1. The suit is for a declaration that the defendant who is constructing a house next to that of the plaintiff is bound to construct it in accordance with the conditions laid down by the Municipality when it formed the sites and for an injunction restraining the defendant from constructing the house contrary to those conditions and for the removal of such portion of the building as has been built contrary to the conditions. The point for consideration in this appeal is whether the court-fee paid by the plaintiff according to his valuation is correct as held by Venkataramalya J. or whether he has to pay court-fee on half the value of the property calculated, as if the suit is for possession of the house, as held by Balakrishnaiya J. The latter would be correct if Clause (iv) (c) of Section 4, Mysore Court-fees Act, is applicable with its proviso. If the proviso is not applicable, the plaintiff is entitled to put any value on the relief claimed whether the suit falls under Clause (c) or (d) or (e) of Section 4, Mysore Court-fees Act. That section reads:
'The amount of fee payable under this Act....shall be computed
(iv) in suits
(e) to obtain a declaratory decree or order where consequential relief is prayed;
(d) to obtain an injunction;
(e) for a right to some benefit (not herein otherwise provided) to arise out of the land:
According to the amount at which the relief is sought is valued in the plaint or memorandum of appeal. Provided that in suits coming under Sub-clause (c) in cases where the relief sought is with reference to any immovable property such valuation snail not be less than half the value of the immovable property calculated in the manner provided for by paragraph (v) of this section. In all such suits the plaintiff shall state the amount at which he values the relief sought under paragraph (v);
(v) in suits for possession of land, houses or garden: B. Where the subject-matter is a house or garden -- the market value of the house or garden.'
2. The main relief sought by the plaintiff in the plaint is injunction. The said relief can be said to be a consequential relief only if it cannot be granted except on a declaration of the right of the plaintiff and not merely on proof of that right. The plaintiff in a suit for recovery of possession of land, if entitled to possession on proof of title -- and there is no cloud on the title occasioned for instance by a sale either by himself or through court which has to be removed by a declaration before possession can be given -- is bound to pay court-fee on the basis that it is a suit for possession only though as a matter of fact there is a prayer in the plaint for a declaration of his title. The court in such a case should be guided by the substance of the case of the plaintiff as set out in the plaint and treat it as if he had not prayed for the superfluous and unnecessary prayer for declaration. To hold otherwise would result in the plaintiff evading payment of legitimate court-fee under Clause (v) of Section 4, Mysore Court- Fees Act by merely adding an unnecessary prayer for declaration of title. This view is supported by the decision in -- 'Rama-swami Ayyangar v. Rangachariar', AIR 1940 Mad 113 (PB) (A) which follows the observations el their Lordships of the Privy Council in -- 'Bijoy Gopal v. Sm. Krishna Maheshi', 34 Cal 339 (B). Now in this case there is no legal impediment to be removed for the grant of injunction if the plaintiff is otherwise entitled to it and the suit has therefore to be regarded as one for injunction falling under Clause (d) of Section 4 (iv), Mysore Court-fees Act. This view is supported by the observation of Wadsworth J. In -- 'Venkata Banga Rao v. Sita Rama Chandra Rao', AIR 1941 Mad 91 (C), The plaintiff must be held to have the right to give his own valuation for purposes of court-fee and Jurisdiction.
3. The main relief claimed by the plaintiff in the suit is injunction and not easement or any A other right to some benefit to arise out of land. The suit cannot therefore be said to be one under Clause (iv) (e) of Section 4, Mysore Court Pees Act. Assuming that the suit is for declaration of plaintiffs right to an easement and for a consequential relief, viz., injunction, it cannot be said that proviso to (c) is applicable as the main and in fact the real relief asked for is injunction and not declaration. The point would arise for consideration if there was a proviso to (iv) (d) in Section 4, Mysore Court Pees Act, as has since been introduced to the corresponding Clause in the Madras Court Fees Act that proviso being as follows:
'In suits for injunction where the relief is sought with reference to any immoveable property on the ground that the defendant denies title of the plaintiff to the property and disturbs or threatens plaintiff's possession thereto the value of the subject-matter of the suit shall not be -less than half the value of the immoveable property calculated in the manner provided for by paragraph (v) of Section 7 of the Courtiees Act of 1870'.
This must be compared with the proviso to Clause (c) which is as follows:
'Provided that in suits coming under Sub-clause (c) in cases where the relief sought is with reference to any immoveable property such valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph v of this section. In all such suits the plaintiff shall state the amount at which he values the relief sought under paragraph (v)'.
If it was intended that proviso to Clause (c) should be read as if the consequential relief sought is for possession of the land or as if its title is being questioned, the wording of the proviso would be as in the proviso to Clause (e). The difference in the wording of the proviso to Clause (c) and that to Clause (e) will have to be considered before equating the more comprehensive phrase 'with reference to' in the former proviso to what is stated in the latter proviso, but a decision on that point does not arise in this case and may well be left for decision in a case where it directly arises for consideration.
4. The plaint in substance, as already observed, falls within the scope of Clause (iv) (d), to Section 4, Mysore Court Fees Act. The learned Subordinate Judge is wrong in holding that the plaintiff is not entitled to give his own valuation. His order is set aside and the suit is remanded for disposal according to law.
5. This reference to a Full Bench has been made by Venkataramaiya J. as there has been a difference of opinion between him and Balakrishnaiya J. on the question of the correctness of the court-fee paid by plaintiff in the lower court.
6. A preliminary point of objection was raised by Sri Lakshminaranappa who appears for the respondents and that is as regards the competency of a single Judge to refer a point of law for decision by the Full Bench as has been done in this case. He relies on the provision under Section 98(2), Civil P. C., under which a reference can be made by two Judges. it was not denied by him that Section 15(3), Mysore Chief Court Act of 1884 provides for a reference to a Full Bench being made by a single Judge as in this case, but it is contended by him that after the Constitution and the extension of the Central Act of the Code of Civil Procedure; the provision in Section 15(3), Mysore Chief Courts Act, must be deemed to have been super-ceded as per Article 254(1) of the Constitution as this provision is repugnant to the provision in Section 98(2), Civil P. C., which is a Central Act.
In the first place while Section 98(2) provides for reference being made to a Full Bench by two Judges, Section 15 (3) Mysore Chief Courts Act, pro-vides for a reference being made by a single Judge. The provisions in the Mysore Act are supplementary to those in the Code of Civil Pro-cedure, as the Mysore Act provides for a reference to a Full Bench in a case not provided for in the, Civil Procedure Code. It gives a power to the, Judges of the High Court in addition to the power they have under the Civil Procedure Code and not inconsistent With it. Further consideration of the point becomes unnecessary as Section 4(1), Civil P. C., directs that the provisions in it shall not be deemed to limit or affect any special or local law and thus it is clear that its provisions under Section 98(2) do not limit or affect the provision in Section 15 (3), Mysore Chief Courts Act, which is a special and local law of Mysore.
