Skip to content


Visvarama Hotels Ltd. Vs. Anjuman-e-imamia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. Nos. 2221 and 2995 of 1982 C/w W.P. No. 7556 of 1983
Judge
Reported inILR1983KAR223; 1984(2)KarLJ185
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 7, Rule 11 - Order 23, Rule 1; Constitution of India - Articles 226 and 300; ;Karnataka Court Fees and Suits Valuation Act, 1958
AppellantVisvarama Hotels Ltd.
RespondentAnjuman-e-imamia
Advocates:N. Santhosh Hegde, Adv. General for State;G. Ramaswamy, A.N. Jayaram, Janardhana, P.P. Muthanna, K. Chanabasappa, H.N. Narayan, Mir Masood Ali Khan, K. Bakthavathsala, G.V. Shantharaju and D.L.N. Rao
Excerpt:
(a) civil procedure code, 1908 (central act no. 5 of 1908) - section 115 -- jurisdiction -- connotation -- determination of court fee not open to revision unless the same suffers from illegality in exercise of jurisdiction.;in the suit filed for declaration, prepetual and mandatory injunction, the defendants pleaded that suit was undervalued and sought determination of proper court fee. after hearing, court called upon plaintiffs to properly value the suit and pay the deficit court fee, on the basis of valuation applying comparable sales method. plautiff's revision petition against the order was dismissed and the s.l.p. was rejected by supreme court.;as per the order of trial court, which had become final, fresh valuation slip was filed and after hearing, applying the capitalisation.....orderputtaswamy, j.1. civil revision petition no. 2221 of 1982 is filed by defendant-2 and is directed against the order dated 8-7-1982 of the xii additional city civil judge, bangalore in o.s. no- 8041 of 1980 brought by respondents 1 to 3 as plaintiffs in that suit. civil revision petition no. 2995 of 1982 is filed by the state of karnataka against the very same order of the learned judge. but, in that case the state has filed a memo on 30-3-1983 praying for permission to withdraw the same, which has given rise to writ petition no. 7525 of 1983 by one sri g.p. shivaprakash, an advocate of this court. in the course of my order hereafter, i will refer to those who are parties in o. s. no. 8041 of 1980 by their array in that suit, the state of karnataka, petitioner in c. r. p. no. 2995 of.....
Judgment:
ORDER

Puttaswamy, J.

1. Civil Revision Petition No. 2221 of 1982 is filed by defendant-2 and is directed against the order dated 8-7-1982 of the XII Additional City Civil Judge, Bangalore in O.S. No- 8041 of 1980 brought by Respondents 1 to 3 as Plaintiffs in that suit. Civil Revision Petition No. 2995 of 1982 is filed by the State of Karnataka against the very same order of the Learned Judge. But, in that case the State has filed a memo on 30-3-1983 praying for permission to withdraw the same, which has given rise to Writ Petition No. 7525 of 1983 by one Sri G.P. Shivaprakash, an Advocate of this Court. In the course of my order hereafter, I will refer to those who are parties in O. S. No. 8041 of 1980 by their array in that suit, the State of Karnataka, Petitioner in C. R. P. No. 2995 of 1982 which is Respondent-I in Writ Petition No. 7556 of 1983 as the State and Sri G. P. Shivaprakash, Petitioner in Writ Petition No. 7556 of 198) as the Petitioner.

2. In order to appreciate the several questions that arise in these cases, that are connected, some of which are even novel and appear to have arisen for determination for the first time before a High Court in the Country, it is necessary to notice the salient facts in the first instance.

3. On 15-10-1973 Muthavallies of a Wakf called 'Against Ali Askar Wakf' created by one AH Askar of Bangalore,paternal grand father of Sir Mirza Esmail, on e of the illustrious Dewans of old Mysore, with the approval of the Karnataka Board of Wakfs, defendant-5 leased out an extensiveimmovable wakf property bearing Municipal No. 25 situated on Sankey Road, a posh locality of Bangalore City, consisting of vacant land measuring about 1,65,762 sq. ft. or about 3 acres 8 guntas with an existing old building thereon known as 'Baqarbad' to defendant-1 on the terms and conditions stipulated in the lease deed of that date. On 13-9-1974, defendant-1 assigned the said lease to defendant-2 who had thereafter obtained its extension from the Muthavallies and defendant-5 for 90 years.

4. On the basis of the aforesaid deeds and their extension, defendant-2 demolished the existing old building and has constructed a 'five star' hotel making heavy investments over the same and is running a hotel under the name and style of 'Windsor Manor' defendant-4 from about 1982.

5. On 15-9-1980, the plaintiffs for themselves and on behalf of Shia Muslims, have brought O.S. No. 8041 of 1980 in the Court of the City Civil Judge, Bangalore (i) for a declaration that the lease deeds and the assignment were null and void and were not binding on them; (ii) for a perpetual-injunction to restrain the defendants from entering upon the suit schedule property or otherwise altering its condition and (iii) for a mandatory injunction to restore the property to its original condition as was practicable in the circumstances of the case. On the valuation and Court fee, with which alone we are concerned in these cases, the plaintiffs valued their suit at Rs. 26,000/- and paid a Court fee of Rs. 2,600/- on their plaint. Along with their plaint, the plaintiffs also filed a separate valuation slip.

