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Chief Inspector of Stamps Vs. Mt. Hulasiya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All111
AppellantChief Inspector of Stamps
RespondentMt. Hulasiya
Excerpt:
- - and this is specially so in the case of a fiscal statute like the court-fees act which must be interpreted as far as possible in favour of the suitor......behalf that the present suit had arisen out of execution proceedings and the order under order 21, rule 98, civil p.c. and that the execution court having decided against the plaintiff in summary proceedings consequent upon an application by the decree-holders (defendants 1 and 2) under order 21, rule 97, civil p.c. the plaintiff had filed this regular suit under order 21, rule 103, civil p.c. it was contended that the suit fell under article 17, clause (i) of schedule 2, court-fees act, and the court-fee of us. 15 which had been paid was quite sufficient. the learned civil judge by his order dated 14th may 1943 upheld the plaintiff's contention and decided that the court-fee paid was sufficient.2. on behalf of the chief inspector of stamps it has been strenuously contended that.....
Judgment:
ORDER

Wali Ullah, J.

1. This is an application in revision by the Chief Inspector of Stamps under Section 6B, Amended Court-fees Act. By means of this application the applicant seeks a declaration under Sub-section (3) of that section that the proper court-fee has not been paid on the plaint in a suit filed in the Court of the Civil Judge, Moradabad. If such a declaration be made it would obviously be necessary for the Court to determine the amount of deficiency in the court-fee. The plaintiff who is the opposite party in this revision instituted a suit specifically under Order 21, It. 103, Civil P.C. for a declaration that the plaintiff was the owner of one-third share of the house in suit and was also in possession thereof and that defendants 1 and 2 were not entitled to eject her in pursuance of their decree No. 408 of 1941 of the Court of the Munsif, Moradabad. The following reliefs were prayed for in this suit : (a) A declaration may be made to the effect that the plaintiff is owner in possession of one-third of the entire property specified at the foot of the plaint and that defendants 1 and 2 have no right as against the plaintiff on the basis of decree No. 408 of 1941, Misri Lal and others versus Jamna Das and others and (b) costs of the suit may be awarded. The valuation of the suit for purposes of jurisdiction was laid at Rs. 5500 which was also said to be the market value of the property. A court-fee of Rs. 15 was paid and it was stated that this sum was the proper amount payable under-Art. 17 (i) of Schedule 2, Court-fees Act. The defendants raised no objection on this score but the Chief Inspector of Stamps submitted a report to the effect that the plaintiff's suit came within the purview of Sub-section (iv-A) (1) of Section 7, Court-fees Act, inasmuch as it involved the adjudging void or voidable a decree and it was, therefore, necessary for the plaintiff to pay a court-fee on the market value of the property in suit, namely on Rs. 5500. Objections to the report of the Chief Inspector of Stamps were filed on behalf of the plaintiff. In substance it was contended on her behalf that the present suit had arisen out of execution proceedings and the order under Order 21, Rule 98, Civil P.C. and that the execution Court having decided against the plaintiff in summary proceedings consequent upon an application by the decree-holders (defendants 1 and 2) under Order 21, Rule 97, Civil P.C. the plaintiff had filed this regular suit under Order 21, Rule 103, Civil P.C. It was contended that the suit fell under Article 17, Clause (i) of Schedule 2, Court-fees Act, and the court-fee of us. 15 which had been paid was quite sufficient. The learned Civil Judge by his order dated 14th May 1943 upheld the plaintiff's contention and decided that the court-fee paid was sufficient.

