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Balkrishna Narayan Sawant Vs. Jankibai Sitaram Sanzgiri - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number First Appeal No. 172 of 1916
Judge
Reported in(1920)22BOMLR289
AppellantBalkrishna Narayan Sawant
RespondentJankibai Sitaram Sanzgiri
DispositionAppeal dismissed
Excerpt:
.....7 (iv)(o) - suits valuation act (vii of 1887), section 8-valuation of claim-payment of court-fees-jurisdiction-suit for declaration and injunction.;the plaintiff has the right to value his claim for the purpose of court-fees in a suit for a declaration and for an injunction by way of consequential relief; and the value for the purpose of jurisdiction is the same.;in a suit to obtain a declaration and an injunction, the plaintiff valued his claim for the purpose of court-fees at rs. 135, and for the purpose of jurisdiction at rs. 16000. the suit was tried by the first class subordinate judge under his special jurisdiction. the plaintiff appealed to the high court from his adjudication; but later on urged that the appeal lay to the district court and not to the high court, inasmuch..........subject-matter of the suit for the purpose of jurisdiction being over rs. 5,000. this also was a suit filed under the special-and not the ordinary- jurisdiction of the first class subordinate judge. these two suits and the widow's suit transferred to that court were tried and decided together. several appeals have been filed from the different decrees to this court. narayan, whose suit was dismissed, has filed the present appeal, which, it is now contended, lies to the district court. in balkrishna's suit the widow has appealed to this court on the merits, and balkrishna has appealed as to costs. we are not concerned with the appeals in the widow's suit as regards this preliminary point.3. it is significant that narayan alone raises the point of jurisdiction in his appeal. the point,.....
Judgment:

Shah, J.

1. In this appeal, a preliminary point has been raised on behalf of the appellant that the appeal lies to the District Court, and not to this Court, and that the memorandum of appeal should be returned to him now to be presented to the District Court.

2. It will be convenient to state the facts bearing on this point. One Sitaram left his native place for Benares in 1902: he has not been heard of since and is presumed to be dead. There were disputes as to his property in the hands of third persons: the claimants were his widow, Jankibai, his brother Narayen, and his nephew, Balkrishna (Narayan's son). The widow claimed as an heir, the brother, by survivorship on the footing that he and Sitaram were joint, and the nephew, under the will of Sitaram. Jankibai filed a suit in 1913 on the Original Side of ' (I) (1918) L. R. 4617 I A. 15; 21 Bom. L. R. 1148.~ the High Court against the stake-holders, to which other claimants were added as parties later on. This suit was ultimately transferred to the Court of the First Class Subordinate Judge at Ratnagiri to be tried along with two other suits, which were filed in that Court by the brother and the nephew respectively. The brother filed Suit No. 319 of 1913 against the widow and the stake-holders for a declaration that he was jointly interested in the property of Sitaram and for an injunction restraining defendants 1 and 2 (the widow and her brother) from receiving, and defendants 3, 4 and 5 (the stake-holders) from handing over to them, the property of Sitaram. Other minor reliefs claimed by him are not material. He valued the claim for the declaration and the injunction at Rs. 135 (Rs. 130 for declaration and Rs. 5 for injunction) for the purpose of Court-fees. He stated that the value of the subject-matter for the purpose of jurisdiction was about Rs. 16,000. This suit was filed under the special jurisdiction of the First Class Subordinate Judge of Ratnagiri, and not under his ordinary jurisdiction. The other suit was filed by Balkrishna against the widow and other defendants. That also was a suit for a declaration and an injunction, the valuation for the purpose of Court-fees being Rs. 135, and the value of the subject-matter of the suit for the purpose of jurisdiction being over Rs. 5,000. This also was a suit filed under the special-and not the ordinary- jurisdiction of the First Class Subordinate Judge. These two suits and the widow's suit transferred to that Court were tried and decided together. Several appeals have been filed from the different decrees to this Court. Narayan, whose suit was dismissed, has filed the present appeal, which, it is now contended, lies to the District Court. In Balkrishna's suit the widow has appealed to this Court on the merits, and Balkrishna has appealed as to costs. We are not concerned with the appeals in the widow's suit as regards this preliminary point.

3. It is significant that Narayan alone raises the point of jurisdiction in his appeal. The point, if good, equally affects the two appeals arising out of Balkrishna's suit. The appellants in those two appeals do not raise this point. On the contrary the widow contends that the appeals are properly filed in this Court. I shall deal with the preliminary point in this appeal in which it has been raised; for if it fails here, it must fail as regards the appeals arising out of Balkrishna's suit.