6. In its written statement, defendant-2 pleaded that the plaintiffs had deliberately undervalued the suit and had not 'paid the proper Court fee payable thereon under theKarnataka Court Fees and Suits Valuation Act, 1958 (Karnataka Act 16 of 1958) (hereinafter referred to as the Act.) Apart from this, defendant-2 also filed a separate application I.A. No. III on 29-9-1980 before Court to determine the proper valuation and Court fee paid which was opposed by the plaintiffs. In this view, the Learned Judge heard both sides on the question of valuation and Court fee paid on the plaint and made a considered order on 11-12-1981 which will be hereafter referred to as the first order calling upon the plaintiffs to properly value their suit and pay the deficit Court fee thereon on or before 16-12-1981. The plaintiffs challenged the said order of the Learned Judge before this Court in C-R.P. No. 6 of 1982, which was dismissed by Bopanna, J. on 12/13-4-1982 and their Special Leave Petition No. (Civil). 2253 of 1982 filed before the Hon'ble Supreme Court under Article 136 of the Constitution Againstinst the said orders, was rejected on 28-5-1982 at the admission stage,

7. Evidently in compliance of the order made on 11-12-1981 that had become final, the plaintiffs filed a revised valuation slip on 17-6- 1982, which was again objected to by defendant-2. On that valuation, that Learned Judge again heard the parties and made an order on 8-7-1982. which will be hereafter referred to as the second order fixing the market value of the property at Rupees Seven Lakhs on which basis he called upon the plaintiffs to pay the consequent deficit Court fee, with which they have complied and that order has now given rise to these proceedings before this Court.

8. In C.R.P. No. 221 of 19 12 difendant-2 has urged that the valuation fixed by the Learned Judge which, was contrary to his first order was without jurisdiction and illegal. In C.R.P. No. 2995 of 1982 the State has urged that it should have been notified and the valuation fixed was too low. In Writ Petition No. 7556 of 1983 the Petitioner has urged that the decision of the State to withdraw the Revision Petition that results in huge loss of revenue was irrational and arbitrary for which reason this Court should compel it to prosecute its revision before this Court.

9. Sriyuths G. Ramaswamy of Madras Bar, N. Santhosh Hegde, Learned Advocate General of the State and G. V. Shantharaj have appeared for defendant-2, the State and the Petitioner respectively. Sriyuths K. Channabasappa and D. L. N. Rao appeared for the plaintiffs and defendant-5 respectively.

10. Both sides have argued their cases at great length and have relied on a large number of authorities in support of their respective cases and those that are relevant will be noticed by me at the appropriate stages.

11. Sri Ramaswamy has urged that, defendant-2 was entitled to challenge the order of the Court below even on the determination of Court fee as 'it involved a question of jurisdiction.' In support of his contention Sri Ramaswamyhas strongly relied on the very last sentence in the penultimate para of the ruling of the Supreme Court in SriRathnavarmaraja -v.- Smt. Vimla, A.I.R. 1961 S.C. 1239 and the explanation of those observations in Shri M.L. Sethi -v.- Shri R.P. Kapur, : [1973]1SCR697 and Shamsher Singh -v.- Rajinder Prashad and Ors., : [1974]1SCR322 .

12. What is true meaning of the term 'jurisdiction' occurring in Section 115 of the Code of Civil Procedure must be clearly kept in view in dealing with the questions that arises in these cases and in any event in the two Civil Revision Petitions. On that question, without, unnecessarily attempting to parade idle scholarship and burden the order, it is enough to notice one of the rulings of the Supreme Court in Sethi's case. In Seth's case Mathew, J. reviewing all the earlier cases of the Court, the Privy Council and the House of Lords, explained the meaning of the term'jurisdiction' occurring in Section 115 of the Code in these words :

'10. The word 'Jurisdiction' is a verbal cast of many colours. Jurisdiction originally seems to have bad the meaning which Lord Baid ascribed to it in Anisminic Ltd. -v.- Foreign Compensation Commission, (1969) 2 AC 147, namely, the entitlement 'to enter upon the enquiry in question'. If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denmm in R.V. Bolton (1841) 1 QB 66. He said that the question of jurisdiction is determinable at the commencement not at the conclusion of the enquiry. In Anisminic Limited (1969) AC 147 Lord Reid said :

''But, there are many cases where, although the Tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have gives its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in thecourse of the enquiry to comply with the requirements of natural justice. It may in perfect good faith havemisconstrued the provisions giving it power to act so that it failed to dealwith the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive'.In the same case, Lord Pearce said :

'Lack of jurisdiction may arise in various ways. There may fee an absence of those for milthere or things which are conditions precedent to the Tribunal having any jurisdiction to embark on anenquiry. Or the Tribunal may at the end make an order that it has no jurisdiction to make. Of in the intervening stage while engaged on a proper inquiry, the Tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity'. 11. The dicta of the majority of the House of Lords, in the above case would show the extent to which 'lack' and 'excess' of jurisdiction havebeen assimilated or, in otherwords, the extent to which we have moved away from the traditional concept of ''jurisdiction'. The effect of the dicta in that case is to reduce the difference betweenjurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of 'a statute' can be representeddcaP .as 'basing their decision on a matter with which they have no right to 'imposing an unwarranted condition' or 'addressing themselves to a wrong question'. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there isexcess of jurisdiction or merely error within, jurisdiction can be determined only by construing the empowering statute, which will give little guidance.lt is really a questionof how much latitude the Court is prepared to allow. In the end it can only be a value judgment (See H.W.R. Wade, ''Constitutional and Administrative Aspects of the Anosmatic case', Law Quarterly Review, Vol. 85, 1969, P. 198). Why is it that a wrong decision a question of limitation orre judicial was treated as a jurisdictional error and liable to be interfered with in revision? It is a bitdifficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decreeembodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court'.

Bearing this enunciation, it is necessary to examine the questions urged in these cases.