7. Before taking the point referred to for decision by the Full Bench, it is necessary to refer briefly to the facts of the case. The plaintiff and defendants are owners of adjacent sites which originally belonged to the Bangalore City Municipality. According to the case of the plaintiff, the defendants like other purchasers of the sites are bound by some restrictive covenants. Under these they are bound not to construct over a portion of the open space on the front and sides of the sites, not to construct rooms of the minimum width of 8 feet by 10 feet & not to put up buildings other than a dwelling house. Since the defendants are constructing a building in violation or these covenants the suit has been filed for a declaration that the defendants are bound by the covenants and for an injunction preventing them from constructing the building contrary to the covenants and directing them to pull down portions which have been already so put up.
8. While it is contended on behalf of the plaintiff that he is entitled to put his own valuation for purposes of court-fee and Jurisdiction it is contended on behalf of the defendants that the case falls under Clause 4(c), Mysore Court Fees Act, governed by the proviso to it. Section 4 of the Act states:
'The amount of fee payable under this Act...shall be computed
(iv) in suits
(c) To obtain a declaratory decree or order where consequential relief is prayed;
(d) to obtain ah injunction;
(e) for a right to some benefit (not herein Otherwise provided) to arise out of the land.
According to the amount at which the relief is sought is valued in the plaint or memorandum of appeal. Provided that in suits coming under Sub-clause (c) in cases where the relief sought is with reference to any immoveable property such valuation shall not be less than half the value of the Immoveable property calculated in the manner provided for by paragraph v of this section. In all such suits the plaintiff shall state the amount at which he values the relief sought under paragraph (v).
(v) in suits for possession of land, houses or garden;
(B) Where the subject-matter is a house or garden -- the market value of the house or garden'.
As the plaint is worded, it looks prima facie that Clause (c) is applicable and that is evidently the view taken by Venkataramaiya J., as he has considered the necessity of deciding whether the Proviso to Clause (c) is applicable or not. He however finds that Proviso to Clause (c) is not applicable as, according to him, 'it almost seems that the proviso should be read with the Clause so as to make 'with reference to' mean, 'involving the possession of land, house or garden''. As such, the learned Judge was of opinion that the plaintiff is bound to pay only the court-fee according to his own valuation & the court-fee paid by him is sufficient. It may be added here that though the decision in -- 'Motilal J. Boal v. Ramchar', AIR 1952 Mys 80 (D), exactly a similar case, which was in fact between the plaintiff in this case and another neighbour of his, laying down that the court-fee payable in cases of this kind falls under Clause iv(e) of Section 4 was referred to by Venkataramaiya J., neither he nor Bala-krishnaiya J. follows that decision and holds that Clause iv(e) of Section 4 is applicable.
Similarly though Venkataramaiya J. has referred to the applicability of Clause (d) as being argued, neither he nor Balakrishnaiya J, held that the case falls Under that Clause. On the other hand, Balakrishnaiya J. has held that the relief sought not only falls under Clause 4(iv)(c) but also attracts the proviso to that Clause.
9. The prayer in the plaint makes it clear that the suit is for a declaration of plaintiff's right and the consequential relief of injunction. The plaintiff has arbitrarily put some value on the relief sought and the point for consideration is whether the court-fee-paid is sufficient. That will depend upon the point whether Clause (c), (d) or (e) of Section 4(iv) of the Court Fees Act is applicable and if Clause (c) is applicable whether the proviso to that Clause is also applicable.
10. When a suit is for a declaratory decree with consequential relief such as injunction or possession of immoveable properties Clause (c), Section 4(iv), Court-fees Act, is applicable while a suit for mere injunction falls under Clause (iv) (d) of Section 4 and a suit for possession of immoveable property falls under Clause (v) of that section. Now though in the plaint ' declaration alone is asked for and no relief is sought for a consequential relief such as cancellation of a document, it is open to the court to find from the substance of the plaint that it is a suit for declaration and consequential relief if relief cannot be given without a declaration. 'Rupan Singh v. Emperor', AIR 1944 Pat 17 (FB) (E) is clear on the point. As observed in that decision :
'It has been laid down in a large number of cases of which the decisions in Calcutta High Court in -- 'Deokali Koer v. Kedar Nath', 39 Cal 704 ;(P) and -- 'Harihar Prasad v. Shyam Lal', 40 Cal 615 (G) are illustrations that a suit for a declaration that a certain decree was fraudulent and illusory and unfit for execution and that certain property was not liable to be sold in execution of that decree was not a mere suit for declaration though cast in a declaratory form but in substance a suit for a declaration and consequential relief within the meaning of Section 7(iv)(c) of the Court-fees Act (equivalent to Section 4(iv) (c) of our Act). The court-fee is dependent not on the form of pleadings but on the real substance of the relief claimed'.
This is equally true even when the form of prayer appears to bring the case as one contemplated under Section 4(iv)(c), Court-fees Act, but where in substance it is not a case of that kind.
11. A plaintiff may in his suit for declaration pray for relief such as injunction or possession of immoveable property or cancellation of a deed stating that that relief has to be given in consequence of the declaration. Still the suit may not fall under Clause (c) of Section 4(iv) if really the declaration is superfluous and the relief sought may be given Without any declaration. In such cases the substance of the suit is taken into consideration and the suit is valued under Clause (d) of Section 4(iv) or under Section 4(v) of Court-fees Act, according as the main relief is injunction or possession of Immoveable property.
12. in suits for possession of immoveable properties based on title it is usual to pray for declaration of plaintiff's title and for possession of the lands as if the latter relief is to be given in con- : sequence of the declaration. if the prayer alone is taken into consideration it falls under Clause (c) of Section 4(iv), Court-fees Act, and plaintiff need pay only half court-fee on half the value of the land as estimated under Section 4(v), Court-fees Act. This is not done as plaintiff is entitled to possession of the lands on providing his title and there is no need for him for getting a declaration as there is no legal obstacle to be removed before possession can be granted on proof of plaintiff's title.
