1. This is an application in revision against the findings of the Second Class Subordinate Judge at Dhandhuka that the claim in Suit No. 182 of 1942 filed by the opponent is properly stamped, and that he has jurisdiction to try the suit. The suit was filed for a declaration that the decrees passed against the opponent in Suits Nos. 110 of 1937 and 113 of 1937 were obtained by misrepresentation, fraud and undue advantage and were, therefore, unenforceable, void and ineffective, and for an injunction restraining the petitioners from executing the said decrees. The claim was valued at Rs. 5 under Section 7, Clause (iv), Sub-clause (c), of the Court-fees Act, 1870, and the same was stated to be the value of the suit for purposes of jurisdiction. The petitioners, who were the defendants in the suit, contended that as the decrees were for an aggregate amount of Rs. 5,366-4-6, the opponent had to pay ad valorem fees on that amount, and that as that was the value of the subject-matter of the suit, the Second Class Subordinate Judge had no jurisdiction to try the suit. On these objections two preliminary issues were framed, and findings were recorded in favour of the plaintiff. The learned Subordinate Judge has held that the plaintiff has claimed a declaration with an injunction as a consequential relief, and that, therefore, the suit falls under Section 7, Clause (iv), Sub-clause (c), of the Court-fees Act, so that the plaintiff is at liberty to place his own valuation on that claim, and that under Section 8 of the Suits Valuation Act, 1887, the same is the valuation for purposes of jurisdiction also.
2. Mr. Shah for the petitioners, however, points out that the suit is really one for setting aside two decrees, and such a suit is now governed by Article 17, Clause (v), of the Court-fees Act as amended by the Bombay Finance Act (Bom. Act II of 1932). That clause prescribes for a plaint or memorandum of appeal to set aside a decree or award a court-fee of Rs. 10, where the amount or value of the property involved does not exceed five hundred rupees, and a court-fee of Rs. 15 where such amount or value exceeds five hundred rupees. Such a suit having been specifically provided for by this clause, it is urged that the present suit cannot be brought under Section 7(iv)(c) of the Court-fees Act. On the other hand, Mr. Chundrigar contends that the suit as framed is not to have the decrees set aside, but to have them declared as void and ineffective, with an injunction as a consequential relief. It is not the mere wording or the form of the prayer clause which determines the nature of the suit and the court-fees to be paid by the plaintiff. In substance what the plaintiff wants is to have the decrees set aside, whether it is worded as a suit for a declaration or as a suit for setting aside the decrees. It is further contended by Mr. Chundrigar that looking to the contents of the plaint it cannot be said that the plaintiff wants the entire decrees to be set aside. He says that the parties had agreed before the decrees were passed that he should pay Rs. 2,425 in full satisfaction of the defendants' claim, so that he really wanted to have the decrees modified by reducing the decretal amount to Rs. 2,425, and although he has actually prayed that the decrees should be declared as unenforceable, void and ineffective, what he actually meant was that the decrees were binding to the extent of Rs. 2,425 only, and that they could not be executed against him for any amount in excess thereof. It appears1, however, from paragraph 6 of the plaint that the plaintiff claimed that even the amount of Rs. 2,424 had been fully satisfied before the decrees were passed, so that the entire decrees were unenforceable when they were passed and, therefore, he really intends to have the decrees wholly set aside. Moreover, whatever may be the recitals in the body of the plaint, in the prayer clause the plaintiff has clearly asked for a declaration that the decrees are void and ineffective wholly, and not merely to the extent of the amount in excess of Rs. 2,425. The plaint is to be valued according to the relief claimed, and not according to the recitals in the body of the plaint. It is thus obvious that the suit is one for setting aside the decrees passed against the plaintiff. The appropriate provision in the Court-fees Act for such a suit is Article 17(v) of the second schedule as amended by the Bombay Finance Act (II of 1932). The plaintiff must, therefore, state whether the value of the subject-matter is Rs. 500 or more in order to see whether the fixed fees payable under that Article are Rs. 10 or Rs. 15. The subject-matter is obviously the amounts due under the two decrees, namely, Rs. 5,366-4-6. As the plaintiff wants to have himself relieved of the liability to pay those amounts under the decrees, he must value the plaint accordingly and' pay court-fee of Rs. 15 for the relief of having the decrees set aside, and a separate court-fee on Rs. 5 at Which he has valued his claim for the injunction.
3. It follows from this that even for purposes of jurisdiction the claim has to be valued at Rs. 5,366-4-6. In Kisandas Bankatlal v. Ragho (1943) 46 Bom. L.R. 663 the question whether Section 8 of the Suits Valuation Act is applicable to such a suit was considered by Mr. Justice Sen, and he held that although Article 17 of the second schedule of the Court-fees Act could be held to be applicable, yet the fees payable were not fixed fees, but advalorem fees, since a fee of Rs. 10 was prescribed when the amount or value of the subject-matter was less than Rs. 500, and a fee of Rs. 15 was prescribed when the amount or value of the subject-matter exceeded Rs. 500. With respect, we are not prepared to accept this reasoning. The heading of the; second schedule itself is ' Fixed Fees', and the mere fact that two such fixed fees are prescribed according to the value of the subject-matter does not mean that the fees are not fixed, but ad valorem. At the end of the first schedule the table of rates of ad valorem fees has been prescribed in the Court-fees Act, and the Court-feel payable on a plaint in a suit to set aside a decree is not determined according to that table of rates of ad valorem fees. Whether the value of the subject-matter be Rs. 500 or more, the fee to be paid is fixed as either Rs. 10 or Rs. 15, and is not to be determined according to the rate given in the table. Hence Section 8 of the Suits Valuation Act is not applicable to such a suit, and under Section 24 of the Bombay Civil Courts Act (XIV of 1869) the jurisdiction is to be determined according to the amount or value of the subject-matter. If the subject-matter exceeds an amount or value of Rs. 5,000, then the Second Class Subordinate Judge has no jurisdiction to try the suit. In the present case the subject-matter of the plaintiff's suit is the setting aside of the two decrees under which he is liable to pay Rs. 5,366-4-6. That must be taken to be the value of the subject-matter of the suit, and, therefore, the Second Class Subordinate Judge has no jurisdiction to try it.
4. We, therefore, make the rule absolute, and order the plaint to be returned to the plaintiff to be presented in the proper Court, The opponent shall pay the costs of the petitioners throughout.