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Radha Krishna Vs. Ram NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All369
AppellantRadha Krishna
RespondentRam NaraIn and ors.
Excerpt:
.....as a decree for the cancellation of an instrument might well be held to be more than a simple declaratory decree and a suit under section 39 is not a suit under ch. we should be bound by the ruling, if it were directly applicable to the facts of this case, but in our opinion it can clearly be distinguished. the safest course in these oases is to ascertain what the plaintiff actually asks for by his plaint, and not to speculate upon what may be the ulterior effect of his success. 797 follows the above ruling and also clearly supports the plaintiff's -contention. although he tikes a risk in so insisting, in that he is liable to have his suit dismissed under section 42, specific relief act if the court ultimately comes to the conclusion that it was open to him to ask for a..........to the facts of this case, but in our opinion it can clearly be distinguished. in the present suit a declaration of the invalidity of the petition of compromise can hardly be regarded as a separate relief, because the compromise is embodied in the decree. we consider therefore that the suit should be treated, for the purpose of the court-fee, as a suit for a declaration that the decree is not binding upon the plaintiff. a decree is not an 'instrument' within the meaning of section 39 and the suit cannot be held to be a suit under section 39. the ruling therefore only helps the plaintiff indirectly in so far as the cancellation of an instrument can be considered analogous to a declaration that a decree is not binding upon the plaintiff. no decision of this court has been cited which.....
Judgment:

King, J.

1. The suit which gives rise to this appeal was instituted for setting aside a compromise and a decree for money passed on the basis of the compromise.

2. The plaintiff is a minor. Defendants 2 to 4 are his brothers. After their father's death defendant 2, Gauri Shankar,' executed promissory notes for Rupees 75,000 in favour of Ram Narain, defendant 1. Mt. Janki Kuar (defendant 5) and her three sons Manni Lal (defendant 3), Kanhai Lal (defendant 4) and Radha Krishna (plaintiff) sued Gauri Shankar (defendant 2) for partition of the joint family property. While the suit was pending Ram Narain (defendant 1) brought a suit, No. 53 of 1928, against Gauri Shankar and his three brothers on the basis of the promissory notes. Both the suits were decided according to a compromise filed on 8th August 1928. Ram Narain's suit was decreed in full against Mt. Janki Kuar and her three sons. Gauri Shankar surrendered his share in the family property in return for being absolved from liability in respect of Ram Narain's claim.

3. The plaintiff instituted the present suit for cancellation of the compromise and the decree passed upon its basis, alleging that he was a minor and his interests were not protected by any validly appointed guardian ad litem, and that he is not bound by the compromise and the decree which were obtained by fraud. He paid a court-fee of Rs. 10 only, as for a simple declaratory suit, although the suit was valued at Rs. 70,350 for the purpose of jurisdiction. Objection was made that the court-fee should be paid ad valorem on Rs. 70,350. The plaintiff then applied to amend his plaint so that the prayer for relief should read as follows:

It may be declared that the petition of compromise dated 8th August 1928 and the decree passed upon its basis in Suit No. 53 of 1928 are ineffectual and null and void as against the plaintiff, and that the plaintiff is not bound thereby.

4. The Court passed an order on 5th September 1929 that the plaint be amended accordingly. We have therefore to consider the court-fee payable on the plaint in its amended form.

5. The trial Court held that the suit was in substance a suit to set aside the compromise and decree and that the plaint-tiff must pay an ad valorem Court-fee on the money value of the decree which he sought to set aside. As the plaintiff failed to make good the deficiency of court-fee the trial Court rejected the plaint under Order 7, Rule 11 (c), Civil P.C. Hence this appeal.

6. The question for decision is whether the suit should be held to be a suit 'to obtain a declaratory decree where no consequeutial relief is prayed' within the meaning of Schedule 2, Article 17 (iii); or a suit

to obtain a declaratory decree or order where consequential relief is prayed

within the meaning of Section 7 (iv) (c). No either provision of the Court-fees Act has been suggested as applicable to this suit.

7. Prima facie the suit is to obtain a mere declaratory decree. No consequential relief, such as an injunction restraining Ram Narain from executing his decree against the plaintiff, is prayed for. The question seems to be whether the plaintiff should be deemed to have prayed for consequential relief although he has not expressly done so.