As observed in the Full Bench case -- 'Kalu Ram v. Babu Lal : AIR1932All485 :
'The Court has to see what is the nature of the suit and of the relief claimed, having regard to the provisions of Section 7, Court-fees Act. If a substantive relief is claimed though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. Suppose a plaintiff asks for a declaration that the defendant is liable to pay him money due under a- certain bond and also asks for recovery of that amount; or suppose that -he asks for a declaration that he is the owner of certain property and is entitled to its possession and asks for recovery of its possession: surely the reliefs for the recovery of money or for the recovery of possession cannot be treated as a mere consequential relief which can be arbitrarily valued at any low figure arid court-fees paid on that arbitrary valuation only'.
13. Similarly when a person prays for an injunction which he is entitled to on proof of his - right to it, as in this case, the frame of the suit falls within Section 4(iv)(d), Court-fees Act, though he has unnecessarily prayed for a declaration of his right. The decision in AIR 1941 Mad 91 (C) is on all fours with the present case, Section 7, Madras Court-fees Act, being the equivalent of Section 4, Mysore Court-fees Act.
'In matters of court-fee and pecuniary jurisdiction, the real substance of the suit and not the form in which it has been clothed should be looked to. Where there as any legal necessity for the plaintiff to get a declaration of his right of easement, before he can get an injunction to protect it, the suit would have to be filed under Section 7(iv) (c) even though he has sought the declaration by means of averments in the body of the plaint and not by praying for a declaration specifically amongst the reliefs at the end of the plaint.
'The safe Rule however is that when there is some legal obstacle which has to be removed before a consequential relief can be granted, it is incumbent upon the plaintiff to pray for a declaration which will have the effect of removing that obstacle. But if the plaintiff merely avers a title which can be established without the cancellation of a document or the nullification of any adverse title and only claims the relief which would naturally flow from the establishment of the title which he avers, it is not necessary for the plaintiff to pray expressly for a declaration of that title'.
The plaintiff's case was that irrigation works in his occupation, situate within the Hyderabad State, received their customary supply of water from the overflow of tanks belonging to the defendant and situate in British India and that he had a right to require that the defendant should do nothing to the tanks in his possession which would adversely affect the customary flow of water to the tanks of the plaintiff. Consequently he demanded a series of injunctions restraining the defendant from carrying out projected works which, it was alleged would endanger the customary flow of water to the plaintiff's tanks.
Held that on the frame of the suit, all that the plaintiff had to prove by evidence was that he had subsisting right of easement to the extent and of the nature claimed. If the evidence established the existence of that right, there was no legal Impediment which had to be removed before the injunction protecting that right would be granted; 'and whether he had or had not sued for declaration, it was not necessary for him to pay court-fee on the footing that the finding which he sought as to his title was really a declaration, necessarily required as a preliminary to the grant of the injunction. Consequently, the plaint fell only under Section 7(iv)(d) and not under Section 7(iv) (c) and the plaintiff was entitled to place his own valuation on the injunction which he sought'.' (The underlining (here into ' ') is mine).
There is the high authority of their Lordships of the Privy Council for holding that though the plaint contains a prayer for a declaration of plaintiff's right to get a relief such as injunction of possession of immoveable property and for granting such a relief, the suit must be regarded as one for the main relief if the declaration sought for is unnecessary for granting the main relief claimed in the suit. In 34 Cal 329 (B) their Lordships of the Privy Council had to deal with a case in which the appellants who were reversioners filed a suit for a declaration that an Ijara or lease granted by the widow was not binding on them and for possession. If the suit is regarded as one for declaration and consequent relief, it would be governed by Section 4(iv)(c) of our Court-fees Act corresponding to Section 7(iv)(c), Madras Court-fees Act, and for purposes of limitation Article 91 of Schedule to the Limitation Act which prescribes, a period of three years. If the declaration prayed for is regarded as superfluous end that prayer could be ignored as even without it the main relief of possession could be given the suit has to be regarded as one not falling under Section 4(iv)(c) but under Section 4(v) and for purposes of limitation the suit would be governed by Article 141 which prescribes a period of 12 years. Their Lordships held that the declaration sought for in the prayer was superfluous and the suit must be regarded as one merely for possession.
'A Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property.
There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint a declaration that the ijara was inoperative as against them, as leading up to. their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances, which they relied on, for showing that the Ijara or any derivative dealings with the property were not . In fact voidable but were binding on the reversionary heirs.
Their Lordships are of opinion that the article in the Schedule to the Limitation Act applicable to this case is article 141'.
14. This decision of their Lordships was followed in the Full Bench decision reported in AIR 1940 Mad 113 (A) with the observation:
'In such cases even if the plaint contains a prayer for a declaration or a cancellation there is good reason for holding it to be one for a purely incidental out unnecessary relief'.
15. There are thus indisputable authorities for the position that when the prayer for declaration is supernuous and mere is no legal impediment for the grant of relief of possession or injunction without a declaration of plaintiff's right, the suit must be regarded as one for injunction or possession alone. Otherwise it leads to the absurd position of a person tiling a suit for declaration of his right to recover a very large suit in of money on a pronote and for recovery of the money paying only a nominal court-lee under Section 4(iv)(c) or filing a suit for declaration of title to a land and for possession of it paying only half the court-fee, he is bound to pay in case he titles a suit for possession only. It was not argued before us that it is not correct to regard such suits as suits merely for recovery of money or possession of lands and recover the court-fee according to the money or value of land.
It is based on this principle laid down by their Lordships of the Privy Council that Wadsworth J. held in AIR 1941 Mad 91 (C) that:
'It seems to me that on the frame of the present suit, all that the plaintiff has to do is to prove by evidence that he has a subsisting right of, easement to the extent and of the nature claimed. If the evidence establishes the existence of this right, there is no legal impediment which has to be removed before the injunction protecting that right will be granted; and whether he has or has not sued for the declaration, it is not necessary for him to pay court-fee on the footing that the finding which he seeks as to his title is really a declaration necessarily required as preliminary to the grant of the injunction. It follows that the plaint as now amended falls only under Section 7 (iv)(d) Court-fees Act and the plaintiff is entitled to place his own valuation on the injunction which he seeks. No doubt the valuation which he has placed on these injunctions is palpably inadequate but the Court has no power to revise that valuation.'
It may be, on the other hand, added, here, that if entered for injunction or other relief such as possession cannot be granted without a decree for declaration, such as, that a deed executed by plaintiff or a decree passed against him is not binding on him, the suit must be regarded as one for declaration and consequent relief even if there is no prayer for a decree for declaration in the plaint-as already pointed out on the authority of AIR 1844 Pat 17 (E).