13. A sentence in a ruling cannot be read in isolation and out of context. The principles of contextual interpretation familiar to every lawyer and Judge is equally applicable inunderstanding a principle or ratio decidendi, if any enunciated in a ruling by the Supreme Court. As pointed out by Hegde, J. in H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bhahadur and Ors. etc. -v.- Union of India, : [1971]3SCR9 'Judges are not oracles'. Every statement in a case should be understood with due regard to the facts of the case, the true question that arose for determination and the answer furnished to that question or the ratio decidendi or the principles enunciated, which alone will be the declaration of law or the statement of law of the ruling. A contention can neither be based or accepted solely on the basis of one sentence: that too, out of context. Any such attempt may render the law of precedents to a mere syllogism in logic and may even yield astonishing results. On this analysis and even otherwise the last sentence in the penultimate para of Rathnavarmaraja's case cannot be held to support the contention of Sri Ramaswamy.

14. In Sethi's and Shamsher Sing's cases, the Court was not considering a case of a defendant exclusively challenging the determination of Court fee by a subordinate Court in revision under Section 115 CPC. Hence, the ratio in Sethi's and Shamsher Singh's cases that does not evenattempt to take a different view than the one expressed in Sri Rathnavarmaraja's case does not really bear on the point and assist Sri Ramaswamy.

15. On the foregoing discussion, I have no hesitation in rejecting this contention of Sri Ramaswamy.

16. Sri Ramaswamy has next contended that the ruling of the Supreme Court in Rathnavarmaraja's case rendered by a Bench of three Learned Judges was contrary to an earlier larger Bench ruling of that Court in Nemichad and Anr. -v.- Edward Mills Co., Limited and Anr., : [1953]4SCR197 and on the principles enunciated in Nemichand's case, defendant-2 was entitled to challenge the decision of the Court below on the question of Court fee.

17. When there is conflict between two rulings of the Supreme Court on a question that arises before a High Court or a subordinate Court in the Country, in such an event, the law declared by a larger Bench of that Court, is binding on the High Courts and the subordinate Courts and not the law declared by a smaller Bench of that Court, is set at rest by the Supreme Court and is no longer in doubt. But, the real question is whether there is such a conflict in the two cases.

18. In Sri Rathnavarmaraja's case the facts, in brief were these: In a suit filed by Smt. Vimla as the plaintiff for various reliefs in relation to several propertiescompendiously called as 'Nelliyadi Beedu' or Dharmastala, she had valued her suit at a particular sum and had paid certain Court fee in accordance with the Madras Court Fees and suits valuation Act, 1955 which was then in force in the District of South Kanara, now called as Dakshina Kannada, a part of old Madras area of the New State of Mysore, now called as Karnataka. The defendant in that suit contested the valuation and the Court fee paid by the plaintiff and sought for the appointment, of a Commissioner to make a propervaluation which the Court rejected and held that the Court fee paid by the plaintiff was sufficient. In C.R.P. No. 272 of 1957, the defendant challenged the said order of the trial Court before this Court, which by its order dated 6-12-1957 set aside the same and remitted the matter to the Trail Court for fresh determination. In pursuance of the said order of remand, the Trial Court appointed a Commissioner and decided on the question of Court fee, which was again challenged by the defendant in revision before this Court. Qn 30-5-1960 this Court dismissed the said revision Petition and substantially affirmed the order of the Trial Court. The defendant challenged the order made by this Court on the second occasion before the Supreme Court complaining that the Court fee paid by the plaintiff on her suit under the Madras Act was grossly insufficient. In dismissing the said appeal of the defendant, the Supreme Court speaking through Shah, J. (as he then was) expressed thus :

'(2) The Court-fees Act was enacted to collect revenue for thebenefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that thedefendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and byentertaining petitions preferred by the defendant to the High Court inexercise of its revisional jurisdiction against the order adjudging Court fee payable on the plaint, all progress in the suit for the trial of thedispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate Court fee on his plaint. Whether proper Court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the Court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction inrevision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by Clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the Court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper Court fee has not been paid by the plaintiff has still no right to move the superior Courts by appeal of in revision against the order adjudging payment of Court fee payable on the plaint. But, Counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question., the defendant has been invested with a right not only to contest in the Trial Court the issue whether adequate Court fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the Court. Reliance in support of that contention is placed upon sub-section (2) of Section 12. That subsection, in so far as it is material.

provides :

'Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject matter of the suit has not beenproperly valued or that the fee paid is cot sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid....'(3) But, this Section only enables the defendant to raise a contention as to the proper Court fee payable on a plaint and to assist the Court in arriving at a just decision on that question. Our attention has not been invited to any provision of the Madras Court Fees Accuracy otherStatute which enables the defendant to move the High Court in revision against the decisions of the Court of first instance on the matter of Court fee payable in a plaint. The Act, it is true by Section 19 provides that for the purpose of deciding whether the subject matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient the Court may hold such enquiry as it considers proper and issue a com-mission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the Legislature to collect Court Fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the Court fee payable. In our view, the High Court grievously erred in entertaining revision applications on, questions of Court Fee at the instance of the defendant, when noquestion of jurisdiction was involved.'

The Act, a uniform Act enacted by the new State, is virtually a re-enactment of the Madras Act and, therefore theprinciples stated in Sri Rathnavarmaraja's case continue to govern the question. In this ruling, the Supreme Court has ruled that a defendant cannot challenge the determination of Court Fee, however, erroneous that may be. Earlier, I have also noticed that this ruling lease not been dissented in Sethi's or Shamsher Singh's cases or any other case that has been brought to my notice.

19. In Nemichand's case, the Supreme Court was considering the sufficiency or otherwise of the Court fee paid on a memorandum of appeal by the appellant who was the plaintiff in the Trial Court and had given up a portion of his claim in his appeal before the Supreme Court. On these facts, the Court considered whether it was open to the appellant to give up a portion of the claim and if so, the Court fee paid by him on his memorandum of appeal restricting the same to a portion of his claim only, was sufficient or not. In Nemichand's case, the Court had no occasion to examine the question that came up for consideration and decided in Sri Rathnavarmaraja's case. From this it follows, that the ruling in Nemichand's case though by a larger bench is not in conflict with the later ruling of the Supreme Court in Sri Rathnavarmaraja's case and, therefore? the question of this Court following the earlier case in preference to the later case does not arise.

