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Ram Krishna Barman Vs. Mohan Lal Sahgal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFAFO. No. 268 of 1957
Judge
Reported inAIR1965All10
ActsCourt-fees Act, 1870 - Sections 7 - Schedule - Article 17
AppellantRam Krishna Barman
RespondentMohan Lal Sahgal and ors.
Appellant AdvocateG.P. Bhargava, Adv.
Respondent AdvocateShanti Bhushan, ;S.K. Agarwal and ;K.D. Pandey, Advs.
DispositionAppeal allowed
Excerpt:
.....the relief involving cancellation of the decree passed in the prior suit - held, in case of decree for declaration provisions of section are not applicable and the plaintiff is not required to pay court fee on valuation of property. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of..........of the compromise the further allegation in the plaint is that radhey lal, instead of getting the suit decreed in terms of the compromise, took advantage of plaintiff's illness and obtained an ex parte decree in his favour whereby the suit of radhey lal was decreed in its entirety. on the further assertion that the aforesaid ex parte decree, dated 5th may, 1955, had been obtained by radhey lal as a result of fraud, and that that decree was invalid and ineffective as against the plaintiff, the relief claimed was a declaration that the plaintiff was owner of certain properties mentoned at the foot of the plaint, to the extent of a 5/16th share in the alternative it was also prayed that, if the plaintiff was not found to be entitled to the aforesaid relief, it be declared that the.....
Judgment:

B.D. Gupta, J.

1. This is a plaintiff's appeal, under Section 6-A of the Court Fees Act, against an order directing him to pay additional Court feet on the plaint giving rise to Suit No 14 of 1956 in the Court of Civil Judge, Jaunpur.

2. It appears that one Babu Durga Prasad who owns considerable property, died leaving a widow who also died heirless whereafter the properties of Durga Prasad were taken over by the Collector, Jaunpur, as Administrator under the Bengal Regulation Act, by an order dated 6th February, 1950 Suit No. 4 of 1950 was thereafter instituted by one Radhey Lal for a declaration that Radhey Lal was the owner in possession of the properties, given at the foot of the plaint, which consisted of properties which belonged to Rai Bahadur Durga Prasad, as also some properties alleged to have constituted the Stri Dhan properties of his widow Rani Dhan Dei Kunwar Some other properties were also included on the assertion that they had been acquired by Rani Dhan Dei Kunwar from the income of the properties belonging to Rai Bahadur Durga Prasad. This suit to which the present plaintiff-appellant, was a party was decreed, ex parte, by a judgment of the learned Civil Judge D/- 5-5-1955. Thereafter, on the 7th July, 1956, Suit No. 14 of 1956 was filed by the plaintiff. appellant in which those arrayed as defendants included the heirs of Radhey Lal who had meanwhile died.

It is not necessary to set forward in detail the various allegations set forth in the plaint Suffice it to say that the case set forward by the plaintiff-appellant was that, during the period of her possession as the widow of Rai Bahadur Durga Prasad, Rani Dhan Dei Kunwar was pleased with the services of the plaintiff and appointed the plaintiff her heir in respect of her Stri Dhan properties, that after the death of Rani Dhan Dei Kunwar on the 22nd November. 1959. the District Magistrate, Jaunpur. took over possession, that Radhey Lal had filed some claim before the Collector and also filed Suit No. 4 of 1950 in the court of the Civil Judge. Jaunpur wherein he had prayed for a declaration in respect of part of the properties mentioned at the foot of the plaint wherein the present plaintiff appellant had put in his defence, that during the pendency of this suit a compromise had been arrived at between the present plaintiff-appellant and Radhey Lal, and even a memorandum of the terms of that compromise was drawn up in writing, and Radhey Lal promised to have suit No. 4 of 1950 decided in terms of the compromise The further allegation in the plaint is that Radhey Lal, instead of getting the suit decreed in terms of the compromise, took advantage of plaintiff's illness and obtained an ex parte decree in his favour whereby the suit of Radhey Lal was decreed in its entirety. On the further assertion that the aforesaid ex parte decree, dated 5th May, 1955, had been obtained by Radhey Lal as a result of fraud, and that that decree was invalid and ineffective as against the plaintiff, the relief claimed was a declaration that the plaintiff was owner of certain properties mentoned at the foot of the plaint, to the extent of a 5/16th share In the alternative it was also prayed that, if the plaintiff was not found to be entitled to the aforesaid relief, it be declared that the plaintiff was the owner of certain properties detailed at the foot of the plaint, which constituted Stri Dhan properties of the widow of Rai Bahadur Durga Prasad. and that the decree in suit No. 4 of 1950 did not. in any manner, affect the rights of the plaintiff. The valuation of the suit for purposes of jurisdiction was stated to be Rs. 5,99,503/ 6/3. but a Court-fee of Rs 18/12/-. as for declaration only, was paid.