16. In the present suit there is a prayer for a decree lor declaration that plaintiff is entitled to enforce certain covenants against defendant and for an injunction. If a decree for a declaration of the right is necessary to the grant of injunction, the suit would have been governed by Section 4(iv)(c). 'But there is no legal obstacle which has to be removed by the grant of a declaratory decree before a decree for injunction could be passed. As such the prayer for declaration is superfluous and in the wording of their Lordships of the Privy Council in 34 Cal 329 (B) :
'In such a suit it is therefore unnecessary for him to ask for a declaration.'
This suit has, in spite of the prayer for declaration, to be treated as one merely tor injunction contemplated by Section 4(iv)(d), Mysore Court-fees Act, just as the suit in 34 Cal 329 (B) was regarded only, as a suit for possession in spite of there being in the plaint a prayer for declaration as well as lor possession. As Section 4(iv)(d) is applicable to the case on hand, the plaintiff is entitled to give his own valuation as he has done and this is the answer for the reference.
11. Once it is held as has to be held that Section 4(iv)(d) is applicable and not Section 4(iv)(c) to cases of this kind in which prayer for declaration is to Oe regarded as superfluous and the suit has to be regarded as one for 'injunction only, no question arises of applying Section 4(iv)(e) or if construing the proviso to Section 4(iv)(c) as if Clause (iv)(c) is applicable. It has however to be noticed that thief are a few decisions of the Madras High Court in which the applicability of Section 4(iv)(e) is con- sidered and the meaning of the words of Proviso to Section 4(iv)(c) is strained to yield a result which could be and should be more easily achieved by applying Clause (iv-d) to those, cases. The first of these decisions is by Jackson J. In -- 'In re, Venkitakrishna Pather : AIR1927Mad348 .
As observed by Venkatarama Iyer J. In --'Paupuk Kannu Anni v. Thoppayya Mudaliar', : AIR1952Mad41 (J) :
'In : AIR1927Mad348 (I) the plaintiff sued for a declaration that he had a right of wayand drainage over the defendant's lands andtor injunction. The District Munsiff held thatthe suit was for a declaration and consequentialrelief and came under Section 7, Clause (iv) (c) and applying the amendment directed payment of halfthe court-fee payable in a suit for possessionunder Section 7, Clause (v). The plaintiff was content to leave it at that but the defendant took thematter in revision and contended that the suitmust be regarded as one for possession and fullcourt-fee was payable under Section 7, Clause (v) andnot merely half thereof. Jackson J. rejected this contention.
This decision is strongly relied on by Mr. V. V.Raghavan on behalf of the respondent. But itis clear that Jackson J. did not decide thatsuch suits fell within Section 7, Clause (iv)(c). He onlydecided that it did not fall under Section 7, Clause v. It may be noted that in AIR 1927 Mad 348(I) as in the present case the plaintiff sought to establish a right of easement and prayed for consequential relief by way of injunction but as the plaintiff himself had submitted to theorder of the lower Court, this Court had nooccasion to decide under which Clause it fell. But the words 'where relief was sought with reference to any immovable property' were construed as meaning 'involving possession of lands,houses or garden' and as - not including easements. This case, therefore, is really some authority for the position that easement suits do notfall under Section 7(iv) (c)' -- corresponding to 4 (iv) (c) of Mysore Court-fees Act.
As observed by Venkataramaiya J. what Jack-son J. decided is that such suits do not fall underClause 7(iv). He did not decide that such suits fall under Section 7(iv)(c) corresponding to Section 4(iv)(c) of our Act and as such the question of the meaning of the Proviso to that Clause did not arise for consideration. The opinion is obiter dictum and that is why Venkatarama lyer J. states that that case is some authority and not that it is an authority on the point.
18. The decision in -- 'Gurunatha Chettiar v. Secy. of State', AIR 1936 Mad 201 (K), may be referred next. That decision deals with a case in which the plaintiff's suit was for declaration that he is entitled to take water from a river free of irrigation cess & for refund of a sum of Rs. 50/-and odd which had Keen wrongly levied from him, it was a case in which declaration was unnecessary as on proof of his right to take water free of irrigation cess, he was entitled to a decree for the money wrongly recovered from him. That is why Varadachariar J. who decided the case observed- ed that 'It is not impossible to read the plaint in such a way as to make the prayer for declaration ancillary to the prayer for refund' and not as independent prayer. Consistently with the decision in AIR 1941 Mad 157 (sic- AIR 1927 Mad 348) and 34 Cal 329 (B) he observed:
'If the suit is substantially one for easement, it will fall not under sub-clause (c) of Section 7(iv) but under sub-clause (e) and the Madras amendment introduces a proviso only to Sub-clause (c) and not to Sub-clause (e)'.
Varadachariar J. did not however fail to notice that:
'There is no dispute about the plaintiff's title to his mitta; nor is he seeking a declaration even in respect of a right of easement in the strict sense. He is merely asking for an immunity from assessment.'
Neither the proviso to Sub-clause (c) nor the nature of a suit in respect of an easement arose for consideration in the case and the observations on these points must be regarded as obiter.
19. 'In re Rajah K. J. V. Nauidu', AIR 1946 Mad 235 (L) deals with a case of plaintiff's right to graze cattle, to take leaves of manure, to cut and take wood required for fuel and other building and domestic purposes etc., all free of charges in a forest area belonging to the defendant and for a prohibitory injunction. It was rightly held in that decision that the suit fell under Section 7(iv) (e) and not under Section 7(iv)(c). It must again be stated even with reference to this case that neither the proviso to Clause IV (c) nor the nature of a suit for lease arose for consideration in the case and the opinion, if any, on these points is an obiter. The same observation has to be made with reference to the decision in -- Sundarmal v. Murray', 16 ind Cas 963 (Cal) (M) which deals with a suit to recover possession of a mine.
In -- 'Jogal Kishor v. Tale Singh', 4 All 320 (N), it has been rightly observed, it must be stated with respect, that a suit in which plaintiff 'asserted his title to an easement of roof water over defendant's land......is for an easement and is governed by Section 7(iv)(e)'. As observed by Venkatarama lyer J. In : AIR1952Mad41 (J) it cannot be doubted that
'Section 7(iv)(e) provides for suits for a right to some benefit to arise out of land not hereto otherwise provided for. The language of this Clause will apply to suits to enforce rights of easements.'
That the plaintiff was right in paying court-fee on what he fixed arbitrarily as the value of the suit, was shown by His Lordship to be correct whether the law as laid down in AIR 1936 Mad 201 (K) was applied or whether the law laid down by the other cases referred to by him was applied.