20. On the above analysis, it follows that on the ratio, of the ruling of the Supreme Court in Sri Rathnavarmaraja's case, which is still good law, defendant-2 cannot challenge the determination of Court fee made by the Court below and to that extent its revision Petition, if any is liable to be dismissed.

21. What I have held earlier does not mean that this Court in its suo moto revisional powers under Section 115 C.P.C. is precluded from examining the same and pass an appropriate order as the circumstances justify. I, therefore propose to examine this question, which unfortunately is so inextricably mixed up with the valuation of the suit involved and cannot be separated at all.

22. Sri Ramaswamy has urged that the order made by the Court below on the valuation was contrary to its earlier decision that had become final and the same suffers from an error of jurisdiction and an illegality in the exercise of its jurisdiction.

23. Sri Channabasaappa in supporting the order on the very grounds found by the Learned Judge and other grounds has urged that notwithstanding any illegality or irregularity in that order, which had not occasioned failure of justice to defendant-2 this Court should decline to interfere with the same.

24. The valuation in a suit that can even affect the jurisdiction of a Court to entertain and decide that suit, may also affect the Court fee payable. In a given case the Court fee payable may depend on the valuation. But, valuation never depends on the Court fee payable under the Act. Both are separate and distinct and the former can never be mixed up with the latter. Valuation for purpose of suit and jurisdiction cannot be confused with the valuation for purposes of Court fee. Both are separate and distinct.

25. So far as valuation of a suit, the right of the defendant to contest the same is absolute. When thedefendant has a right to object to the valuation, his right to challenge the same either in an appeal or a revision Petition is not controlled by any other factor as in the case oi determination of Court fee where lie is only given the right to bring the sufficiency or otherwise to the notice of the Court and can do no more, if the determination on that question itself even turns out be wrong. With this back-ground I proceed to examine this serious question, noticing the necessary additional facts, the previous order and the present order.

26. On the valuation and Court fee, the plaintiffs in their plaint stated thus :

'19. VALUATION AND COURT FEE : The entry and construction-in-progress upon the suit schedule property by defendants 1, 2, 3 and 4 is solely on the basis of the alleged lease and assignment (and not in any other independent right in any of them), accordingly the subject matter is valued with reference to the provisions of Section 41 of the Karnataka Court Fees and Suits Valuation Act, 1958 read with Section 24 thereof for the declaratory prayer and consequential eviction. Separate valuation is made under the provisions of 26 of the said Act for theinjunctive reliefs; as per valuation slip filed separately. Thus the subject matter of the suits is valued at Rs. 26,000/- and a Court fees Rs. 2,600/- is paid thereon accordingly'.

In the valuation slip accompanying the plaint, the plaintiffs stated thus :-

VALUATION SLIP

Sl. No.

Description Value Rs.

Court Fee Rs.

1

2 3

4

1.

Valuation underSection 41(1)(e) read with Section 24 of the K. C. F. & S. V. Act on monthly rental basis : monthly rent being Rs. 2,000/- 2000X12=24,000...........

24,000/-

2,400

2.

Valuation for perpetual injunction under Section 26 of the Act.

1,000/-

100/-

3.

Valuation formandatory injunction under Section 26 of the Act.

1,000/-

100/-

Accordingly aCourt fee of Rs. 2,600/- is paid asper the provisions of the Act (as amended)'.

As noticed earlier, defendant-2 contested the valuation and the Court fee paid by the plaintiffs.

27. In conformity with their stand in the plaint and the valuation slip, the plaintiff inter alia, urged that the valuation of their suit at Rs. 26,000/- was proper and the Court fee paid thereto by them was in conformity with Sections 41 and 44 of the Act. But, the learned Judge in his first order did not agree with either of these claims and held that the valuation had to be made under Section 24(b) read with Section 7(d) of the Act. On that conclusion, the learned judge directed the plaintiffs to file a fresh valuation slip and pay the necessary deficit Court fee thereon.

28. In rejecting the claim of the plaintiffs that the suit had to be valued under Section 41(l)(e) of the Act, the Learned Judge observed thus:

'The suit is one for declaration that the lease deeds in favour of defendants arc null and void and for consequential injunction and not to disprove any occupancy right. Even if it be so, to fall under section 41(1)(e) the suit has to be by the land-lord against the defendants.Admittedly, the plaintiffs are not the land-lords and hence there is no merit in this contention of the Learned Counsel for the plaintiffs'.

In the succeeding para, the Learned Judge rejected the claim of the plaintiffs based on Section 14 of the ReligiousEndowments Act, 1863 in these words:

'Therefore, by no stretch of imagination one can hold that the suit is one under Section 14 of the Religious Endowment Act 1863 and hence it is not governed at all by Section 44 of the KarnatakaCourt Fees and Suits Valuation Act'.

Ultimately on the mode of valuation that should be adopted under Section 24(b) r/w Section 7(d) of the Act, the Learned judge expressed thus:

'In the instant suit the subject matter of the suit is a house site which had a building therein. It is not an agricultural land or any other land paying revenue to the Government. Therefore, the value of the subject matter of the suit cannot be determined with reference to Section 7(a), (b) and (c) of the Karnataka Court Fees and Suits Valuation Act, Section 7(2)(d) provides for determination of the market value for the purposes of Court fee in relation to the land which is a house site and as per that provision the value has to be the market value of the land. The market value has to bedetermined on the basis of the actual value that the property will fetch in 'pen market as on the date of the suit and not a notional value. Therefore, in the instant suit the plaintiff has to value the relief of declaration on the consequential injunction sought hasreliefs (a) and (b) in the plaint under Section 24(b) read with Section 7(b) of the Karnataka Court Fees and Suits Valuation Act'.

