp his plaint more highly) were right in valuing his claim at Rs. 100, he (the First Class Subordinate Judge) had not jurisdiction to entertain the suit, inasmuch as Dakor, where the property to which the suit related is situated, is within the local jurisdiction of the Second Class Subordinate Judge of Amreth, and the claim, being assumed to be under Rs. 5,000 in value, should have been brought in the Court of the latter in obedience to Section 6 of the Civil Procedure Code (VIII of 1859).

2. The plaint was accordingly rejected with costs.

3. The plaintiff has appealed to this Court against that decree, alleging that the plaint was properly valued and stamped, and ought not to have been rejected, seeking, as he contends, a declaratory decree merely. In his Memorandum of Appeal he 'declares' that 'the Value of the subject-matter, relating to which he seeks to have his right to taking an account declared in this suit, is worth over Rs. 5,000.'

4. The defendants allege by their counsel here that the decree of the First Class Subordinate Judge is final, and, therefore, that the present appeal will not lie. His decision must, we think, be regarded as resting on the ground that the plaint has not, for the purposes of the Court Fees' Act (VII of 1870), been properly valued and stamped. Viewing his decision in that light, we are of opinion that it was final, and that it is not the proper subject of appeal. So recently as the 14th instant it has been reluctantly held here, in Narayan Madhavrav Naik v. The Collector of Thana I.L.R. 2 Bom. 145, that, unless the question of the amount of Court fees properly chargeable on a plaint be wrongly decided, by the Court of First Instance, to the detriment of the revenue, the decision of that Court is final, and, consequently, where that Court has wrongly decided to the detriment of the subject only, but to the advantage of the revenue, there is no appeal--see Court Fees' Act (VII of 1870), Section 12, Clause 1 and 2. Perhaps the less said as to the equity of such an enactment, the better. A copy of the judgment of this Court in that case shall be forwarded to the Court below. The reasons which constrained this Court so to decide, are fully given there, and need not be repeated here. We must hold that, as the decision of the First Class Subordinate Judge proceeded on the insufficiency of the valuation and stamp fox the purposes of the. Court. Fees' Act, and was not to the detriment of the revenue the present appeal does not lie.

5. Assuming, however, that the appeal would lie, we think that the mode in which the plaintiff has framed his plaint, is so ambiguous that it would be difficult to say, first, whether it is to be regarded as merely praying a declaration that the plaintiff is entitled to require the defendants to account to him, and to permit him to inspect their books, in which case it would be simply a suit for a declaratory decree without seeking consequential relief, and so within Article 17, cl. iii of Schedule II of the Court Fees' Act (VII of 1870), and it would be the first instance, that we have met, in which the plaintiff sought merely for a declaration of liability on the part of the defendants to account to him without asking for the account itself; or, secondly, whether it is to be deemed to pray not only for such a declaration, but also for a positive order in the nature of a mandatory injunction for the production of the defendants' books and the offerings--which order would be consequential relief; or, thirdly, whether it is to be regarded as praying the declaration as above, and a positive decree for an account to be taken by the Court, and for the production of the books and offerings--which decree for account and production would be consequential relief, A circumstance unfavourable to the supposition that the plaint is to be viewed as praying an account to be taken by the Court, is that, if this were intended, we might expect the plaint to pray for an order for payment of any balance which, on the taking of the account by the Court, might be found due from the defendants to the temple, or a refund, or restoration of any moneys or property which might be missing or unaccounted for, but there is not any such prayer in the plaint.

6. If the plaint is to be deemed to be either of the 2nd or 3rd species abovementioned, it would range under Section 7, cl. iv, Article (c), as being a suit 'to obtain a declaratory decree or order where consequential relief is prayed,' and also within Article (d) of the same clause, being a suit 'to obtain an injunction'; and, if the plaint be of the 3rd species, it, being a suit 'for accounts,' would fall under Article (f) of the same clause. Assuming the plaint to be of the 2nd or 3rd species above mentioned, a nice question would arise upon the 17th section of the Court Fees' Act, viz.: Would the plaint require separate stamps under Articles (d) and (f), clause iv, Section 7, in respect of the prayer for an injunction for production of books and for an account as 'distinct subjects,' or, inasmuch as these are 'consequential relief,' would they be sufficiently covered by the stamp under Article (c) of the same clause--the suit being one 'to obtain a declaratory decree or order, where consequential relief is prayed,' as contemplated by that article--and whether, if the declaration sought require a stamp, and the account sought another stamp, the prayer for an injunction or order for production of books is not merely ancillary to the taking of the account, and, therefore, not a distinct subject.