3. The Munsarim of the Court does not appear to have raised any objection that the Court-fee paid was insufficient, but the Inspector of Stamps reported that the Court-fee paid was insufficient because, in his opinion the relief claimed in the suit involved cancellation of or adjudging void or voidable a decree For money or other property having market value. The opinion expressed by the Inspector of Stamps was that the suit was clearly covered by Section 7 sub-section (iv-A) of the Court Fees Act as amended by the U. P. Legislature The report also stated that as the plaintiff-appellant was a party to the decree in suit No. 4 of 1950. court-fee was chargeable according to the value of the subject-matter. It was further stated in the report that the value of -/5/-share in this suit came to above Rs 1,87318/ on which a court-fee of Rs 3528/8/ was chargeable and that the aforesaid amount should be realised. Objections to this report were filed by the plaintiff and by the order of the learned Civil Judge dated 6th August 1957 the plaintiff was ordered to amend the plaint and pay the deficiency in court-fee within one month from the date of the order 'according to the above order'. It is obvious that by the expression 'above order' the learned Judge means the earlier part of that very order. The earlier part of the order contained the following observations.

'The suit is tor a declaration about the title of the plaintiff with respect to certain property and for cancellation of a decree valuing (valued) at more than Rs. 29 lakhs. The plaintiff must pay the Court fee on the valuation of the subject matter of the decree which is being fought to be cancelled.'

4. The impression created on us on reading the order under appeal is that, even though the Inspector of Stamps had reported demand of court-fee in a sum of Rs. 3528/8/- on the value of -/5/- annas share which, according to the Inspector of Stamps, come to Rs. 1,87318/- only, the learned Civil Judge directed the plaintiff to amend the plaint and pay Court fee on the basis that the decree, cancellation whereof was alleged to have been involved, was in respect of property valued at more than Rs. 29 lakhs. The order, however, is vague and does not make it clear that the learned Civil Judge intended that the plaintiff should pay Court-fee on -/5/- annas share on the basis that the value of the entire property was Rs. 29,00000/-. The amount which the plaintiff was required to pay within a month from that order has not been specified in that order. In these circumstances we were inclined, at one stage, to set aside the order of the learned Civil Judge, and remand the case back to the Court below for a reconsideration of the matter and passing of a clear order, keeping in view the report of the Inspector of Stamps. Learned counsel for the parties, however, suggested that, though the order of the learned Civil Judge was unfortunately vague, the real controversy turned round the question whether the suit of the plaintiff was covered by Section 7(iv-A) of the Court Fees Act, and that our decision on this controversy may be given in order to avoid unnecessary delay in the progress of the suit. We have, accordingly, heard learned counsel for the parties on the question whether the Court-fee on this plaint is chargeable under Section 7(iv-A) of the Court Fees Act.

5. Section 7(iv-A) runs as follows:-

'In suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market-value, or an instrument securing money or other property having such value.

(1) Whether the plaintiff or his predecessor-in-title was a party to the decree or the instrument--according to the value of the subject-matter, and

(2) Where he or his predecessor-in-title was not a party to the decree or instrument--according to one-fifth of the value of the subject-matter, and such value shall be deemed to be-

if the whole decree or instrument is involved in the suit, the amount for which of value of the property in respect of which the decree was passed or the instrument executed and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates.'

There is no controversy before us that the relief claimed in the gult does involve cancellation of or adjudging void or voidable the decree in suit No. 4 of 1950 passed by the learned Civil Judge on 5th May, 1955. That suit, as observed earlier, ended in a decree whereby Radhey Lal was merely declared to be the owner in possession of certain properties. What is required, before Clause (iv-A.) can be applied, is that the suit must involve cancellation etc., of a decree 'for money or other property'. The contention of the learned counsel for the appellant has been that a decree of declaration simpliciter cannot be described as a decree 'for money or other property' even though the declaration might be in respect of money or other property. Learned counsel for the appellant has urged that the expression 'for money or other property' must be construed as involving a decree for recovery of money, or a decree for recovery of other property having a market-value. We find considerable force in this contention.

6. A perusal of the various provisions contained in Section 7 of the Court Fees Act, and certain decisions bearing on those provisions, have led us to the irresistible conclusion that the meaning to he attributed to the expression 'decree for money or other property' cannot be extended so far as to Include decrees whereby rights have merely been declared Learned counsel have stated that they have been unable to find any decision dealing directly with the language used in Clause (iv-A). In these circumstances we asked learned counsel to place before us decisions from which we could draw assistance in interpreting the expression 'decree for money or other property' used in Clause (iv-A). The learned Senior Standing Counsel stated that he had been unable to find any decision in respect of the other clauses contained in Section 7 which might support the contention urged by him.

7. In Section 7:

Clause (i) deals with 'suits tor money......'

Clause (ii) (a) deals with 'suits for maintenance and annuities

Clause (iii) deals with 'suits tor movable property other than money .....'