4. There can be no doubt that it is open to the plaintiff to put his own valuation on the claim for the purpose of Court-fees under Section 7, Clause (iv) (c) and that in the present case he purported to value it at Rs. 135. It is also clear that under Section 8 of the Suits Valuation Act, 1887, the. same value must determine the value for the purpose of jurisdiction. The decisions of this Court are to the same effect: and the course of the decisions on this point i has been approved by the Privy Council recently in Sunderbai v. The Collector of Belgaum (1918) L. R. 46 I. A. 15 : 21 Bom. L.R. 1148 An attempt has been made on behalf of the widow to show that the present case is governed by the decision in Rachappa v. Shidappa (1918) L. R. 46 I. A. 24 : 21 Bom. 489. But I think that the injunction relates to the whole property, in respect of which the declaration is sought, and is a proper consequential relief. The suit, therefore, falls under Clause (iv) (c) of Section 7 of the Court-fees Act. I do not see how the present case can be treated on the same footing as the case of Rachappa v. Shidappa.

5. If the matter rested there, it would follow that the appeal would lie to the District Court: and we would be bound to give effect to the contention that the appeal lies to the District Court, even though that conclusion would involve a further delay for no useful purpose in the disposal of these appeals.

6. The facts of the case are somewhat peculiar; and, on the particular facts of the case, I think the plaintiff should not be allowed to contend that the true value for the purpose of Court-fees is Rs. 135. It is clear from the plaint that he filed the suit in the Court of the First Class Subordinate Judge with a definite allegation that the suit was filed under the special jurisdiction of the Court as the value of the subject-matter for that purpose was about Rs. 16,000. The value for the purpose of Court-fees was stated to be Rs. 135. If the lower Court had considered e question of Court-fees and jurisdiction, as it should have, after the plaint was filed, the inconsistency between the two statements would have been realised; and the plaintiff would have been at once called upon either to amend the value for the purpose of Court-fees so as to bring the case within the special jurisdiction of the Court, or to take back the plaint to be presented to the Court of the Second Class Subordinate Judge at Malvan, which would have jurisdiction to entertain the suit on the basis of the value for Court-fees being Rs. 135. That was not done. The defendants raised no objection as to the deficiency of Court-fees or want of jurisdiction. The result was that the Suit of 1913 was tried by the First Class Subordinate Judge and decided by him in 1916 on the footing that it was a suit within his special jurisdiction as contemplated by Section 25 of the Bombay Civil Courts Act (XIV of 1869). The plaintiff took advantage of the trial of the suit by a Court of higher jurisdiction; and he followed it up with an appeal to this Court in 1916, on the same basis. All these appeals are now ready for hearing; and for the first time it is urged on behalf of the plaintiff that the value of Court-fees as mentioned in the plaint is the true value for the purpose of jurisdiction also. The point now urged suggests not only want of jurisdiction in this Court to entertain the appeal, but also want of jurisdiction in the trial Court. Not only the plaintiff Narayan but other parties to this litigation and the lower Court have acted upon the allegation in the plaint that the true value of the subject-matter of the suit is over Rs. 5000. It is inconsistent with the value of the claim for the purpose of Court-fees being only Rs. 135. The inconsistency might have been removed if it had been noticed in time by the plaintiff amending the value of his claim for the purpose of Court-fees or that for the purpose of jurisdiction. Under the circumstances I think that the plaintiff can be fairly taken, and ought to be taken, to have really valued his claim for the purpose of Court-fees not at Rs. 135 as he has apparently done, but at a sum exceeding Rs. 5,000, as he has himself acted and induced others to act on that basis. He cannot be allowed to use either of these inconsistent valuations in different Courts according to his convenience. At this stage he can be properly held to have valued his claim for Court-fees and jurisdiction at Rs. 16,000 or at some figure exceeding Rs. 5,000. It may be that he has not paid sufficient Court-fees from this point of view: but we are not now concerned with the question of sufficiency of Court-fees either for the plaint or for the memorandum of appeal. We are concerned with the question of jurisdiction. On the special facts of this case I am of opinion that the plaintiff must be taken to have filed the suit properly in the Court below under its special jurisdiction, and to have filed the appeal properly in this Court. The appeal must, therefore, be heard on the merits. It follows that Appeals Nos. 177 and 218 of 1916 have been properly filed in this Court and must be heard on the merits.

7. I have reached this conclusion on the special facts of this case, and desire to make it clear that I do not mean to depart in the slightest degree from the recognised rule, to which I am bound to give effect, that the plaintiff has the right to value his claim for the purpose of Court-fees in a suit for a declaration and for an injunction by way of consequential relief, and that the value for the purpose of jurisdiction is the same. In this particular case I hold that the plaintiff must be taken to have really valued the claim for the purpose of Court-fees at about Es. 16,000, though in terms he purports to put a different and lower value.