AIR 1936 Mad 201 (K) has been referred to and considered in detail. The reasoning in that decision is quoted with approval. Anyway no indication is given of any disapproval. There was no reason for not following this decision apart from reference to some cases in which contrary view is taken though the point did not arise for decision in those cases as explained already.
20. What however has to be considered in cases of this kind is whether a suit for declaration that a person is or is not entitled to an easement and tor an injunction falls under Sub-clause 4(iv)(c) or (iv) (d) or (iv)(e). The main relief claimed is one for injunction. If the decree for declaration is unnecessary for granting the relief of injunction, there being 110 legal impediment for its grant without a declaration of plaintifi's right, the suit must be regarded as one' for injunction only governed by Section 4(iv)(d), Mysore Court-fees Act, corresponding to Section 7(iv)(d) of other Court-fees Acts as is clear from the decision of Wads-worth J. In AIR 1936 Mad 201 (K) following the ruling of their Lordships of Privy Council in 34 Cal 329 (B).
21. If, on the other hand, it is considered that a decree for declaration that the defendant in that case had no right of easement was a condition precedent for granting the relief of injunction it would be correct to hold that the suit is governed by Clause (iv) (c); but then the consequential relief claimed is in respect of injunction and not in respect of easement. Even in such a case, however, there would be no need to consider whether the relief in respect of easement is governed by the Proviso to Clause (iv) (c) as that proviso refers to the consequential relief.
22. Varadachariyar J. observed in AIR 1936 Mad 201 (K) followed in : AIR1952Mad41 (J), that:
'I would also point out that the words 'relief sought' in the proviso is relating to the words 'consequential relief in Clause (c) of the main Act. So the consequential relief in the present case does not relate to immoveable property at all, but only to a claim for recovery of money.'
Applying these observations to the facts of the case in : AIR1952Mad41 (J) or to the facts of the present case in both of which declaration is asked for with the consequential relief of injunction, it must be stated that the words 'relief sought' in the proviso must be regarded as relating to the consequential relief of injunction, even in case Clause (iv) (c) is applicable.
23. No question of interpreting the proviso with reference to right of easement arises as that is not claimed as consequential relief in this case. Moreover, no question of easement arises at all in 'this case as the declaration is in respect of the defendants being bound by some covenants to build a house according to conditions laid down by the Municipality. The declaration claimed in the suit is that the defendant is bound by certain covenants and that consequently an injunction has to be granted. There is no legal Impediment to be removed by granting a declaratory decree, to enable the Court to give the relief of injunction. Following the opinion of their Lordships of the Privy Council in 34 Cal 329 (B) the claim for declaratory decree is to be ignored as
'even if the plaint contains a prayer for a declaration or a cancellation there is good reason for holding -it to be one for a purely incidental but unnecessary relief.'
Just as the suit referred to in 34 Cal 329 (B) was considered as substantially one for possession though an unnecessary prayer for declaration was found in the plaint, the present suit for injunction must be regarded as one for injunction only in spite of there being an unnecessary prayer in the plaint for a declaratory decree also. The suit is governed by Sub-clause (iv) (d) of Section 4, Mysore Court-fees Act, and the plaintiff is right in paying court-fee according to his own valuation. The appeal is allowed and the order of the learned Subordinate Judge is set aside. He will take the suit on his file and proceed with it in accordance' with law.
24. The plaintiff is the owner of a site and building thereon in Gandhinagar, Bengalore City. Defendant l is the owner of a neighbouring site, she having purchased it with an incomplete build- ing thereon from its previous owner one U. R. Ramachar, and defendant 2 is her husband. The plaintiff instituted the suit in the court of the Subordinate Judge, Bangalore City, and prayed for a declaration that he is entitled to enforce against the defendants certain restrictive covenants laid down by the Bangalore City Municipality at the time of sale by them of the vacant sites in the area in question as to leaving of certain open spaces in their own site between his own and the defendants' property as well as in front of their own building and the nature of the building to be constructed on their own site. He also prayed for a permanent injunction directing the defendants from making any alterations in the building or erecting any constructions so as to convert or use it as a non-dwelling house such as a hotel. He valued the relief for purposes of jurisdiction and court-fee at Rs. 3,100/- and in the valuation slip attached to the plaint he stated that the market value of the land regarding which consequential reliefs were sought as per Section 4(iv) (c) proviso of the Mysore Court-fees Act was Rs. 3,100/-and he paid Court-fee on that value.
The defendants 'inter alia' pleaded that the court-fee paid was very inadequate and that the Subordinate Judge had no jurisdiction to try the suit. They represented that the plaintiffs' property was, according to himself, worth Rs. 50,000/-. The defendants had purchased their own property for Rs. 1,20,000/- just before suit and had spent half a lakh of rupees more on further construction. Whichever of the properties be considered as the subject-matter of the suit the same was beyond the jurisdiction of the Court.
25. After framing issues in respect of all the matters concerned in the suit the Subordinate Judge heard arguments on the first two of them, viz., regarding jurisdiction and court-fee. He held that the suit was not correctly valued for purposes of court-fee and jurisdiction and directed the plaint to be returned for presentation to the proper Court. Against that order the plaintiff preferred a miscellaneous appeal to this Court in Mis. A. No. 77/51-52 and that appeal was heard by a Division Bench consisting of Venkataramaiya and Balakrishnaiya JJ. Venkataramaiya J. came to the conclusion that the valuation of the suit did not fall within the proviso to Section 4 (iv) (c) and that the plaintiff's valuation was to be accepted. He was therefore for allowing the appeal.
Balakrishnaiya J. took a contrary view anti he was of the opinion that the plaintiff must value the portion of the defendants' property and pay court-fee on half the value. If however, he said, the whole property was to be in dispute then court-fee would have to be paid on half the value of the whole property. He was for dismissing the appeal. On this Venkataramaiya J. passed an order referring the case under Section 15 of the High Courts Act to a Full Bench. He observed that the point upon which there was difference-between himself and Balakrishnaiya J. related to a material question of court-fee on which there was a decision of a single Judge of this Court and to avoid the doubt and uncertainty it was necessary to have an authoritative decision.
26. Mr. Lakshminaranappa, learned Counsel for the Respondents, has at the outset raised a preliminary objection to the Full Bench hearing this matter. He contends that the present reference to the Pull Bench has not been validly made-as it has been made by one of the Judges forming the Bench and that there is nothing to show that the other Judge concurred with him in doing so. He urges that under Section 93, Civil P. C., as now in force in Mysore such a reference to a larger Bench could only have been made by both the Judges and that the power which was given under Section 15(3), Mysore High Court Act, to any one of the Judges to make a reference to the Full Bench has been taken away and is now no longer available. He-represents that under Article 246 of the Constitution of India the Civil Procedure is one of the items included in the concurrent list III and Schedule-VII and is a subject over which the Parliament has power to legislate concurrently with the Legislatures of the states. The concerned provision being one relating to procedure must give way to the specific provision to the contrary as contained in Section 68(3) of the Code & being contrary to it must be deemed to have been superseded or cancelled by virtue of Article 254(1) of the Constitution.