Whatever be one's views on this order, the same affirmed by this Court has become final and that aspect should never be lost sight of.

29. Evidently, in the purported compliance of the afore-said order, the plaintiffs filed a revised valuation slip on 17.6.1982. The said valuation slip to which defendant-2 Againstin objected and even urged for rejection of the plaint under Order 7 Rule 11 of the CPC reads thus:

REVISED VALUATION SLIP

Pursuant to the Order of the Hon'ble Court that the relief shall be valued under the provisions of Section 24(b) of the KarnatakaCourt Fees and Suits Valuation Act, 1958 (as amended) the plaintiffs submit the revised valuation slips as under :-

Sl.No.

Description of relief Value

Court Fee Payable.

1

23

4

1.

For declaration of right ofthe plaintiffs : The plaintiffs do not (none of them) claim title to the immoveable property nor seek the possession thereof for themselves but only claim aright with reference to immoveable property, the said propertyclaimed by them is a right to use for religious purposes the said right beingneither marketable nor transferable, said right being treated as propertywithin the provisions of Section 24(b)

Rs.

Rs.

On an examination of this revised valuation slip, the Learned Judge, in my opinion, has rightly held that the same was not in conformity with his earlier order and has rightly rejected the same. Sri Channabasappa did not rightly seek to justify the same.

30. Before the Learned Judge, the plaintiffs while pressing for acceptance of the revised valuation slip, pleaded that on the question of valuation, the Court if it considers necessary may record evidence and decide the same. But, the Learned Judge in his second order taking the view that it was not necessary to record evidence proceeded to determine the valuation of the suit or the market value of the property on the basis of the rent reserved and premium paid by defendants 1 and 2, to the mutualism of the walk or defendant-5 and found the market value of the property at Rupees seven lakhs.On this basis, the Learned Judge called upon the plaintiffs to pay the deficit Court fee with which they have complied-Whether this determination is in conformity with the previous order and legal, is the crucial question that calls for my examination.

31. In the second order, the basis for determining the market value, determination thereto and the consequent direction for payment of Court fee are set out by the Learned Judge in these words :

'XI. As pointed out by me above, when the suit schedule property was leased in the year 1973, a premium of Rs. 3,OO,OOO/- was taken. The rent reserved for the first five year was Rs. 1,500/- per month. The rent reserved for the next five year was Rs. 2,000/- per month. Thus the rent that was payable to the suit schedule property for the year 1980 when the suit was filed was Rs. 2,000/- per month. In other words, the yearly rent was Rs. 24,000/- Capitalising that yearly rent by fifteen years purchase value, one can safely determine the market value of the suit schedule property. However, I must also remember that premium of Rs. 3,00,000/- was paid at the time of the lease which was neither refundable nor adjustable towards further rents and that should be added to the market value thus determined, If calculations are made accordingly, the value will come to Rs. 6,60,000/-. However, the rent received at Rs. 2.000/- per month commenced from the year 1978. There must have been some appreciation for the two years since 1978 till the suit was filed in 1980. Taking into consideration such appreciation, in my opinion, one can safely determine the market value of the suit schedule property as on the date of suit at Rs.. 7,00,000/-. Therefore, in my opinion, the market value of the suit schedule property as on the date of the suit should be determined in accord nee with Section 24(b) read with Section 7(d) at Rs. 7,00,000/- and on that the plaintiffs should be called upon to value the reliefs sought as relief (a) and (b) in the plaint ....--'

What the Learned Judge has really done here is to determine the market value of the property on the basis of what is called as capitalisation method in awarding compensation in Land Acquisition cases. Sri Channabasappa in my opinion, rightly did not dispute this though he tried hard to salvage the situation by pressing all his forensic skill.

32. In the first order, the Learned Judge directed the determination of the market value on the basis of a willing purchaser and a willing buyer or what is called as comparable sales method in awarding compensation in Land Acquisition cases. When he decided that the comparable sales method should be adopted and the market value ascertained, the very facts as also the present basis were very much present and available. But, for reasons, with which we are not now concerned at this stage, the Learned Judge did not accept them and directed that the market value should be determined on the basis of comparable sales method only. However, in the second order, the Learned Judge has somersaulted and has really undone what had been done by him in his first order. When one reads the two orders and more so in juxta position, it is crystal clear that they are mutually contradictory and are opposed to one another and cannot be reconciled with all the sympathy one may attempt to do that.

33. Earlier, I have noticed that the first order made by the Learned Judge had been affirmed by this Court with which, the Hon'ble Supreme Court did not interfere. What clearly emerges from this is that the second order in so far as it determines the market value and the consequent direction for payment of Court fee is in clear contravention of the first order made on that question that had become final.

34. What were the reasons that impelled the Learned Judge to take this irreconcilable and incongruous view of the matter? As I am able to gather, the only reason that really,appalled the Learned Judge was his anxiety to end this fairly simple matter early and commence the trial of the suit that had not commenced for nearly two years then. But, alas that reason far from helping the plaintiffs, has only helped the contesting defendants in needlessly delaying thecommencement of the trial of the suit and has produced the very opposite result in the case. After all one's anxiety for a speedy disposal however desirable and laudable, cannot be a ground to commit an illegality. In the twin saying that 'justice delayed in justice denied' and 'justice hurried is justice buried', there is no antithesis at all and a judge will do well to avoid both and achieve a golden mean in the disposal of any case before him.