The above clauses (i), (ii) (a) and (iii) deal with suits involving claims of certain types, whereas Clause (iv-A) deals with decrees of certain types. We see no reason to give a different meaning to the expression 'for' occurring in Clause (iv-A), from the meaning which should be given to the same expression 'for' in Clauses (i), (ii) (a) and (iii) occurring in Section 7 of the Act If the expression 'suits for money' should be construed as confined to suits for recovery of money, we see no reason why the expression 'decree for money' in Clause (iv-A) should not be construed as referring only to decrees for recovery of money Similarly, if a proper construction of the expression 'suits for maintenance' would be to confine it to suits for recovery of maintenance, and 'suits for movable property' should be construed as confined to suits for recovery of movable property, we see no reason to give a different meaning to the expression 'decree for money or other property' used in Section 7(iv-A) In our opinion the Court Fees Act makes specific provision elsewhere for suits seeking a mere declaration of title, whether it relates to money, or movable or other property.

8. The expressions used in the earlier clauses of Section 7 have come up for interpretation in certain cases. In a decision by a Division Bench of the Lahore High Court in the case of Narindar Singh v. Kuldip Singh, reported in AIR 1940 Lah 26 it was held that a suit to obtain a declaration that the plaintiff is the sole and exclusive owner of certain Government Promissory Notes could not be described to be a suit for recovery of money falling within Section 7(i) of the Court Fees Act. The learned Judges observed that it was a suit merely for a declaration. In the case of In re Chief Inspector of Stamps, U. P.; Lal Dhananjay Singh v. Lal Bhim Bikram Singh, reported in : AIR1953All442 , it was held that Section 7(ii) has no application to a suit for a bare declaration of the plaintiffi right to receive arrears of pension or periodlcal payment. In future to which the Pensions Act applies. The view taken was that such a suit was governed by Article 17 (iii) of Schedule II to the Court Fees Act. This decision was followed in the case of Chief Inspector of Stamps, U. P. Allahabad v. Rao Bajrang Bahadur Singh, reported in AIR 1955 NUC (All) 3578 and it was held that Section 7(11)(a) of the Court Fees Act had been enacted to cover those cases in which the plaintiff claimed a relief which, if decreed, could be executed by the Court passing the decree. It was laid down that where the plaintiff sought no other relief except a bare declaration of rights to a certain amount of maintenance per year under a certain deed, the relief will be only a declaratory relief, and the plaintiff cannot possibly ask the Court to execute the decree, and that being so the suit fell within the ambit of Article 17 (iii) of Schedule II, and not Section 7(ii)(a) of the Court Fees Act.

The learned Senior Standing Counsel conceded that he was unable to point out any single case decided by any High Court wherein it may have been held in respect of any of the earlier clauses of Section 7 of the Court Fees Act that the suits contemplated by those clauses covered suits for mere declaration of right. The position of the authorities bearing on the provisions contained in the earlier clauses, therefore, lends great assistance to the contention of the learned counsel for the appellant that the expression 'decree for money or other property' in Clause (iv-A) cannot be so construed at to include decrees for a bare declaration.

9. We have also taken into consideration the fact that an appeal from the decree which was passed in suit No. 4 of 1950 would have been maintainable merely on payment of Court-fees as in a declaratory suit. We see no reason why, if the plaintiff files a regular suit subsequently for a declaration that such a decree was obtained by fraud and was, therefore, ineffective, the plaintiff should be required to pay a higher Court-fee than what had been paid by Radhey Lal for obtaining that decree. There seems, therefore, to be no equitable ground in support of the contention that the plaintiff should be required to pay Court-fee on the valuation of the property involved. It should, however, be clearly understood that our decision does not rest on considerations of equity, but on interpretation of the language of the statute in the light of the settled principle that the Court Fees Act is a fiscal measure and Has to be construed strictly in favour of the subject.

10. The learned Senior Standing Counsel urged that, even if the case is not covered by Clause (iv-A), it should be held to be covered by Clause (iv-A) which relates to suits to obtain a declaratory decree or order where consequential relief is prayed. No claim for any additional Court Fees was made on anybody's behalf on the basis of the aforesaid clause, and we do not consider it proper to go into the merits of the contention of the learned Senior Standing Counsel that Clause (iv-A) is applicable. The only question before us is whether Clause (iv-A), which was the basis of the report of the Inspector of Stamps, as also of the order passed by the learned Civil Judge is applicable to the present case For the reasons already given we are of the opinion that Section 7(iv-A) is not applicable. The result is that the order of the Court below, in so far as the plaintiff has been thereby directed to pay additional Court-fee, must be set aside.

11. We accordingly allow the appeal; set asidethe order of the learned Civil Judge dated 6tbAugust, 1957, in so far as the plaintiff has beenthereby directed to pay additional Court Fee. Theplaintiff-appellant will be entitled to his costs ofthis appeal. We would like to observe that nobody, except the learned Senior Standing Counsel,appeared for the respondent at the hearing of thisappeal.


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