27. In Mysore the Constitution and powers of the Judges and procedure to be followed in certain matter by the High Court of Mysore (which was then called the Chief Court of Mysore and which by Act XII of 1930 one to be named assessee High Court) were laid down by the Mysore Chief Court Act I of 1884. That Act repealed certain Rules of the Government of India under which the Court was then still functioning and received the assent of His Highness the Maharaja of Mysore. It contains provisions mostly analogous or similar to those in the Letters Patent of other High Courts and the Government of India Act 1935 Sections. (sic). That Act was amended from time to time and when the State of Mysore merged with the territory of India and became subject to the Constitution Section 15(3) of that Act stood as follows:
'The decision of the majority of Judges comprising any Full Bench of the Chief Court or other Bench of the said Court consisting of not less than three Judges shall be the decision of the Chief Court. When a Bench of the Chief Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed in Section 98 of the Civil Procedure Code, or Section 429 of the Criminal procedure 'Code, as the case may be, or, at the discretion of either of the Judges composing the Bench, it shall be referred to a Full Bench and the decision of the majority of the Judges on such Full Bench shall be the decision of the Chief Court.'
The Code of Civil Procedure Act V of 1908 was extended to Mysore with effect from 1-4-1951 by the Code of Civil Procedure Amendment Act II of 1951. Section 20 of the latter Act provided that if immediately before the date on which the said Code came into force in any Part B state, there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed. Section 98, Civil P. C., as now in force in Mysore provides for a reference where the Judges composing the Bench differ in opinion on a point of law when the appeal has to be heard upon that point only by one or more of the other Judges and such point must be decided according to the opinion of the majority, if any, of the Judges who have heard the appeal including those who first heard it. Under Section 15(3), however, any material question upon which there is a difference of opinion can be referred to a Full Bench by either of the Judges composing the Bench and the decision of the majority of the Judges of such Full Bench will be the decision of the High Court: see - 'Nanjamma v. Lingappa', 54 Mys HCR 451 (FB) (O), where this matter has been dealt with. The question now raised is whether Section 15(3) is or has now become 'ultra vires' as being opposed to Section 98(2), Civil P. C.
28. in our opinion, Section 4(1) of the Code of Civil Procedure affords a complete answer to this objection. It provides that in the absence of any specific provision to the contrary nothing in the Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. The provision which has enabled one of the Judges to make a reference in this case was not contained in. the Mysore Code of Civil Procedure Act 3 of 1911. It is embodied in a special or local law and conferred a special jurisdiction or power on trie Judges of the High Court to adopt special procedure which is expressly saved by Section 4(a). This view is supported by a decision of the Federal Court reported in -- 'Megh Raj v. Allah Rakhia', AIR 1942 FC 27 (P).
In that case the Punjab Restitution of Mortgaged Lands Act set aside the normal procedure for redemption in the case of mortgages within possession and empowered the Collector, on application by the mortgagor, to extinguish the mortgage in certain circumstances or declare it extinguished and restore possession to him. The Act also barred jurisdiction of the Civil Court to entertain any claim regarding mortgages declared extinguished or any question regarding the validity of any proceedings under the Act. It was-contended before the Federal Court that that Act was void under Section 107, Clause (1), Government of India Act, to the extent it conflicted with Section 37, Indian Contract Act, or Section 9, Civil P. C., or the Limitation Act. That contention was negatived by the Federal Court. Varadachariar J., as he then was, pointed out 'that Section 37 of the Indian Contract Act which lays down that 'parties to a contract must either perform or offer to perform their respective promises' ' qualifies this statement by the words 'unless such performance is dispensed with or excused under the provisions of any other law.' When the statement of the general Rule itself is so qualified, it is difficult to see how a law which excuses performance of any particular kind of contract can be said to be inconsistent with the section, which must be taken-as a whole. The impugned law will only be one of the special cases contemplated or saved by the main or paramount Act.
Likewise, Section 9, Civil Procedure Code, postulates the jurisdiction of the ordinary Civil Courts to try all suits of a civil nature, except 'suits of which their cognizance is either expressly or impliedly barred'; and Section 4 lays down that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special form of procedure prescribed by or under any other law for the time-being in force. He referred to -- 'United Provinces-V. Mt. Atiqa Begum at pp. 26-& 29, 30 (Q), where it was held that the qualifying or saving words contained in Section 9 precluded the contention that an Act which bars a civil remedy in certain cases is repugnant to the provisions of the Code of Civil Procedure. He based his decision on the principle stated in (1932) 48 CLR 128 (R) that where the paramount legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restraining or qualifying the general provision made in it, it cannot be said that any qualification or restriction introduced by another law is repugnant to the provision in the main or paramount law. He has also referred in this connection to (1926) 38 CLR 441 (S) and to Wynes' Legislative and Executive Powers in Australia, p. 102.
29. The provision contained in Section 15(3) would also properly' fall under Item 3 of List II State List 'Administration of Justice' read with Item 85 'Jurisdiction and Powers' of all Courts except the Supreme Court with respect to any of the matters in List II. The pith and substance of the law contained in the Mysore High Court Act including Section 15 relates not simply or even mainly to procedure but to administration of justice and powers of the Judges 'inter se' of that Court in administering law in that Court and properly falls within the ambit of the State Legislature. As observed by Das J. In -- 'State of Bombay v. .Narottamdas Jethabhai', : 2SCR51 (T), thedoctrine of pith and substance would save any incidental encroachment by an impugned law if it is really and in substance within the legislative field of the particular Legislature. Unless any provision in that Act is against any of the provisions of the Constitution relating to the establishment and organization of the High Courts, which is excepted in Item 3, List II and which are provided for in Articles 214 to 225 of the Constitution or the special powers granted to the High Courts, say for instance by Articles. 226 to 230 or to the restriction imposed by Article 231 on the powers of the Legislature of any State to make laws with respect to the jurisdiction of a High Court with its principal seat in one State in relation to- any area outside that State, it cannot be said that the law contained in Section 15(3) of the High Court Act is affected by Article 254(1).
