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Dr. B. Hirji and ors. Vs. B.T. Shapoorji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 289 of 1956
Judge
Reported inAIR1961All483
ActsCourt-fees Act, 1870 - Sections 7; Uttar Pradesh Court-fees (Amendment) Act
AppellantDr. B. Hirji and ors.
RespondentB.T. Shapoorji and ors.
Appellant AdvocateR.C. Ghatak, Adv.
Respondent AdvocateR.K. Kackar, ;G.N. Kunzru and ;Lalji Sinha, Advs.
DispositionAppeal partly allowed
Excerpt:
.....and injunction are independent of each other therefore court fees paid by him is sufficient - held, relief of injunction is incidental to the main relief of declaration and court fees is payable. - - if a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the court is entitled to see what is the real nature of the relief, and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. municipal board, allahabad air1958all41 and it was held that where a declaration is sought for the existence of a right and a permanent injunction is sought..........is a consequential relief. the court has to see what is the nature of the suit and of the reliefsclaimed having regard to the provisions of section 7 of the court-fees act. if a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the court is entitled to see what is the real nature of the relief, and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief.the maintainability or otherwise of a suit for a bare declaration is not conclusive of the nature of the suit for the purposes of court-fees. if the suit as framed is not maintainable.....
Judgment:

J.D. Sharma, J.

1. This is a plaintiffs' appeal under Section 6A, Court-fees Act against an order dated the 31st July, 1956 of the learned Civil Judge, Allahabad, holding that the court-fee paid by the plaintiffs was insufficient.

The plaintiffs claimed the following reliefs :

1. That it may be declared that the entire proceedings of the meeting of 14-2-1952 including the resolutions passed therein are illegal, ultra vires and mill and void as regards the Mandli which is neither wound up by them nor can be wound up for any reasons whatsoever (valued at Rs. 5,000).

2. That the defendants be restrained front interfering with or obstructing in any manner whatsoever the plaintiffs in their use and enjoyment of the 'Bazam Gandhi Hall' property belonging to the Mandli as members thereof (valued at Rs. 200).

2. The plaintiffs' case, in brief, was that the parties were the members of a Socio-Religious Association called the Bazame Jashane Roze Bahrain Mandli, which is popularly known as the Mandli; the Association owned a hall known as Bazam Gandhi Hall situate at 7, Canning Road, Allahabad. On the 14th February, 1952 some of the defendants passed certain resolutions for winding up the Mandli which they had no right to do. The entire proceedings of the meeting were mala fide and null and void.

3. The plaintiffs paid a court-fee of Rs. 18/12/- on relief No. 1 and Rs. 50/- on relief No. 2.

4. The defendants took the plea that the court-fee paid was insufficient as the plaintiffs had claimed a relief for a declaration with a consequential relief and the court-fee was payable under Section 7(iv)(a) of the Court-fees Act.

5. The learned Civil Judge upheld the plea of the defendants and held that the court-fee was payable on a sum of Rs. 12,000/-, the value of the property Bazam Gandhi Hall.

6. The contention of the appellants is that relief No. 1 is for a declaration and relief No. 2 for injunction is an independent and substantive relief and is not a consequential relief, and therefore the court-fee paid is sufficient.

7. The relevant provisions are contained in Section 7(iv)(a) of the Court-fees Act which runs as follows :

'In suits to obtain a declaratory decree or order where consequential relief other than relief specified in Sub-section (IV-A) is prayed..... according to the amount at which the relief sought is valued in the plaint or memorandum of appeal: Provided that in suits falling under Clause (a) where the relief sought is with reference to any immovable property, such amount shall be the value of the consequential relief and if such relief is incapable of valuation then the value of the immovable property computed in accordance with Sub-section (V), (VA) or (VB) of this section as the case may be ..... '

8. The question therefore is whether the relief for injunction as claimed by the plaintiffs is a consequential relief. The Court has to see what is the nature of the suit and of the reliefsclaimed having regard to the provisions of Section 7 of the Court-fees Act. If a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief, and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief.