8. The rulings on this point are unfortunately conflicting. Each side can support his contention with judicial authority-

9. The following rulings are cited by the plaintiff appellant-

Karam Khan v. Daryai Singh [1883] 5 All. 331. This is a Full Bench decision. The suit was for cancellation of a mortgage deed. The order of reference suggested that the suit was of the kind mentioned in Section 39, Specific Relief Act, and was in the nature of a simple declaratory suit. Five learned Judges concurred in that view, without giving any reasons. This omission is unfortunate as a decree for the cancellation of an instrument might well be held to be more than a simple declaratory decree and a suit under Section 39 is not a suit under Ch. 6 which deals with declaratory decrees. We should be bound by the ruling, if it were directly applicable to the facts of this case, but in our opinion it can clearly be distinguished. In the present suit a declaration of the invalidity of the petition of compromise can hardly be regarded as a separate relief, because the compromise is embodied in the decree. We consider therefore that the suit should be treated, for the purpose of the court-fee, as a suit for a declaration that the decree is not binding upon the plaintiff. A decree is not an 'instrument' within the meaning of Section 39 and the suit cannot be held to be a suit under Section 39. The ruling therefore only helps the plaintiff indirectly in so far as the cancellation of an instrument can be considered analogous to a declaration that a decree is not binding upon the plaintiff. No decision of this Court has been cited which is directly in point.

Shrimant Sayajirao v. Smith [18961 20 Bom. 736 is a clear authority in the plaintiff's favour. It was held that a suit in which the only prayer is for a declaration that 'a decree was null and void is a suit for a declaratory decree without consequential relief and Article 17 (iii) is applicable. This case is on all fours with the case before us.

10. This ruling was followed by the Calcutta High Court in Zinnatunnessa Khatun v. Girindra Nath Mukherjee [1903] 30 Cal. 788 which is also directly in point. Maclean, C. J.. remarked:

The safest course in these oases is to ascertain what the plaintiff actually asks for by his plaint, and not to speculate upon what may be the ulterior effect of his success.

11. Bagala Sundari Debi v. Prosanna Nath Mukerjee [1916] 35 I.C. 797 follows the above ruling and also clearly supports the plaintiff's -contention. It may be noted that in that case the prayer was not merely for a declaration that a certain decree passed against the plaintiff was not binding upon him, but also for setting aside the decree. In that respect it goes beyond the present case where the prayer is for a declaration only and not for 'setting aside' the decree as against the plaintiff.

12. A similar view was taken in Gokul Nath Jiu v. The New Birbhum Goal Co : AIR1924Cal183 . The Court observed that it was not within the province of the Taxing Officer;

to see whither the suit is properly framed, whether the plaintiff is entitled to the declaration asked for or what would be the effect if the plaintiff succeeds in obtaining a declaration as prayed for.

13. Tikait Thakur Narayan Singh v. Dildar Ali Khan A.I.R. 1925 Pat. 210 (at p. 928 of 3 Pat.) also supports the plaintiff's contention, The plaintiff had prayed for a mere declaration of title. An objection was raised that he should have paid a court-fee as in a suit for declaration of title and for possession. The Court observed:

The question of court-fee must be decided on the plaint, and, though it is open to the Court to say that the plaintiff has really asked for a consequential relief though he has tried to conceal it by casting the reliefs in a particular form, it is not open to the Court to say that the [plaintiff should have asked for a consequential relief, and should have paid the proper fee as in such a suit. Here the plaintiff insists that jit is not necessary for him to ask for a consequential relief. Although he tikes a risk in so insisting, in that he is liable to have his suit dismissed under Section 42, Specific Relief Act if the Court ultimately comes to the conclusion that it was open to him to ask for a consequential relief, he is clearly entitled to have the case made by him in the plaint tried by the Courts

14. We concur in this view.

15. Now we have to consider the authorities cited by the defendant-respondent.

16. The weightiest authority is a Full Bench decision of the Madras High Court in Arunachalam Chetty v. Rangaswamy Pillai [1915] 33 Mad. 922. The suit was for a declaration that a mortgage-decree was not binding on the plaintiff and for an injunction restraining the defendant from executing the same. It was held that the suit was for a declaratory decree with consequential relief within the meaning of Section 7. Clause (iv) (c), Court-fees Act. Upon the facts of that case the correctness of the decision cannot be doubted, as there was a prayer for an injunction which is clearly a prayer for a consequential relief. The present case is distinguishable upon the facts, as there is no prayer for an injunction or for any other form of consequential relief. The terms of the reference to the Full Bench however raised a question which was unnecessary for the decision of the case namely

whether a suit for a declaration that an instrument of mortgage or sale executed by the plaintiff or a decree that has been passed against the plaintiff for a debt is not binding on him is a declaratory suit only.