30. Article 225 of the Constitution provides that subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of the power conferred on that Legislature by the Constitution the 'jurisdiction' of and the law administered in existing High Courts and the respective powers' of the Judges thereof in relation to the administration of justice in that Court including any power to make Rules and to regulate the sittings of the Courts and members thereof sitting alone or in division shall be the same as immediately before the commencement of the Constitution. The meaning of the expression 'administration of justice' has been the subject of discussion in : 2SCR51 (T), which was a case arising out of provisions similar to those of the Government of India Act, and Mahajan J. has observed at page 83:
'It seems to me that the Legislative power conferred on the Provincial Legislature by Item 1 of List II has been conferred by use of language which is of the widest amplitude (administration of justice and constitution and organisation of all Courts). It was not denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of Courts established for the purpose of administration of justice.'
Fazl Ali J. has defined 'power' as being a comprehensive word which includes all the procedural and substantive powers which may be exercised by a Court. He has referred to some local and special Acts such as Section 13, Aircraft Act, 1934, Section 24, Arms Act, 1878, Section 10, Central Excises and Salt Act, 1944, Section 13, Food Adulteration Act, 1919 and the various Acts relating to money-lenders and money-lending in which power has been given to Courts to pass certain special and unusual orders which might not have been open to them under either the Code of Civil Procedure or the Code of Criminal Procedure or ordinary legislative enactments. He has also discussed tne difficulty of accepting an interpretation similar to the one now put forward for the appointment on the entries in the legislative list as involving a curtailment of the meaning of tne expression 'administration of justice' in sucli a way as to rot) it of us primary content--the jurisdiction and power of the Court without which justice cannot be administered. He has also referred to the anomalies and difficulties attendant upon such an interpretation.
31. That decision is of course based on the provisions of the Government of India Act and the powers of the various Legislatures given under it. Those items are now determent under the'Constitution, and the 'constitution' and 'organization' of the High Courts and the special powers of the High Court granted under the constitution has been taken away now from the ambit of the Provincial Legislation. But the power to legislate in respect of jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in the list including administration of justice by virtue of Items 3 and 65 still remain in the State List. This would I think cover a provision of law like Section 15(3) and save it under Article 225 read with Article 254(1) of the Constitution. There is therefore no force in the preliminary objection.
32. As regards the question referred to the Full Bench I have already expressed my opinion in AIR 1952 Mys 80 (D) that a suit like the present. Is really governed by Clause (e) of Section 4(iv), Court-fees Act, that the proviso to Section 4(iv)(c) does not apply to such a case and that the plaintiff can pay court-tee on the amount at which he values the relief sought. The plaintiff in that case is the neighbour of the defendants on one side of their house while the plaintiff in the present case is their neighbour on the other side and the allega tions in the pleadings are practically identical, Mr. Lakshminarainappa who also appeared in that case for the defendant has said nothing new which would persuade me to alter my view. I have referred in that case to the observations or Avory J. and Lord Hewart C. J. In - 'The King v. William Jones', (1929) 1 KB 211 (U) and to -- 'Durham and Sunderland Rly. Co. v. Walker', (1842) 114 ER 364 (p. 374) (V) and -- 'Shri Nath Singh V. Kashinathrao', : AIR1951All570 (W) on which he relied. He has now referred to case in -- 'Tolaram Relumal v. The State of Bombay', : 1SCR158 (X), (which was a case of a criminal appeal) wherein it has been observed that even if the words 'in respect of' used 'in Section 18, Bombay Rents. Hotel and Lodging HouseRates Control Act, are given as their widest meaning 'relating to' or with reference to the accused'sact did not aim at an offence. That has really .no bearing on the present discussion.
I have referred to and chosen to follow AIR 1936 Mad 201 (K), wherein Varadachariar J. (as he then was) held that the 'prima facie' interpretation of the expression, 'relief .sought is with reference to immovable property' is that the dispute in some sense should relate to immovable property, and to the following observation of Somayya J. In AIR 1946 Mad 235 (L), which has followed that decision:
'The only decision on the point is that of Varadachapiar J. In AIR 1936 Mad 201 (K) and, in my opinion that is the correct view to take. it is preposterous to say that where a plaintiff wants a right of passage across his neighbour's land the plaintiff should be called upon to pay court-fee on hall of the full value of the neighbour's land. There are other difficulties in the way of accepting the petitioner's argument. Obviously such cases come under Section 1, Clause (iv) (e) and that result is achieved by confining the Madras amendment to cases where, title to possession of immovable property is involved.'
33. Subsequent, to the decision in AIR 1952 Mys 80 (D), the same question came up for consideration before Venkatarama Ayyar J. (now a Judge of the Supreme Court) in : AIR1952Mad41 (J). That was a suit for a declaration that the .defendants who owned some neighbouring lands which were on a higher level than that of the plaintiff had no right to drain their water from their fields into that of the plaintiff and for a permanent injunction restraining the defendants from cutting open the bund and draining their surplus water into his fields. Venkatarama Ayyar J. held that the suit involved a simple case of easement and no question of title or possession and would fall under Section 7(iv)(e), corresponding to Section 4, Clause (iv) (e) of our Act. The plaintiff, he said, was at liberty to put his own valuation and that was final, and neither Section 1(v)(c) or (d) nor Article 17 (b) could have any application: The language of Section 7, Clause (iv) (e) which provides for suits for a right to some benefit to arise out of land, not therein otherwise provided for applied to suits to enforce rights of easement and there was ample authority for the position that such suits should be valued under that Clause. in support of his conclusion he has referred to the judgment of Varadachariar J. in AIR 1936 Mad .201 (K) and followed the judgment of Somayya J. In AIR 1946 Mad 235 (L). He has quoted With approval the observation of Varadachariar J. In AIR 1936 Mad 201 (K) that-
'If a suit is substantially one for easement it will fall not under sub-section (c) of Section 7(iv) but under Sub-clause (e) and the Madras Amendment introduced a proviso only to sub-clause CO. and not to Sub-clause (e).'
He has also referred to and discussed the decision of Jackson J. In AIR 1927 Mad. 348 (I). He has pointed out that Jackson J. had not in that case decided that such a suit fell within Section 7 (iv) (c). He had only decided that it did not fall Under Section 7, Clause Cv), viz., suits for possession, in that case, as in the case before him, the plaintiff had sought to establish a right of easement and had prayed for consequential relief by way of injunction; but as the plaintiff himself had submitted to the order of the lower Court to pay the higher court-fee and the defendant had come up in revision saying that court-fee should have been paid as in a suit for possession on the full value of the property, the High Court had no occasion to decide under which Clause the valuation fell. But, he observed, the words 'where relief was sought with reference to any immovable property' were construed even by Jackson J. as meaning 'involving possession of lands, houses or garden' and as nut including easements. Venkatarama Ayyar J. therefore was of the opinion that that case was ready some authority lor the position that, easement suits did not fall under Section 7 (iv) (c).
