1. The following question has been referred to the Full. Bench for an answer: 'Whether the court-fee of Rs. 10 paid by the plaintiff on the plaint as filed by him was sufficient, and it not, what would be the proper court-fee payable.'
2. The plaintiff in this case was a minor suing through a guardian and his case was that in a previous suit brought for the partition of a joint Hindu family property he was not effectively represented by his guardian who was very negligent and careless and did not properly look after his case. The suit was referred to arbitration which resulted in an award which was incorporated in the decree of the Court, The plaintiff prayed for the following reliefs specifically: (a) It may be held that Govind Prasad, defendant 3rd party, did not in any way look after the rights of the plaintiff during the pendency of suit No. 65 of 1927, in the Court of the Subordinate Judge, Ghazipur, and that he was guilty of gross negligence on account of which the plaintiff was greatly deprived of his rights, and it may be declared that the decree No. 65 of 1927 is not in any way binding upon the plaintiff and is altogether void and ineffectual, (b) In addition to relief (a) any other relief which may, in the opinion of the Court, be just, may also be granted to the plaintiff against the defendants, together with the costs of this suit.
3. He valued the subject-matter of the suit for purposes of jurisdiction at Rs. 45,308 but paid a Court fee of Rs. 10 for the declaration that the decree is null and void. No separate valuation was given for the reliefs claimed. An attempt to supply it by way of amendment proved infructuous. The question that arose before the Division Bench was whether the payment of Rs. 10 as Court fee, treating the relief claimed as one for obtaining a mere declaratory decree, was sufficient or whether the plaintiff was claiming something more, i.e., a substantial relief for which an ad valorem Court fee should be charged. Recently a Bench of five Judges has had to consider some provisions of the Court-fees Act in Kalu Ram v. Babu Lal : AIR1932All485 . In that case the plaintiff had asked for reliefs for adjudging a certain mortgage deed void and ineffectual and for its cancellation and also for the cancellation of a compromise decree which resulted in a preliminary decree. The Full Bench pointed out that the reliefs claimed were something more than a mere declaratory decree and that the payment of Rs. 10 was not sufficient.
4. The learned advocate for the respondents has relied strongly on a passage in Kalu Ram v. Babu Lal : AIR1932All485 where it was remarked that 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 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. Obviously the Full Bench did not 'intend to lay down that where the plaintiff deliberately omits to claim a consequential relief and contents himself with claiming a mere declaratory decree, the Court can call upon him to pay Court fees on the consequential relief which he should have claimed although he has omitted to do so. What was held was that if the plaintiff does not ask for a mere declaratory decree: but also asks for a relief which he calls 'consequential' relief, the mere fact that he calls it so would not prevent the Court from demanding full court-fee; if in reality the additional relief claimed was a substantive relief and. not a mere consequential relief. We do not think that the observation was. intended to go further than this.
5. On the other hand, there is no doubt that so far as the suits relating to the cancellation of instruments are concerned, the Full Bench in Kalu Ram v. Babu Lal : AIR1932All485 clearly held that a relief to have a registered instrument adjudged void or voidable with the possible result of its being delivered up and cancelled and a copy of the decree being sent to the registration office for a note to be made by the registering officer in his books, is much more than a mere declaratory relief. It is undoubtedly a substantial relief of a nature differing from a declaratory one. It was. clearly pointed out that it was not incumbent on a plaintiff to ask in express terms a relief for the instrument to be delivered up and cancelled and that he might merely ask for its being adjudged void or voidable. Nevertheless a suit which falls under Section 39 of the Specific Relief Act, was held to be not a suit for obtaining a mere declaratory decree, but one for obtaining a substantive relief not otherwise provided for. The case of a decree stands on a different footing, because a suit to avoid it does not strictly fall under Section 39 of the Specific Relief Act. Strictly speaking, it would not even fall within the scope of Section 42, Specific Relief Act. Where the plaintiff chooses to ask for a definite relief for the cancellation of a decree or for the setting aside of that decree in addition to a declaration that the decree is not binding upon him, he is professedly asking for something more than a mere declaratory decree. At the stage at which the question of Court fee arises, it is immaterial to consider whether such relief is superfluous, redundant or useless or even impossible to be granted. Obviously, he has asked for more and so long as he does not amend his plaint and abandon this relief he can be called upon to pay Court fee for the relief asked for.