7. The learned Judge, in speaking of Section 7, cl. iv., of the Act, says that it is clear that the plaintiff cannot, under that clause, 'set any arbitrary valuation upon the relief sought.' It is not incumbent upon us now to decide, and we do not purpose to express any opinion upon that point. Whenever it presents itself under such circumstances as to call for a decision, it will be necessary to consider whether the provision that the amount of fee payable in suits falling within that clause shall be computed 'according to the amount at which the relief sought is valued in the plaint' is so inconsistent with that portion of Section 31 of the Civil Procedure Code (Act VIII of 1859), which permits the Court receiving the plaint to revise the valuation of the claim, as to render that portion of Section 31 inoperative in suits within Section 7, cl. iv, of the Court Fees' Act, notwithstanding the concluding passage in that clause which enacts that, 'in all such suits, the plaintiff shall state the amount at which he values the relief sought, and the provisions of the Code of Civil Procedure, Section 31, shall apply as if for the word 'claim,' the words 'relief sought' were substituted.' It is observable in all of the ten clauses in Section 7, with the single exception of clause iv, the Legislature has prescribed an ad valorem system or some guide whereby the valuation for the purposes of the Act may be ascertained. But the nature of the suits comprised in the six articles of that clause, which in some instances renders it impossible, [ex gr. Article (a),] and in others, either impossible or generally extremely difficult to lay down an even approximately fair ad valorem scale as a means of fixing the Court fee in such suits, would appear fully to account for the Legislature leaving it to the plaintiff to name the valuation, as it prima facie appears to do in enacting that the amount of fee shall be computed 'according to the amount at which the relief sought is valued in the plaint.' In the case of suits to recover title-deeds, or for an injunction; or for an easement, all of which would come within clause iv, it would generally be impossible to name any except a fancy value. In a suit to enforce a right to a share in joint family property it is very difficult, and especially so for a parcener other than the family manager, who usually is a defendant, to know with any accuracy what the value of the share may be. All charges on the family property must be ascertained before an approximation can be made to the value of the property which will be divisible amongst the parceners. So, too, in a suit for an account, in many cases the party suing for the account, would be quite unable to state what the balance due to him may be. In the present case the plaintiff, from whom the defendants have withheld their books, would not, in all probability, be able to make any trustworthy estimate of the deficiency, if any, in their accounts, and it would be highly unreasonable to require him to pay down a large sum as Court fee on the contingency that the deficiency or balance due to the temple is large. If the plaintiff be at a difficulty in estimating that deficiency, the making good of which must be the object of this suit (if we are to regard it as a suit for an account to be taken by the Court) the learned Judge would find much greater difficulty in conjecturing what that deficiency may be. It is quite possible that the bulk of the dedicated property is forthcoming, or that its expenditure may be satisfactorily accounted for. If that be so, and the residue to be made good to the temple is small, it would be absurd and unjust to estimate the Court fee by the whole amount of the offerings. Although clause iv of Section 7 does say that the fee shall be 'according to the amount at which the relief sought is valued in the plaint,' which plaint is prepared by the plaintiff, or his pleader, and the fixing of the valuation is thus apparently left to them, and, as we have seen, with strong reasons why it should be so left; although also there seems to be, if not absolute repugnancy, at least some incongruity in treating the Judge as at liberty by Section 31 of the Civil Procedure Code to pronounce the relief sought to be 'improperly valued'; and, lastly, although a field for the application of that section would still remain to the Judge in his power to reject the plaint, if not stamped in accordance with the valuation therein stated, it may be that, nevertheless, the concluding passage in clause iv, Section 7 of the Court Fees' Act is too express to admit of a limitation of the power of the Judge to that duty, and leaves him the right to revise the valuation placed on suits under clause iv by the plaintiff. Assuming.

8. The decision as to the inadequacy of the Court fees being final, we refrain from deciding the question of jurisdiction, and dismiss the appeal with costs.


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