34. in this connection reference may be made usefully to a decision oi Wadsworth J. In AIR 1941 Mad 91 (C). There the plaintiff brought a suit for injunction to rest am the defendants from carrying out some projected works on his own lands which he alleged would endanger the customary flow of water to the piaimin's land. He valued the injunctions and paid court-fee on them. The valuation was objected to on the ground that the plaintiff should nave sought for declaration of his right of easement and injunction and that the case fell under Clause (c). Negativing that contention Wadsworth J. observed that in matters of court-fee and pecuniary jurisdiction the real substance, of the suit and not the form in which it is clothed should be looked into. It is only if it was legally necessary for the plaintiff to obtain . declaration of his right to easement before he could get an injunction to protect it the suit would have to be valued under Section 7 (iv) (c). It was incumbent on the plaintiff to pray for such a' declaration only when there was some legal obstacle which had to be removed before a consequential relief could be granted.
But if the plaintiff merely averred a title which could be established without the cancellation of a document or the nullification of any a adverse title and only claimed a relief which would naturally flow from the establishment of the title winch he averred it was not necessary lor the plaintiff to pray expressly lor a declaration of that, title and in such a case it was not necessary for him to pay court-lee on the looting that the finding which he sought as to his title was really a declaration necessarily required as a preliminary to the grant of an injunction and it did not matter whether he had or had not asked tor a declaration in the plaint. The plaint in such a case fell under Section 7 (iv) (d) and not under Section 7 (iv) (c) and the plaintiff was entitled to put his own valuation' on the injunction which he sought and the Court had no power to revise that valuation even if it was palpably inadequate. He referred to AIR 1927 Mad 348 CD at p. 94 of the report and has interpreted that judgment as holding that the suit tell under Section 7(v) (c) and that the subject-matter was not land but the value of the easement.
35. Balakrishnaiya J. has tried to distinguish the cases reported in AIR 1936 Mad 201 (K) and AIR 1946 Mad 235 (L) and has relied on some observations of Jackson J. In AIR 1927 Mad 348 CD in preference to the judgments of Varadachariar J. and Somayya J. I would respectfully agree with the interpretation put upon the judgment of Jackson J. by Venkatarama Ayyar J.
36. There is also another aspect from which the plaintiff's suit can be viewed. The disputes between the parties are really not with reference to any claim by the plaintiff of any right, title or interest in the immovable property of the defendants or involve a declaration of his title to or right to possession of the property owned by himself. They merely relate to the implementation or enforcement which the plaintiff seeks for the better or more beneficial enjoyment of his own property of some terms and conditions said to have been laid down by the Municipality for observance by all the purchasers of their sites and which the defendants say that the plaintiff cannot do as those terms and conditions are only to govern as between himself and the Municipality and cannot be availed of by the plaintiff.
37. In AIR 1952 Mys 80 (D), I have referred to the hardship, uncertainty and difficulty in valuing a suit like the present if the contention of the Respondents were to be accepted. If with reference to immovable property in connection with a suit means relating to or in respect of immovable property, however remote may be the connection or reference, it is a question why the defendants' property should be the subject for plaintiff's valuation of his relief. It might With equal force of logic apply to the plaintiff's property and what is the disputed property. Is it the site or building on it or both? is the valuation dependant on and vary with the stage at which the defendants house construction stands at the time of the suit and how an incomplete building to be valued? 1 have pointed out in AIR 1952 Mys' 80 (D) how difficult it is to determine the valuation if the same is to be made on the 'basis of the likely loss or damage to the plaintiff as directed in -- 'Mir Akhtar Hossain v. Gurupada Haldar : AIR1940Cal560 . That difficulty-is clearly apparent from the direction contained in the concluding paragraph of Balakrishnaiya J.'s Judgment wherein he has directed the Court below to give an opportunity to the plaintiff 'to value the portion of the property in dispute and allow him to pay court-fee on half the value of such disputed property'; and added that 'if however the whole property is 'likely to be in dispute' then the court-fee will have to be paid on half the value of the whole property.'
Far from finding a ready and expeditious method of determining the court-fee on which would depend the jurisdiction of the Court such a direction would require the embarking by the Court on an elaborate enquiry where a great deal of controversy would be raised as to the exact portion or part of the property of defendants which is likely to be affected by granting the injunction, even before it is granted or its exact nature and scope determined, and the determination of the market value of such portion. Instead of trying the suit on its merits and doing justice between the parties, the Court will be losing itself in a maze of complicated questions which are really collateral and very subsidiary and with respect to which She Respondents cannot Justly claim to have any real and vital interest. The present case itself affords a striking example of the delay and difficulty attendant on the launching of such a comparatively barren enquiry for the purpose and. In the hope of merely collecting some more court-fee.
38. Mr. Lakshminaranappa appears to have raised before the Bench the question of the finality of the valuation made by a plaintiff in such a case. That matter was However not argued before us and it has not been shown how the valuation made by the plaintiff in this case is unduly low or arbitrarily undervalued. Venkataramaiya J. has, in support of his order which accepts the plaintiff's valuation, referred to the cases bearing on the point including -- 'Narasamma v. Venkat-appa', 23.. Mys OCR 197 (FB) (Z), wherein Sir Leslie Miller C. J, has observed at page 208 that the language of Section 4 (iv) (c) is in favour of the view that the plaintiff's valuation cannot be questioned (see also--'Chinnammal v. Madarsa Rowther', 2.7 Mad 480 (Zl) and : AIR1952Mad41 (J)).
39. I therefore agree with Venkataramaiya J. and would answer the reference by saying that the plaintiff's suit is really governed by Clause (e) of Section 4 (iv), Court-fees Act and that the plaintiff could have simply valued the relief sought and paid court-fee on the amount on which he valued it. The plaintiff has somewhat complicated the matters by fixing the value of his suit on the basis of half the value of the portion of the defendants' site which, according to him, he should have left vacant and for the purpose of deciding this case that may be accepted as sufficient and proper valuation.
40. I think the plaintiff in this case has been somewhat to blame for not taking a definite stand as to the exact Clause under which the suit was to be valued and this has led to this reference, I would, therefore, while allowing the appeal, direct the parties to bear their own costs in this court.
41. Appeal allowed.