The maintainability or otherwise of a suit for a bare declaration is not conclusive of the nature of the suit for the purposes of court-fees. If the suit as framed is not maintainable under the law, the proper course is to dismiss the suit and not to treat it as something different from what it really is. It was held in Kalu Ram v. Babu Lal : AIR1932All485 that the expression 'consequential relief' in Section 7(iv)(c) means some relief which would flow directly from the declaration given; the valuation of which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a substantive relief.

9. Analysing the above definition the following elements are essential to constitute a consequential relief :

(1) The relief must flow directly from the declaration given.

(2) The valuation of the relief must not be capable of being definitely ascertained.

(3) The relief must not be specifically provided for anywhere in the Act.

(4) The relief must be one which cannot be claimed independently of the declaration as a substantive relief.

10. Almost a similar question arose in Madan Mohan v. Tejram George Coronation Hindu School Association : AIR1949All207 . The reliefs claimed in that suit were :

(a) It be declared that the plaintiff is in fact the President of Tej Ram George Coronation Hindu School, and is entitled to function as such.

(b) It be declared that the resolutions dated 12-4-45, 2-5-45, 8-6-45, 10-6-45 and 1-7-45 and all the proceedings carried out by the defendants are void and ultra vires.

(c) Defendants be restrained from altering or adding to the name of the institution.

(d) Defendant 2 be restrained from functioning as the President.

(e) Defendants be restrained from interfering in plaintiffs' functioning as the President.

11. Relying upon the Full Bench decision in Kalu Ram's case : AIR1932All485 it was held that a consequential relief means a relief which necessarily flows from the principal relief sought. It is a relief which in the circumstances of the case cannot be allowed if the principal relief is refused. The court-fee was held to be payable on the aggregate value of the five reliefs claimed in the plaint.

12. In Sri Krishna Chandraji v. Shyam Behari Lal : AIR1955All177 the learned Judges, while following the Full Bench decision referred to above elucidated the fourth ingredient as a relief that is not capable of being claimed in the absence of a claim for declaration as a substantive relief, that is to say, no suit lor that relief can lie unless the suit also contemplates a declaratory relief. It was further remarked that it is only in such suits that it can be said that the relief sought is so linked with the declaratory relief that it should be considered a relief consequential to the declaratory relief.

The question again, arose in Vibhuti Narain Singh v. Municipal Board, Allahabad : AIR1958All41 and it was held that where a declaration is sought for the existence of a right and a permanent injunction is sought restraining some one from interfering with the exercise of that right, the permanent injunction would clearly be a relief consequential to the declaration and the court-fee would be paid under Section 7(iv)(a) of the Court-fees Act.

13. The principle deducible from the above decisions is that a relief flowing necessarily from a relief for declaration and not capable of being claimed independently of it is a consequential relief within the meaning of Section 7(iv)(c) of the Court-fees Act. The two reliefs must be asked for as one joint and indivisible relief, so that it the court in the exercise of its discretion refuses to pass a declaratory decree the claim for further relief also will fall with it.

14. Applying the above principle to the instant case it is clear that the relief for injunction is incidental to the principal relief for declaration and cannot be granted independently of it In other words, the relief for injunction cannot be granted if the claim for the declaratory relief fails. The learned Civil Judge has therefore rightly held that the suit is for a consequential relief and Section 7(iv)(a) of the Court-fees Act is applicable.

15. In the view of the learned Civil Judge the court-fee is payable on the value of the building known as Bazam Gandhi Hall. Its value has been held to be Rs. 12,000/-. It is urged on behalf of the appellants that the claim is for the exercise of the rights as members of the Mandli with respect to the Bazam Gandhi Hall and therefore the court-fee is not payable on the value of that building. The contention is not without force. The Proviso in Section 7(iv)(a) is applicable only when the relief sought is with reference to any property. This reference to property must be direct and express. It was held in Madan Mohan's case : AIR1949All207 that if the relief sought in the suit indirectly affects certain immovable property that would be no ground for applying the said Proviso.

16. The court-fee is therefore payable not on the value of the building but on the amount at which the two reliefs have been valued in the plaint, which is Rs. 5,200.

17. The appeal is partly allowed and it is held that court-fee is payable on Rs. 5,200. The learned Civil Judge shall realise the court-fee accordingly. In the circumstances of the case I make no order as to costs.


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