35. Which of the two mutually contradictory and irreconcilable orders is correct or not is not the question that arises for determination. Whether the first order that had become final between the parties can be set at naught, whatever be the hardship that it will cause to one of the parties or sympathy that one of the parties may justifiably plead, have no relevance in deciding such a question. When so examined, as that should be, it follows that the second order made by the Learned Judge on the question of market value and the consequent direction for payment of Court fee is directly opposed to the first order that had become final and the same suffers from an illegality in the exercise of the jurisdiction of the Court and the same therefore, calls for my interference under Section 115 of the CPC.

36. Sri Channabasappa is undoubtedly right that capitalisation method is one of the modes or accepted methods for determining the market value of the property, when the comparable sales method, which is considered to be the best method is not available. But, as pointed out by me earlier, the Learned Judge without adopting the sameexpressly directed that the mode for determining the market value should really be comparable sales method and not the capitalisation method. When that was so, it was not open to him to hold otherwise and make a short trip of the matter that had already become complex by his first order affirmed by this Court.

37. What has been really decided by the Learned Judge is the market value of the property on which question there was an earlier determination concluded by this Court against the plaintiffs, and in favour of defendant-2. But, as noticed by me earlier, the Learned Judge probably in his anxiety to conclude the matter and proceed with the trial and for no other reason had undone his own order which was clearly impermissible and illegal, and has thus exceeded hisjurisdiction or has committed an illegality in the exercise of his jurisdiction. In such a situation this Court is bound to interfere and set right the matter, however, inconvenient that decision will be to the plaintiffs. On any principle this is not one of those cases in which this Court can legitimately hold that it should decline to interfere with the order made by the Learned Judge. For all these reasons, I see no merit in this contention of Sri Channabasappa and I reject the same.

38. On the foregoing discussion, it follows that the second order in so far as it determines the market value and the consequent direction for payment of Court Fee suffers from illegality in the exercise of jurisdiction and, therefore, requires to be interfered with by this Court and the matter remitted to the Court below to faithfully comply with the first order. In this view, it is not very necessary for me to examine the other contentions and express my views on all of them. But, as my order in the Civil Revision Petitions is subject to an appeal by 'Special Leave before the Supreme Court and the order in Writ Petition No. 7556 of 1983 is even subject to an appeal before a Division Bench of this Court, both on questions of fact and law, I consider it proper to notice all other contentions urged before me in all other cases and briefly indicate my views on all of them.

39. Sri Ramaswamy has contended that on the deliberate failure of the plaintiffs to file a proper valuation slip in terms of the plaintiffs to file a proper valuation slip in terms of the first order and pay the deficit Court Fee thereon, the Learned Judge was bound to reject the plaint under Order 7 Rule 11 CPC which was peremptory in nature.

40. Sri Channabasappa has sought to support the order of the Learned Judge.

41. On a fairly detailed examination of this very contention urged before him, the Learned Judge taking the view that the failure of the plaintiffs to file a proper valuation slip was not mala fide, there were exceptional circumstance for not complying with his order, that in the interests of Justice it was not proper to reject the plaint and that it was necessary to grant time, has rejected the said contention. Every one of the reasons given by the Learned Judge for rejecting this contention are sound in law and justice. In any event this part of the order does not disclose an error of jurisdiction or an illegality in the exercise of jurisdiction occasioning grave failure of justice to defendant-2 to justify this Court's interference under Section 115 of the CPC.

42. Even otherwise, applying the well recognised tests to decide whether a provision is a mandatory or a directory, Order 7 Rule 11 CPC though couched in peremptorylanguage is not a peremptory provision and is only a directory provision. When so interpreted also, the order of the Learned Judge that has done substantial justice cannot be characterised as illegal.

43. But notwithstanding any infirmity in their valuation slip, the plaintiffs offered to place evidence of the valuationof the property and abide by the decision of the Court. When that was so, and otherwise also, it was the plain duty of the Court to record evidence and decide the question. Without doing that, the Trial Court, could not have rejected the plaint at all. In this view also, 1 cannot uphold this contention of Sri Ramaswamy.

44. As pointed out by Bowen, L.J. in Cropper -v.- Smith, (1884) 26 Ch D 700 'Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.' In B. Janardhana Bhat -v.- Lalitha, A.I.R. 1984 Karnataka 126 a Division Bench of this Court consisting of Sabhahit and Mahendra, J.J. applying this very principle to a different fact situation, has interpreted Order 7 Rule 11 CPC in the same manner. On the principle stated by Bowen, L.J., in Cropper's case reiterated by this Court in Janardhana Bhat's case, the claim of defendant-2 who is insisting of his pound of flesh, has no merit. For all these reasons, I reject this contention of Sri Ramaswamy.

45. C.R.P. No. 2995 of 1982 is filed by the State challemfiing the determination of Court Fee primarily on the ground that it should have been notified under Section 19 of the Act before such determination. On 30-3-83 the State has filed a memo praying for permission to withdraw this Revision Petition, which reads thus:

'The Government in their letter No. LAW 168 LMM 82 dated 26.1.1983 have instructed me to withdraw the above Revision Petition. The undersigned, therefore, prays that the above Revision Petition may be dismissed as withdrawn.'

A determination of Court Fee in a civil suit is also civil proceeding and, therefore, under Order 23 Rule 1 C.P.C, which applies to revision proceedings, the right of the State to withdraw this Revision Petition can hardly be doubted. On the principles enunciated by the Supreme Court in Hulas Rai Baij Nath -v.- Firm K. B. Bassand Company, : [1967]3SCR886 this Courtis bound to permit the withdrawal of this Revision petition and dismiss the same as withdrawn. But this innocuous memo is opposed by defendant-2 and Sri Shivaprakash. I, therefore, proceed to examine their case in their order.