6. The case before the Full Bench was of such a type. There the plaintiff had in express terms asked for the cancellation of the compromise and the preliminary decree. Ad valorem court-fee on the consolidated prayer for the cancellation of the compromise and the decree was accordingly held to be due. As regards the case where the plaintiff stops short of asking anything more than a mere declaration that a certain decree is not binding upon him, opinion in the various High Courts is divided. There is no doubt that Section 42, of the Specific Relief Act is not exhaustive so as to exclude all other forma of declaratory suits. Indeed, in several cases their Lordships of the Privy Council have entertained declaratory suits and granted declarations which strictly speaking did not fall within the purview of Section 42, of the Specific Relief Act. In Robert Fischer v. Secretary of State (1899) 22 Mad 270, (at p. 282), their Lordships pointed out that that suit was to have the true construction of the statute declared and to have an act done in contravention of the statute, rightly understood, pronounced void and of no effect. Their Lordships observed that that is not the sort of declaratory decree which the framers of the Act had in their mind. In Partab Singh v. Bhabuti Singh (1913) 35 All 487, their Lordships granted to minors, against whom a decree had been obtained by the fraud and misrepresentation of their de facto guardian and manager, a declaration that the decree was not binding upon them. The actual form of the decree was a decree setting aside the previous decree and declaring that the agreement of compromise and the decree based upon it were not binding upon the minors or either of them, and that they were entitled to such rights as they had before their previous suit was dismissed.
7. The origin and purpose of Section 42, of the Specific Relief Act and the history how declaratory decrees came to be granted have been set out in the judgment of their Lordships in Robert Fischer's case (1899) 22 Mad 270. No doubt there has 'been some laxity in allowing plaintiffs to frame their plaints by asking for declarations of all sorts. But where a plaintiff expressly asks for something more than a mere declaration, for example, cancellation or the setting aside of a decree, it is difficult to hold that the claim is one merely for obtaining a declaratory decree. The difficulty arises only where he simply asks that it be declared that a certain decree which has been passed against him previously is null and void and is not binding upon him.
8. The view taken in some cases of the other High Courts is that in such a suit the plaintiff is trying to get rid of a decree which stands in his way and which is capable of being executed against him and that without having that decree set aside or cancelled the plaintiff would have no right to resist its execution, and accordingly such a relief is not one merely for obtaining a declaratory decree but is for obtaining a mere substantive relief, which is not specifically provided for in the Court-fees Act and would accordingly fall under Article 1, of the Schedule 1. It cannot be denied that there is something to be said for such a view because in substance the object of the plaintiff is to frustrate a decree which has been passed against him and to nullify it and to get it out of his way. On the other hand, the court-fees Act is a fiscal measure and is to be construed strictly and in favour of the subject There is also no' doubt that there is a long course of decisions in this Court in which it has been laid down consistently, and over and over again, that where nothing more than a mere declaration is sought for, the suit is one for obtaining a declaratory decree and no ad valorem court-fee for such a relief can be charged. We may in this connection refer only to the recent cases of this Court in Radha Krishna v. Ram Narain : AIR1931All369 ; Brij Gopal v. Suraj Karan : AIR1932All560 , Lakshmi Narain Rai v. Dip Narain Rai : AIR1933All350 and Muhammad Ismail v. Liyaqat Hussain AIR 1932 All 310.
9. We accordingly think that on the principle of stare decisis, if nothing else, this course of decisions should not now be disturbed. We accordingly hold that inasmuch as the plaintiff in this case merely asked for a declaration that the previous decree was not in any way binding upon him and was altogether void and ineffectual, his suit was one for obtaining a declaratory decree only and falls under Article 17(3)' of the second schedule. The learned Advocate for the respondents has further urged that inasmuch as the plaintiff added relief (b) which was to the effect that in addition to relief (a) any other relief which may, in the opinion of the Court, be just, may also be granted to the plaintiff against the defendants, he must be deemed to have claimed more than a mere declaratory decree. But such a relief is unnecessarily added in most plaints and is not intended to mean anything more than reminding the Court of its power to grant other reliefs even though not specifically asked for. As the words are too vague and indefinite, and no specific and definite relief is referred to therein, we cannot regard it as one which requires the demand of additional court-fee nor do we consider that coupled with the declaratory relief it changes the nature of the relief claimed. Our answer to the question referred to us is in the affirmative. Let the answer be returned to the Bench concerned.