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Kisandas Bankatlal Vs. Ragho Ram Krishna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 189 of 1942
Judge
Reported inAIR1944Bom316; (1944)46BOMLR663
AppellantKisandas Bankatlal
RespondentRagho Ram Krishna
DispositionApplication allowed
Excerpt:
.....main prayer was granted by the court, there was no necessity for asking for an injunction against the defendant, and that at best the prayer for an injunction should be regarded as a prayer for an additional and not consequential relief. 1,000 1,100 80 7. it seems to me clear that the description 'fixed fees 'at the top of schedule ii has now, since the amendments, become a misdescription as far as articles like articles nos. 10. with regard to the last case it does not appear that their lordships had to deal with any enactment like the amended article 17 in schedule ii to the court-fees act......as a fixed fee, though the said article appears in a schedule which is! headed by the words ' fixed fees' as distinguished from schedule i which is headed 'ad valorem fees.' clause (v) of article 17 in schedule ii prescribes that when the amount or value of the property involved does not exceed five hundred rupees the proper fee is rs. 10, and that when the said amount or value exceeds rs. 500, the fee is rs. 15. it is difficult to see how this description differs in principle from that 'table of rate of ad valorem fees leviable on the institution of suits ' under schedule i, for instance :- when the amount or value ofthe subject matter but does not exceed. proper fee.exceeds.rs. rs. rs.1,000 1,100 807. it seems to me clear that the description ' fixed fees ' at the top of schedule.....
Judgment:

Sen, J.

1. This application arises out of a suit brought by the opponents in the Court of the First Class Subordinate Judge at Jalgaon against the petitioner for setting aside five award decrees obtained by the latter in the Second Class Subordinate Judge's Court at Pimpalgasn and for a permanent injunction restraining the defendant from executing the said decrees. The plaintiffs at first framed the suit somewhat differently; instead of seeking to set aside the five decrees they sought a declaration that they had been fraudulently obtained and were hence not binding on them, as well as an injunction against the defendant, and they applied to the Court to be allowed to amend the plaint as above. As' originally framed, the claim in the suit was valued thus : for declaration in the case of each decree Rs. 200 and for injunction in each case Rs. 5. The total valuation thus being Rs. 1,025, it was a suit falling within the description of Section 7, Clause (iv) (c) of the Court-fees Act, i.e. a suit) 'to obtain a declaratory decree where consequential relief is prayed.' To such a suit Section 8 of the Suits Valuation Act would apply : 'Where in suits other than those referred to in the Court-fees Act, 1870, Section 7, paragraphs v, vi, and ix and paragraph x. Clause (d) Court-fees, are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.' The value of the suit as originally framed for purposes of jurisdiction, therefore, would be Rs. 1,025, i.e. it would be a suit triable by a Second Class Subordinate Judge's Court and not by a Court of the First Class Subordinate Judge ; for under Section 15 of) the Civil Procedure Code every suit must be instituted in the Court of the lowest grade competent to try it.

2. The object of the plaintiffs' amendment of the plaint appears to be to bring the suit within the jurisdiction of the First Class Subordinate Judge's Court without paying higher court-fees. This result was sought to be achieved by asking the Court to set aside the five award decrees, besides giving a permanent injunction restraining the defendant from executing the said decrees. The Court allowed the amendment. A suit to 'set aside a decree or award' falls under Clause (v) of Article 17 of Schedule II of the Court-fees Act,as amended by Bombay Act II of 1932. That clause is in the following terms :

17. Plaint or memorandumof appeal in each of thefollowing suits :-(v) to set aside a dec- When the amount or Ten Rupeesree or award ; perty involved does notexceed fivehundred rupees.When the amount or value Fifteenof the Fifteen rupees, Rupeesproperty involved exceedsfive hundred rupees.

3. The plaintiffs' case was that by the amendment they avoided the application of Section 7(iv) (c) of the Court-fees Act and Section 8 of the Suits Valuation Act, that under Article 17 (v) of Schedule II to the Court-fees Act, the Court-fee payable in respect of each decree was Rs. 15 in respect of theprayer to set it aside and Rs. 5 in respect of a prayer for an injunction, the latter1 prayer having been valued at Rs. 5 under Section 7(iv) :(d) of the Court-fees Act, and that s. S of the Suits Valuation Act could not apply to the main prayer, the court-fee payable in respect thereof not being payable ad valorem) under the Court-fees Act, being a fixed fee of Rs. 15 in respect of each decree.

4. The defendant contended that in spite of, the amendment, the suit still remained a suit for declaration and the consequential relief of an injunction, and that, therefore, Section 7(iv) (d), of the Court-fees Act and Section 8 of the Suits Valuation Act still applied. He further contended that art, 17 (v) of schedule! II to the Court-fees Act would apply where the suit was merely to set aside a decree or an award and not where the suit was not only to set aside a decree but also for consequential relief, as in this case, as held in Lakhomal Deepchand v. Deepchand Tolaram A.I.R. [1937] Sind 241. The lower Court has negatived both these contentions and held that it hasjurisdiction to try the suit.