17. Their Lordships after reviewing the authorities held that a suit of the nature indicated in the reference, which merely asks for a declaration, is none the less a suit for declaretary decree with consequential relief within the meaning of Clause (iv) (c). Although this opinion is entitled to great weight it must be regarded as an obiter dictum. From the point of view of the fiscal authorities this decision seems unimportant, as their Lordships also held that the plaintiff was entitled to put his own valuation on the relief claimed, and such valuation was conclusive.

18. Parvatibai v. Vishvanath Ganesh [1905] 29 Bom 207 was a suit for a declaration that a sale-deed was fraudulent and for an order to have it cancelled and a copy sent to the Sub-Registrar. It was held that the suit was one in which there was a distinct prayer for consequential relief. The Allahabad Full Bench ruling in Karam Khan v. Daryai Singh was expressly dissented from. This decision is distinguishable as in the present suit there is no distinct prayer for consequential relief and it is not a suit for the cancellation of an instrument under Section 39, Specific Belief Act.

19. Deokali Koer v. Kedar Nath [1912] 39 Cal. 704 was a suit for a declaration that a mortgage deed was fraudulent and that a decree passed upon its basis had been fraudulently obtained and that the mortgaged property could not be sold for the satisfaction of the decree, It was held that the suit was not of the nature contemplated by Section 42, Specific Relief Act, and therefore was not a suit for a declaratory decree where no consequential relief is prayed. This view was confirmed by the fact that the plaintiff obtained an interim injunction restraining the defendant from executing the decree.

20. We consider that the question of court fee must be decided on the plaint and the decision is not affected by the question whether the suit is maintainable under Section 42 or by any action subsequently taken by the plaintiff to obtain an injunction otherwise than by amendment of the plaint.

21. Hakim Rai v. Ishar Das [1912] 39 Cal. 704, is directly in point. The plaintiffs sued for a declaration that a decree obtained against them was based on fraud and was not enforceable. It was held that the substance and not the language of the plaint is to be looked at and that the suit must be deemed to be a declaratory suit in which consequential relief is prayed. We doubt whether this is a correct method of interpreting a fiscal statute.

22. The ruling in Mt. Noowooagar Ojain v. Shidhar Jha [1918] 3 Pat. L.J. 194, is distinguishable as it was a suit under Section 39 for the avoidance of a registered deed of gift. The forwarding of a copy of the decree to the registration office was held to amount to consequential relief.

23. The foregoing review of relevant decisions shows a conflict of judicial opinion without any clear preponderance on one side or the other. We hold that the Court-fee must be decided on the plaint. The plaintiff asks for a mere declaration. He studiously avoids asking for any consequential relief. The suit as framed therefore is clearly 'to obtain a declaratory decree where no consequential relief is prayed.' We are not concerned at the present stage with the question whether the suit is of the nature contemplated by Section 42 or whether the Court will refuse to grant a mere declaration on the ground that the plaintiff has omitted to ask for further relief such as an injunction restraining the decree-holder from executing the decree, or whether the plaintiff has applied for stay of execution; or whether a mere declaration, if granted will serve any useful purpose. Fiscal statutes must be strictly construed If the plaintiff chooses to take the risk of asking for a mere declaration without consequential relief he is, in our opinion at liberty to do so under Article 17, (iii) upon payment of a fixed court-fee of Rs. 10. When he has carefully refrained from asking for consequential relief we do not consider that he should never-theless be deemed to have asked for consequential relief. This would be doing violence to the language of Section 7, (iv) (c). We hold that the plaint, as amended, is sufficiently stamped.

24. We therefore allow the appeal, set aside the decree of the trial Court and direct that Court to dispose of the suit according to law

25. The appellant will have his costs of this appeal. Costs in the Court below will abide the result.


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