8. First Appeal No. 172 is not pressed on the merits, and, is, therefore, dismissed.

9. Respondent No. 1 to get her costs from the appellant, the other respondents to bear their own costs.

10. We see no reason to disturb the order made by the trial Court as to costs of the stake-holders.

11. We dismiss the cross-objections of respondent No. 3 with costs.

Hayward, J.

12. I concur with the conclusions and have only a few words to add to the reasons of my learned brother.

13. Narayan, the father, and Balkrishna, the son, both brought suits for declarations and injunctions against the widow of the last holder for property worth Rs. 15,000 in the hands of stakeholders. These suits were filed the same day and were suits Nos. 319 and 321 of 1913 in the Court of the First Class Subordinate Judge of Ratnagiri.. They appear to have assessed their claims for declarations at Rs. 130 and injunctions at Rs. 5 and thereon to have paid Rs. 10-6-0 as Court-fees. But at the same time they stated definitely that the value of the property was some Rs. 15,000 and that the suits were therefore not within the jurisdiction of the Second Class Subordinate Court of Malvan, but were within that of the First Class Subordinate Court of Ratnagiri. It is difficult to follow the precise method by which they arrived at Rs. 10-6-0 as the appropriate Court-fees. If they had treated the claims for declarations separately, it would not have been necessary to have given them any value. If, however, they had valued them and did so at Rs. 130 for the purposes of ad valorem fees, then the appropriate fees would have been Rs. 9-12-0, while the ad valorem, fees for claims for injunctions valued at Rs. 5 would have been annas 6, making a total of Rs. 10-2-0 as the appropriate Court-fees. If on the other hand they had treated, as they ought logically to have done, the claims as claims for declarations with injunctions valued at total sums of Rs. 135, then Rs. 10-8-0 would have been the appropriate ad valorem Court-fees. But they neither paid Rs. 10-2-0 nor Rs. 10-8-0. They fixed on the intermediate sums of Rs. 10-6-0 and they paid those sums without specific explanations as the Court-fees, so that even on their own showing they did not pay the right Court-fees in accordance with Section 7, clause 4 and Schedule II, Article 17, clause 3, of the Court-Fees Act, 1870.

14. They then proceeded apparently to make a further mistake and to overlook the provision that the valuation for Court-fees must be deemed the same as the valuation for jurisdiction under Section 8 of the Suits Valuation- Act, 1887. For they valued their suits at Rs. 15,000 for the purposes of jurisdiction and upon that valuation they deliberately brought their suits not in the Court of the Second Class Subordinate Judge of Malvan, but, as no doubt suited them better, in the Court of the First Class Subordinate Judge of Ratnagiri. They must have been aware at the time they selected the trial Court that an appeal from the former would lie to the! District Court of Ratnagiri and an appeal from the latter would lie to this High Court. It is clear that they did realize this and that they had deliberately filed their suits accordingly, because Narayan, the father, proceeded to file Appeal No. 172 of 1916 in this High Court, and no objection was taken by Balkrishna, the son, to the widow filing her Appeal No. 177 of 1916 also in this High Court. It is only now some three years later that they have denied practically the jurisdiction both of the trial Court and the appellate jurisdiction of this High Court. It seems to me that in these circumstances the only possible course is to hold that they were wrong in their statements as to the valuations for Court-fees which in any case were incorrect according to the amounts actually paid as Court-fees and which were directly opposed to the actual valuation of the property in the suits upon which valuation they had deliberately brought their suits in the superior Court of the First Class Subordinate Judge of Ratnagiri and had brought their appeals or suffered the appeals to be brought in this High Court. The proper course, therefore, in my opinion, must be to hold that the valuation in both the suits was incorrectly stated for Court-fees and correctly stated for the purposes of jurisdiction both of the trial Court and of this High Court.

15. It seems to me further, to hold otherwise would lead to a most unfortunate result. Owing to the technical course which would have to be followed in order eventually to bring these appeals for final decision in this High Court, there would ensue a further serious delay which might extend to years before the widow would succeed, if she be entitled to succeed, in establishing her rights to this large sum of money in this High Court. To allow such a result would, in my opinion, be encouraging an abuse of the proceedings both of the First Class Subordinate Court of Ratnagiri and of this High Court, and it is, in my opinion, our incumbent duty to prevent any such abuse under the powers inherent in us under Section 151 of the Civil Procedure Code.


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