5. With regard to the latter argument, Mr. Chitale has contended that the prayer for an injunction was not a prayer for a consequential relief but one for a relief in addition to the prayer that the decrees be set aside, and that in case his client's main prayer was granted by the Court, the prayer for an injunction might even become superfluous.' He has relied on Rachappa Subrao Jadhav v. Shidappa Venkatrao Jadhav (1918) L.R. 46 I. A. 24 in support of this argument. There the prayers in the plaint were for a declaration and for a permanent injunction against the defendant, but when the plaint was examined it was apparent that as to the whole of the1 property except the house in suit no consequential relief could have been prayed, and it was held that even as to the house the injunction prayed was demurrable in the sense that no cause of action was disclosed which could have supported this relief. Mr. Chitale has similarly argued that in the present case, if his client's main prayer was granted by the Court, there was no necessity for asking for an injunction against the defendant, and that at best the prayer for an injunction should be regarded as a prayer for an additional and not consequential relief. There seems to be considerable force in this argument.

6. It appears to me, however, that whatever the character of the court-fee payable under Article 17 (v) of the Second Schedule to the Court-fees Act might have been in the said schedule asoriginally framed, it cannot now, as it stands under the amendments, be properly described as a fixed fee, though the said article appears in a schedule which is! headed by the words ' Fixed Fees' as distinguished from Schedule I which is headed 'Ad Valorem Fees.' Clause (v) of Article 17 in schedule II prescribes that when the amount or value of the property involved does not exceed five hundred rupees the proper fee is Rs. 10, and that when the said amount or value exceeds Rs. 500, the fee is Rs. 15. It is difficult to see how this description differs in principle from that 'Table of rate of ad valorem fees leviable on the institution of suits ' under schedule I, for instance :-

When the amount or value ofthe subject matter But does not exceed. Proper Fee.exceeds.Rs. Rs. Rs.1,000 1,100 80

7. It seems to me clear that the description ' Fixed Fees ' at the top of Schedule II has now, since the amendments, become a misdescription as far as articles like Articles Nos. 12, 17 (i), (ii) and (v) and 18 (b) and (c) are concerned. The only differences in the description of such items and that of those shown in Schedule I appear to be that the fees in Schedule I are based on the amount or value of the subject-matter, while in Schedule II they are based on the amount or value of the property involved, ' and that in the Second Schedule the said amounts or values are shown under only two heads and not under a large number of heads as in Schedule I. Mr. Chitale has contended that some importance ought to be attached to the fact that the article in question appears in a Schedule which is headed ' Fixed Fees,' and he points out that in Lakhomal Deepchand v. Deepchand Tolatam (supra), it was taken for granted that Clause (v) of Article 17 in Schedule II introduced; by the Amending Act merely 'provided a fixed fee in a suit to set aside a decree. ' He has also referred to In re Ramanathan Chettiar A.I.R. [1942] Mad. 390 where a single Judge dealt with Article 1 (d) (i) of Schedule II of the Madras Court-fees (Amendment) Act which ran thus :

When presented to a High Court under Section 115, Civil Procedure Code, 1908, for revision of an order : (a) when the value of the suit or proceeding to which the order relates does not exceedRs. 1,000...Rs. 5 ; (b) when the value of the suit or proceeding exceeds Rs. 1,000...Rs. 10.

8. The learned Judge observed, with reference to the above provision : ' The intention of the Legislature was to provide a fixed Court-fee for all revision petitions filed against the ciders of the subordinate Courts.' In Krishna Motion Sinha v.Raghunandan Pandey I.L.R. (1924) 4 Pat. 336 Mullick J. pointed out, at p. 357, that it was the duty of the Court to see, on a plaint or a memorandum of appeal being filed, whether the proper fee is a fixed fee under Schedule II or an ad valorem fee under Schedule I, and he then observed (p. 357) :

No question of valuation arises if the fee is a fixed fee; but if an ad valorem fee is leviable then the Court will proceed to value the subject-matter or the subject-matter in dispute or fix the amount of the relief claimed according to rules for computation set out in Sections 7 and 8 of the Act.

10. With regard to the last case it does not appear that their Lordships had to deal with any enactment like the amended Article 17 in Schedule II to the Court-fees Act. There is no doubt that, as originally framed, Schedule II dealt only with fixed fees in the sense that fixed amounts of fees were provided for plaints, memoranda of appeals or applications of specified descriptions, there being a certain difference in the amounts of fees prescribed with reference to the Courts in which such plaints or memoranda or applications were filed. The Bombay Legislature, however, has amended certain articles in Schedule II in such a manner that while paying the proper fees payable, the Court or the party in question has necessarily to look at the ' amount or value of the property involved.' In my judgment the kind of difference that seems to exist between the description of Article 17, Clause (v) in Schedule II and the items in the table of rates of ad valorem] fees under Schedule I is not such as will alter the fact that the fees prescribed in Article 17, Clause (v) of Schedule II are of the nature of ad valorem fees. The expression 'fixed fee' is not a term of art, so that wherever a certain fee is described by the Legislature as a fixed fee, it has necessarily to be taken as such. The expression 'ad valorem' has been thus defined in Webster's 'New International Dictionary of the English Language ' : ' Lit., according to the value; used to designate a duty or charge laid upon goods at a certain rate, percent upon their value as stated in their invoice, in opposition to specific sum; upon a given quantity or number.' It seems to me that under that definition the fee prescribed under Article 17, Clause (v) of the Second Schedule must be held to be an ad valorem fee, i,e. a fee depending on the amount or value of the property involved. That being so, Section 8 of the Suits Valuation Act will apply, with the result that the suit should be tried' by a Second Class Subordinate Judge's Court and not by the Court of the First Class Subordinate Judge. The rule will,therefore, be made absolute, and the order of the lower Court set aside, and it is directed that the plaint be returned to the plaintiff for being presented to the proper Court. Parties to bear their own costs so far incurred in both the Courts.


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