1. This revision petition raises a question of court-fee.
2. A few facts may be necessary for the disposal of the same. The plaintiff filed the suit, out of which this petition arises, for specific performance of an agreement dated 23-3-1948. by which defendant 1 agreed to convey four items of properties to the plaintiff for a consideration of Rs. 35,000/-. By an arrangement between them defendant 1 conveyed Items 1 and 3 in favour of the plaintiff and Hem 4 in favour of his mother and failed to convey the other item, namely, item No. 2. The plaintiff brought the suit for specific performance of the agreement between him and first defendant and sought the relief of conveyance of the second item. He paid court-fee on Rs. 4,060/-on the basis that represented the amount due by him to defendant 1 for conveyance of item No. 2. Defendant 2 in his written statement raised an objection that the suit had to be valued on the basis of the agreement and court-fee had to be paid as provided under Section 40(a) of the Karnataka Court-fees and Suits Valuation Act. 1958, hereinafter referred to as the 'Act'. This objection was upheld by the trial Court.
3. Mr. V.K. Govindarajulu, the learned counsel for the plaintiff says that a conveyance is sought only in respect of the second item of the properties mentioned in the agreement and he is therefore not bound to pay court-fee leviable On a claim for specific performance of the agreement. His argument is one for specific performance of the whole contract but only for performance of conveyance of the second item. He relied upon a decision in R.S. Jhavar v. Thanicakcbala Gramani : (1966)2MLJ38 . In that decision Section 42(a) of the Madras Court-fees and Suits Valuation Act. which is similar to Section 40(a) of the Act was being considered. The learned Judge distinguished an earlier decision of the Madras High Court rendered by Venkataramana Rao. J. in Dullabho Sahu v. Adinarayana : AIR1937Mad831 and said:
'The intention of Section 42(a) of the Madras Court-fees and Suits Valuation Act (XIV of 1955) seems to be that, where a Party who has entered into a contract to purchase certain properties is able to get conveyance of a portion of the properties only, he can file a suit for specific performance of the unperformed portion of the contract and can pay court-fee on it. He is liable to pay court-fee only on the value of the unperformed portion of the contract of which he seeks specific performance and is not liable to pay court-fee on the entire value of the properties covered by the original contract.'
The learned Judge appears to have taken this view on the assumption that the word 'computed' occurring in Section 42 (a) of the Madras Act had been introduced for the first time and such a word was not found in Section 7(x) of the Court-fees Act (VII of 1870). Venkataramana Rao, J. in Dullabho Sahu's case, while considering Section 7(x) of the Court-fees Act (VII of 1870) held:
'There can be no question that so far as a conveyance is sought in favour of the plaintiff in respect of defendant 2's interest, the suit is essentially one for specific performance of a contract and court-fee will have to be levied under Section 7, clause (x) Court-fees Act .....The fact that certain properties have been sold by mutual arrangement will not alter the nature of the claim which is essentially one for specific performance of contract of sale which is implied in the said arrangement. How, I understand the relief claimed is this: 'The plaintiff requests the Court to give effect to the arrangement which he entered into, but desires that in effecting the conveyance only the properties described in the schedule should be conveyed and possession in respect thereof should be given. As the Court will in any event have to declare the original arrangement entered into and only on that basis should give the relief to the plaintiff, the suit will have to be valued on the consideration mentioned therein. In a suit for specific performance, the view has always been taken by this Court that there is no Question of primary and secondary relief and both the execution of the conveyance and delivery of possession are essential reliefs. Further, without getting a conveyance it is not possible to get possession.'
In my opinion, the learned Judge in Jhavar's case obviously misread the decision in Dullabho Sahu's case on the assumption that the word 'computed' was not in Section 7 of the Court-fees Act (VII of 1870). Mr. Govindaraiulu also relied upon another decision in Thakur Prasad Sineh v. Smt. Janki Devi : AIR1967Pat281 . In that case, the contract had been partly performed and the suit had been instituted for specific performance of the rest. Therein, it was held that on no principle can the plaintiffs be asked to pay ad valorem court-fee on the full consideration mentioned in the contract as no relief was asked for in respect of the entire property covered by the contract. This view ignored again the provisions of Section 7 of the Court-fees Act (VII of 1870). Therefore. I am not in agreement with the view expressed in the above two cases.
4. Mr. N. Venkatachala, the learned Government Advocate on behalf of the Government and Mr. Pranesha Rao. learned Advocate on behalf of the defendant, relied upon Gudia Dullabho Sahu's case and the decision in S.P. Gupta v. Abdul Rahman : AIR1958All851 and contended that the suit essentially being one for specific performance of a contract. court-fee payable was on the sum agreed to be paid under the original contract and under Section 40(a) of the Act the Court-fee payable is on the amount of consideration mentioned in the contract. Section 40(a) of the Act provides that in a suit for specific performance, whether with or without possession, fee shall be payable (a) in the case of a contract of sale, computed on the amount of consideration. There is no ambiguity at all in this provision. In a suit for specific performance, based on a contract of sale, court-fee has to be computed on the amount of the consideration. That being so, I am entirely in agreement with the view expressed in Gudia Dullabho Sahu's case, which has been followed by a Bench decision in Gupta's case. Therefore, the trial Court was justified in asking the plaintiff to pay court-fee on the amount of consideration mentioned in the contract.
5. In the result, this revision petition is dismissed. No costs.
6. Revision dismissed.