46. Whatever be its case on the determination of market value, defendant-2 cannot be heard to say on the Court Fee payable by the plaintiffs, which aspect, I have earlier dealt at length. In this view and even otherwise, the objections urged by defendant-2 for permitting the withdrawal is wholly without any merit. I, therefore, overrule them.

47. Deferidant-2 has also made an application I.A. No. 1 on 12-4-83 in this case under Order 23 Rule IA read with Order 1 Rule 10 and Section 151 C.P.C. to transpose it as the petitioner and permit it to prosecute this Revision Peti-tion. In this application, defendant-2 has virtually reiterated the very facts and grounds urged in its objection statement opposing the memo filed for withdrawal, which I have earlier dealt.

48. Every one of the reasons given by me to reject the objections filed by defendant-2 equally apply to what is sought in I.A. No. I and on those very grounds thisapplication I.A. No. I is liable to be rejected.

49. On any principle defendant-2 cannot claim the rights and privileges of the State under the Act and contend that it should be permitted to prosecute the Revision Petition which it seeks to withdraw. Even otherwise, every one of the provisions invoked in I.A. No. I does not really enable this Court to permit this novel prayer and indulge in a needless exercise at all. Assuming that all or any of the provisions invoked in I.A. No.I do apply, then also there are no grounds on which I can allow I.A. No. I and permit defendant-2 to prosecute what the State is unwilling to do. For all these reasons, I reject I.A. No. I.

50. In Writ Petition No. 7556 of 1983 the Petitioner has sought for a Writ in the nature of mandatory to the Petitioner in C.R.P. No. 2995 of 1982 to prosecute that RevisionPetition before this Court, on the grounds that its decision to withdraw the Revision Petition, which had been rightly instituted, results in a huge loss of revenue legitimately due to the State and its decision to withdraw was arbitrary and capricious.

51. The Petitioner in C.R.P No. 2995 of 1982 which is Respondent-1, without filing a return, though it had more than one year for doing so, which was very necessary and desirable, particularly when the question has arisen almost for the first time before this Court, has opposed this Petition. But, that failure by the State to file its return hardly relieves the burden of this Court. The plaintiffs who areRespondents 2 to 4 in their detailed return, while justifying the decision of Government, have urged that the Petition itself was not maintainable. Defendant-5 the Board which has come on record at its own request as Respondent-5 has supported the plaintiffs. But, defendant-2 who has also come on record at its own request as Respondent-6, has supported the Petitioner.

52. While Sri Hegde urged that the Petitioner had no Sufficient interest and cannot maintain his Writ Petition, Sriyuths Chahhabasappa and Rao have urged that thePetitioner had no locus standi to challenge the decision of Government and maintain his Writ Petition under Article 226 of Constitution.

53. Sri Shantharaju, ably supported by Sri Ramaswamy has Urged that on the liberalised rule of standing in public interest litigation, this Petition was maintainable under Article 226 of the Constitution.

54. Admittedly the Petioner, who is a resident of the State and an Advocate of this Court does not claim that hehas suffered any personal injury by the decision of Government to withdraw the Revision Petition and memo filed thereto before this Court. But, he contends that he has locus standi to challenge the same on the liberalised rule of standing evolved by our Supreme Court in 'public interest litigation' cases or 'social interest litigation' that is said to be more apt term to that term according to Upendra Baxi, a noted jurist of our country.

55. In S.P. Gupta and Ors. -v.- President of India and Ors., : [1982]2SCR365 popularly called as 'Judges case', a Constitution Bench of seven Learned Judges, considering the standing of advocates to challenge a circular letter of the then Law Minister in the matter of appointment of Judges, theirtransfers, as also the action of the President in the appointment of additional Judges and the transfers of Chief Justices, on an exhaustive review of all its earlier rulings, the rulings of the English and American Courts, has ruled that Advocates had sufficient interest to maintain their Writ Petitions before High Courts as also before that Court. On the veryprinciples enunciated by the Supreme Court in the Judges' case and the reasons given by Bhagwati, J. with whom other five Learned Judges expressed their complete concurrence so far as standing or locus standi, the Petitioner, an advocate of this Court has sufficient interest and has locus standi or standing to maintain this Petition under Article 226 of the Constitution. Every one of the submissions made by Sriyuths Hegde and Channabasappa to the contrary, for the very reasons stated in the Judges' case and the ruling of the House of Lords in Inland Revenue Commissioners -v.- National federation of Self Employed and Small Businesses Limited, (1981) 2 ALL ER 93referred to with approval in the former by our Supreme Court, has no merit. If, therefore, over-rule this Preliminaryobjection urged by Sriyuths Hegde and Channabasappa and proceed to examine the merits.

56. The power to decide to commence a cause or file a new case in a Court, whatever be its nature, is in truth and substance taken by Government in exercise of its executive powers only available to it under the Constitution. The power to file a case comprehends in itself the power to with-draw that case before the concerned Court. In this view, the decision taken by Government was within its power and this position was not rightly disputed by any of the Learned Counsel.

57. A decision taken by Government in exercise of its executive powers though not immune-from challenge under Article 226 of the Constitution, cannot be equated to a decision taken by Government when it exercises judicial or quasi-judicial powers necessitating it to give reasons in support of its decision and such a decision cannot be examined by this Court as if it is an appeal and a different conclusion reached is now well settled.

58. Almost every day, the Union Government and State Governments whose activities touch almost every citizen are compelled to file in numberable cases before Courts and authorities. Whether one likes it or not, the State is the biggest litigant before Courts these days. If Government on a further reflection or as a matter of policy also decides to withdraw a case or a batch of cases, can it be said that it is accountable and must explain its action to every citizen, lawyer and this Court. The answer to this must be an emphatic, 'No'. Any other view will make the working of Government impossible and convert this Court into a third chamber or even a star chamber, which role the Constitution has not conferred on this Court. When the Petitioner does not rightly attack the decision as vitiated by mala fides, this Court should be even loath to examine the records of Government and should not concern itself either with its aptness or policy. On this short ground alone, this Court should reject the claim of the Petitioner.

