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Chief Inspector of Stamps, U.P., Allahabad Vs. N.A. Gazder and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 194 of 1958
Judge
Reported inAIR1963All89
ActsCourt-fees Act, 1870 - Sections 7; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantChief Inspector of Stamps, U.P., Allahabad
RespondentN.A. Gazder and ors.
Appellant AdvocateStanding Counsel
Respondent AdvocateGopi Nath Kunjru and ;R.C. Ghatak, Advs.
DispositionRevision dismissed
Excerpt:
civil - court fee - section 7 (iv)(a), (iv-b)(b) of the court fee act, 1870 - whether court fee paid is sufficient - suit by some parsi community people for injunction restraining other members from entering temple and perform rights - relief for injunction can be claimed as a substantive relief for injunction and not as a consequential relief with some express or implied declaration - it was a suit to obtain mere relief for injunction - court fee paid is sufficient. - - 1 attached to section 7(iv-b)(b) and we must be satisfied with the valuation which the plaintiff gives in his plaint......relief either of possession or of injunction; but there are certain other cases in which the relief claimed, whether for possession or for injunction, may be a substantive relief without any implied relief for declaration. the real test in such cases has been considered in the authority of sri krishna chandraji v. shyam behari lal, air 1955 all 177. but the major test in all such cases is that the relief claimed must be such as could not be claimed independently of a declaration.in the present case this test would not apply because according to the allegations made in the plaint the plaintiffs alleged that the temple is a temple of the farsi community in which every parsi has a right to worship. the relief for injunction has been claimed because of the certain alleged acts on the.....
Judgment:
ORDER

Mithan Lal, J.

1. This civil revision filed by the Chief Inspector of Stamps arises out of the following circumstances.

2. Some of the Parsis of Allahabad have brought a suit for injunction restraining the defendants, who are also members of the Parsi community, from interfering with the rights of the plaintiffs or other Parsis of Allahabad to enter peacefully in the Fire Temple and perform the religious rites etc. The Inspector of Stamps, who has inspected the file, made a report that the relief sought by the plantiffs was a composite relief for declaration and injunction and consequently court-fee was payable under Section 7(iv)(a) of the Court-fees Act The court below did not agree with the report of the Inspector of Stamps. It held that the suit was a mere suit for substantive relief for injunction and court-fee was payable under Section 7(iv-B)(b) of the Court-fees Act. It is against this order that the present revision has been filed.

3. It has been contended by the learned Standing Counsel in this case that having regard to the allegations made in the various paragraphs of the plaint, it appears that the relief was to obtain a declaration of the plaintiff's right to worship in the temple and to restrain the defendants from interfering with the plaintiff's right of worship. His contention is that even though the relief as worded may appear to be a mere relief for injunction, yet it is a composite relief consisting of a declaration with a consequential relief of injunction. I do not agree with the learned argument of the learned Standing Counsel in this behalf.

4. Under Section 7(iv)(a) of the Court-fees Act it is necessary that the plaintiff must pray for a declaration with a consequential relief. There may be certain cases in which the relief sought is so worded as to include both a declaration and a consequential relief either of possession or of injunction; but there are certain other cases in which the relief claimed, whether for possession or for injunction, may be a substantive relief without any implied relief for declaration. The real test in such cases has been considered in the authority of Sri Krishna Chandraji v. Shyam Behari Lal, AIR 1955 All 177. But the major test in all such cases is that the relief claimed must be such as could not be claimed independently of a declaration.

In the present case this test would not apply because according to the allegations made in the plaint the plaintiffs alleged that the temple is a temple of the Farsi community in which every Parsi has a right to worship. The relief for injunction has been claimed because of the certain alleged acts on the part of the defendants, in such a suit it was not at all necessary for the plaintiffs to claim a declaration of their right of worship. This suit is a representative suit under Order 1 Rule 8 C. P. C. and it is not necessary for the Court to give any declaration about the plaintiff's right of worship What the Court has to decide is the nature of dedication, if any. In a case of this type relief for injunction can only be claimed as a substantive relief and not as a consequential relief with some express or implied declaration as contemplated by Section 7(iv)(a) of the Court-fees Act. It is a suit to obtain a mere relief for injunction provided for in Section 7(iv-B) of the Court-fees Act.

In the case of Murlidhar v. Bansidhar reported in 1961 All. LJ 763 ; (AIR 1963 All 86) a Division Bench of this Court observed at p. 767 (of All LJ): (at p. 88 of AIR) that in cases where injunction could not have been claimed without a declaration or in cases where it was necessary for the plaintiff to claim a declaration in order to get an injunction, the relief of injunction will be a consequential relief, but in cases where injunction could be claimed independently of the declaration as a substantive relief, the suit for injunction would be maintainable and the court-fee payable would be the same as provided for by Section 7(iv-B) of the Act The present is a suit of that nature. The relief for injunction claimed is a substantive relief and not a consequential relief as was argued by the learned Standing Counsel.

5. One other point which was raised in this revision was that the plaintiffs have placed an arbitrary value of Rs. 151/- at the relief. This relief should have been put at one-tenth of the market value. This was said to be Rs. 12,000/-. This contention appears to have been raised for the first time in this revision because the order passed by the court below goes to show that:-

'This view was not challenged by the Stamp Officer either in his report or during the course of the argument. Therefore the market value of the temple in respect of which the injunction is sought for in this suit cannot be valued according to the mode provided in the explanation No. 1 attached to Section 7(iv-B)(b) and we must be satisfied with the valuation which the plaintiff gives in his plaint.'

6. In view of the aforesaid observation of the learned Civil Judge the contention of the learned Standing Counsel raised for the first time in this civil revision cannot be gone into. The court-fee paid in this case is, therefore, sufficient.

7. The revision fails and is dismissed, but no order is made as to costs. Let the record of the case be sent back to the court below forthwith.


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