2. On behalf of the Chief Inspector of Stamps it has been strenuously contended that Sub-section (iv-A) of Section 7, Court-fees Act, which has been recently added by the United Provinces Court-fees Amendment Act, 1938, covers this case inasmuch as the declaration sought by the plaintiff necessarily 'involves' the adjudging of the decree in favour of defendants 1 and 2 to be void to the extent of the share of the plaintiff in the house in dispute. It has been urged that inasmuch as the plaintiff was not a party to the aforesaid decree she must pay court-fee on one-fifth of the market value of the property in question. On the other hand, on behalf of the opposite party, it is contended that the reliefs sought do not directly or indirectly involve a cancellation of the decree or the adjudging of the decree as a void or voidable one. It has been urged that the suit being one under Order 21, Rule 103, Civil P.C. it specifically falls within the purview of the provisions of Article 17 (i) of Schedule 2, Court-fees Act, and therefore the fixed court-fee of Rs. 15 which has been paid was quite sufficient. In order to decide the main issue in this case it is necessary to investigate the allegations in the plaint in order to determine the real nature of the suit and of the reliefs claimed. It had been repeatedly held by this Court that it is Open to the Court to look into the allegations in the plaint in order to determine the true nature of the suit and of the reliefs claimed; and that it is the substance of the plaint and not the form of the plaint which is the determining factor.

3. I have carefully examined the allegations in the plaint and the reliefs sought and it seems to me that there can be no question that the present suit was one under Order 21, Rule 103, Civil P.C. and it was, therefore, in effect a suit for setting aside a summary decision or order of a civil Court not established by Letters Patent within the provisions of Sub-section (1) of Article 17 of Schedule 2, Court-fees Act. In this view of the matter the plaint was obviously sufficiently stamped when a court-fee of Rs. 15 was paid by the plaintiff. The provisions of Section 7, Sub-section (iv-A) have been enacted for the purpose of making specific provisions for computing the valuation of suits and the amount of court-fee in cases in which the plaintiff prays for the cancellation of or adjudging void or voidable...a decree. In the present case the dominant idea of the plaintiff is to avoid the summary order passed by the execution Court under Order 21, Rule 98, Civil P.C. The suit under Rule 103 of Order 21, Civil P.C., is in substance not one for avoiding the decree passed in favour of defendants 1 and 2 but in reality it is a suit which seeks the reversal of the order of the execution Court. The case in Phul Kumari v. Ghanshyam Mishra ('08)35 cal. 202 where the facts were very similar to those of the present case is in point. The plaintiff in that case was in possession of certain immovable property which she had purchased from defendant 2 against whom defendant 1 obtained, in the Court of a Subordinate Judge, a decree in execution of which the plaintiff's property was attached. Her claim in the execution proceedings was rejected and she thereupon brought in the Subordinate Judge's Court a suit for a declaration of her right to the property and for an injunction to restrain defendant 1 from executing his decree against it. On these facts their Lordships of the Privy Council held that the suit was one under Section 283, Civil P.C. (now Order 21, Rule 63, Civil P.C.) for which the proper court-fee was that prescribed by Sub-section (1) of Article 17 of Schedule 2, Court fees Act, (Act 7 of 1870). Obviously, on principle, it would make no difference whether the suit is one under Order 21, Rule 63, or one under Order 21, Rule 103, Civil P.C.

4. It is true that this was laid down by their Lordships of the Privy Council long before the Amending Act of 1938 by which the new Sub-section (iv-A) of Section 7, Court-fees Act was enacted by the Legislature, but it is significant that the Amending Act of 1938 (U. P. Act 19 of 1938) which introduced the new Sub-section (iv-A) into Section 7, Court-fees Act, and to a certain extent amended Article 17 (1) of Schedule 2, Court-fees Act, left the position in tact in so far as a suit for setting aside a summary decision or order passed under Order 21, Rule 98, is concerned. Therefore it seems to me that the principle of the decision of their Lordships of the Privy Council in the case referred to above would even now govern the present suit. In this view of the matter it is unnecessary to consider whether the reliefs claimed in the present suit can possibly come within the purview of Sub-section (iv-A) of Section 7, Court-fees Act. Assuming, however, that the reliefs also come under Sub-section (iv-A) of Section 7 of the Act, the special provisions for suits of this nature contained in Article 17 (1) of Schedule 2 would override the general provisions contained in Sub-section (iv-A) of Section 7 of the Act; and this is specially so in the case of a fiscal statute like the Court-fees Act which must be interpreted as far as possible in favour of the suitor. In view of the above, in my judgment, the plaint was sufficiently stamped. There is, therefore, no force in this revision and it is dismissed with costs.


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