59. Sri Shantharaj placing strong reliance on the decision of the Supreme Court in State of Andhra Pradesh -v.-P. Anjaneyalu, SLP Crl. No. 476 of 1981 urged that Government was bound to give reasons for withdrawal of the Revision Petition before this Court and the absence of the same vitiates its decision.

60. Anjaneyaiu's case dealt by the Supreme Court under Article 136 of the Constitution was a criminal case against an acquittal ordered by the High Court. The principles that apply to withdrawal of criminal cases do not apply to withdrawal of civil cases on which ground itself theprinciples stated therein are distinguishable. Even otherwise, what applies to a proceeding under Article 136 of the Constitution, that has conferred very wide and exclusive powers on the Supreme Court, is not applicable to a proceeding under Article 226 of the Constitution. Lastly that was a case in which the Court with very wide powers specially directed Government of Andhra Pradesh to furnish reasons forwithdrawal of the Special Leave Petition before it, which it failed to comply. But, that is not the position in the present case. Hence, the ratio, if any in Anjaneyaiu's case does not bear on the point.

61. In what cases of withdrawal this Court can and should interfere, if so at what stage and how such interference should be modulated cannot be catalogued and statedexhaustively. Assuming that there is a case for interference, in such a case also, the interference can only be on grounds that are now well settled and 'to decide only the lawfulness of what they do' to borrow the inimitable language of Lord Diplok in the celebrated Federation of Self-Employee's case or Fleet Street for casual employees' case. Even then also,this Court should be very circumspect in interfering with the power exercised by Government and this Court cannot take up the role of a stern class teacher of a primary or a nursery school. But, this much can be stated with certainty. Even before a person, that too when he happens to be a legal practitioner, like the Petitioner, approaches this Court, it is necessary for him to approach Government itself in the first instance, demand or request Government to apprise him the reasons for its withdrawal, which I have no doubtGovernment will not fail to comply. On examining those reasons, if such person is satisfied with them, he will do well in not approaching this Court at all. But, if he is dissatisfied with those reasons and a real public cause will be served, then and then only, he should approach this Court, naturallyannexing the communication received by him from Government, which will also satisfy the strict requirements of seeking for a mandamus before this Court. In this very case, thePetitioner, an Advocate of this Court has regretfully rushed to this Court without approaching Government to furnish its reasons for withdrawal of the case.

62. But, notwithstanding the above, as this is probably the first case of this kind, I propose to examine the actual decision of Government from the records, very rightly made available by Sri Hegde, the material portions which I have permitted all the Learned Counsels to peruse at the hearing and make their respective submissions also.

63. On a letter written by the then Advocate General, Government took a decision to file a Revision Petition against the second order of the Learned Judge andaccordingly filed the same before this Court on 3J-8-82. On a written representation made by a committee called 'Against Ali Asker Wakf Action Committee' (hereinafter referred to as the committee) to the Ministers of Law, Panchayat Raj and Labour, Wakfs and a minute sent by the last of them, theMinister for Law disagreeing with the contrary opinion of the Law Secretary minuted as hereunder on 22-3-1983 :

'C.R.P. may be withdrawn''

In pursuance of this decision of the Minister for Law a communication was addressed to the Advocate General who in terms of the same has filed a memo for withdrawal. Even though the Minister has given reasons for withdrawal, it is apparent that he has accepted the representation made by the Committee before Government. In taking his decision, which was within his competence, I do not find anyarbitrariness or capriciousness, to justify this Court's interference under Article 226 of the Constitution to compel Government to prosecute its Revision Petition. Even otherwise also, if that were to be attempted by me, it would be making an unwilling horse to drink water, which this Court should not even attempt to do at all.

64. In the view I have taken on the objections of defendant-2, I.A. No. I filed by it and Writ Petition No. 7556 of 1983, the question of my examining the grievance of the State in C-R.P. No. 2995 of 1982 does not arise. But, still it is enough to point out that its contention that before deciding the Court Fee payable by the plaintiffs, it was bound to be notified as of right, does not flow from the permissive language employed in Section 19 of the Act.

65. In the light of my above discussion, I make the following orders and directions ;

(a) I dismiss Writ Petition No. 7556 of 1983 and discharge the rule issued in tie case.

(b) I grant permission to the memo filed in C.R.P. No. 2995 of 1982 and dismiss the same as withdrawn by the Petitioner.

(c) I allow C.R.P. No. 2221 of 1982 and set aside the order dated 8-7-82 of the XII Additional City Civil Judge.

(d) I direct the plaintiffs in O.S. No. 8041 of 1980. who are Respondents 1 to 3 in C.R.P. No. 2221 of 1982 to file their revised valuation slip in so far as it relates to Sl. No. 1 of theirvaluation slip dated 15-9 1980 that is in dispute on or before 22-9-84 before the II Additional City Civil Judge, Bangalore before whom that case is now pending, which valuation shall not be less than the original valuation of that item.

(e) I direct the II Additional City Civil Judge, Bangalore to re-determine the market value of the property and the consequent Court fee payable thereon in conformity with the order dated. 11-12-1981 made by the then XII Additional City Civil Judge on that very question with all such expedition as is possible in the circumstances of the case.

(f) I direct the parties in C.R.P No. 2221 of 1982 to appear before the II Additional City Civil Judge, Bangalore on 22-9-84 to which date O. S. No. 8041 of 1980 now stands posted before him and take further orders from that Court for the further progress of the suit.

66. Civil Revision Petitions and the Writ Petition are disposed of in the above terms. But, in the circumstances of the cases, I direct the parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //