P.V. Dixit, C.J.
1. This is a petition to revise an order of the District Judge, Ujjain, directing the petitioners to pay ad valorem court-fees in a suit filed by them with the consent of the Advocate-General under Section 92, Civil Procedure Code.
2. The petitioners are two in number. They claim to be the Shwetambar Murti-Poojak Jains and followers of Tapagachha group worshipping the idol of Shri Sheshphana Parshwanathji. In this capacity they have filed a suit in respect of an alleged public trust for religious and charitable purposes created by Premvijayaji Yeti by his will. That trust is said to relate to the temple of Shri Parshwanathji Sheshphana situated in Bansphod Gali, Ujjain. The three defendant-opponents, Sarvashri Shankarprasad, Bnan-varlal son of Gyanchand and Deepchand, are alleged to be the three surviving trustees appointed under the will executed by Premvijayaji. The fourth defendant-opponent Bhanvarlal son of Akheraj is alleged to have obtained certain trust property from his deceased father Akheraj, who was also one of the trustees appointed by the will of Premvijayaji. The plaintiffs have averred that the said Bhanvarial has been impleadcd in the suit as the legal representative of the deceased trustee Akheraj.
The plaintiffs have charged the trustees with dereliction of duty and made allegations about the loss of trust property and damage to it. The reliefs claimed by them are -- (a) removal of the present trustees, (b) appointment of new' trustees, (c) rendition of account to the new trustees and the plaintiffs by all the defendants, (d) delivery of possession of the trust property to the new trustees, (e) a decree in favour of new trustees and against the present trustees for the payment of such amount as may be found due on taking of the accounts, (f) a decree for damages on account of loss and deterioration of trust property, (g) the framing of a scheme for the management of the trust according to the directions contained in the will of Premvijayaji, and (h) the grant of such further or other relief as the nature of the case may require. The plaintiffs have valued the claim at Rs. 1 lakh; but they have paid a fixed court-fee of Rs. 20/-on the plaint under clause (vi), Art. 17 of Schedule 11, Court-fees Act, alleging that it is not possible to estimate at. a money-value the subject-matter in dispute.
The learned District Judge has held that while some of the reliefs claimed by the plaintiffs fall under Section 92, C. P. C., the reliefs of damages and a decree for a sum found due on accounting are outside the scope of Section 92; that the reliefs of damages and a decree for a sum found due on account are capable of valuation; that the plaintiffs themselves have valued the claim for damages at Rs. 85,000/- and have alleged that the amount that will be found due after accounting would be Rs. 15,000/-; and that accordingly on these reliefs the plaintiffs must pay 'ad valorem' court-fees as required by Section 7 (i) and Section 7 (iv) (f) of the Court-fees Act.
3. It was argued by Shri Joshi, learned counsel appearing for the petitioners that as the plaintiffs' suit was one under Section 92 filed with the consent of the Advocate-General, Article 17, clause (vi) of Schedule II of the Court-fees Act 'ipso facto' applied and the fixed fee as therein provided was all that was payable; that the suit was in substance claiming a relief falling under Section 92 and even if some reliefs did not fall within the purview of Section 92, yet s fixed court-fee was payable.
4. In my judgment, there is no force in the contention advanced on behalf of the petitioners, The Court-fees Act does not contain any specific provision laying down that a certain fixed court-fee shall be payable for 3, suit under Section 92, C. P. C. It is true that in numerous cases it has been held that in a suit under Section 92 a fixed court-fee under Article 17 (vi) of the Court-fees Act is payable. But this is not because of the suit in any of those cases being one under Section 92 C P. C. but because of the fact that in all those cases, subject-matter regard to the nature of the reliefs claimed, the subject-matter in dispute was incapable of being estimated, at a money value. The suits in those cases thus fell within the terms of Article 17 (vi).
It is easy to see that if in a suit under Section 92, C.P.C. the reliefs claimed are strictly confined to those specifically set out in Section 92 (1), then it is not possible to estimate at a money value the subject-matter in dispute. As such a suit is not otherwise provided for by the Court-fees Act, Article 17 (vi) of Schedule II becomes applicable. In some suits purporting to be under Section 92, C. P. C., while some of the reliefs claimed may be within the scope of Section 92, other reliefs may well fall outside the scope of that section. The relifs claimed may be capable of being estimated at a money value and when they are so capable of valuation, then there is no reason why the plaintiff should not be asked to pay the proper court-fee chargeable on the reliefs so claimed.
The true test for determining the court-fee payable in suits described as 'under Section 92 in my opinion, has been laid down in Mirza Momtazali Khan v. Banwari Lal Roy, ILR 1945-1 Cal 266 : (AIR 1949 Cal 98). In that case, it has been ruled that in the absence of any specific provision in the Court-fees Act for a suit under Section 92, C. P. C., the question whether such a suit can be brought within the purview of Article 17 (vi) depends on the nature of the allegations made and the reliefs claimed in the suit; that for the purposes of court-fees it is wholly irrelevant to consider whether the reliefs claimed are within or outside the scope of Section 92 and whether the suit is or is not maintainable; and If in the suit as framed it is not possible to estimate the reliefs claimed at a money value and if the suit is not otherwise provided for in the Court-fees Act, then Article 17 (vi) of Schedule II would apply, otherwise the plaintiff must pay the proper court-fee chargeable on the reliefs claimed.
5. On this test there can be no doubt that the petitioners have been rightly directed by the learned District Judge to pay 'ad valorem' court-fee on the reliefs of damages and a decree against the defendants for the payment of such amount as may be found due on the taking of the accounts. In paragraph 6 of the plaint the petitioners have made a claim for damages for the loss caused to the trust property by the defendants' regligence and have valued the damages at Rs. 85,000/-. The relief of damages is not one of those reliefs specified in Section 92 (1) and it cannot be argued with any degree of force that it is incapable of valuation in terms of money. The petitioners themselves have put the valuation at Rs. 85,000/-.
It is also noteworthy that the plaintiffs claim damages not only from the three trustees but also from the opponent Mo. 4, Bhanwarial, the son of a deceasad trustee. Bhanwarial is thus an utter stranger and the claim against him, whether for damages or for accounts, is totally outside the scope of Section 92, C. P. C. In regard to the reliefs of rendition of accounts and a decree in favour of the new trustees and against the present trustees for the payment of such amount as may be found due after the taking of the accounts, they do not clearly correspond to clause (d) of Section 92 (1), C. P. C. The nature of the relief of 'directing accounts and inquiries' mentioned in Section 92 (1) (d) has been explained by a Division Bench of this Court in. Nagorao Shamji v. Gulabrao Ramji, 1941 Nag L J 587 It has been pointed out in that case that in a suit for accounts under Section 92, C. p. C., all the trustees must be joined as parties and they can be asked to account on one of two bases (a) for the moneys they have received, or (b) for the moneys they ought to have received. The basis of taking accounts is thus wilful default.
The allegations in paragraph 6 of the plaint clearly show that the petitioners are not claiming accounts on either of the bases referred to in 1941 Nag L J 587 (Supra). What they have claimed is the back accounting in very general and vague terms, not only from the trustees but also from a stranger, without any allegations of dishonesty and malversation. This is not a case of accounts and inquiries contemplated under clause (d) of Sub-section (1) of Section 92, C. P. C. This is a case in which it is sought to obtain accounts not only from the trustees but also from a third party merely in order to facilitate the recovery of any amount, if found due, by the trustees when appointed. Such a claim for accounts falls directly under Section 7 (iv) (f) of the Court-fees i Act. That being so, the petitioners must pay for the relief of accounts 'ad valorem' court-fees according 10 the amount at which they have valued the relief. This valuation, as put by the petitioners themselves, is Rs. 15,000/-.
6. For all these reasons, the decision of the learned District judge with regard to the payment of 'ad valorem' court-fees is right. This petition is, therefore, dismissed with costs of opponents Nos. 1 and 4. Counsel's fee for each of the said opponents is fixed at Rs. 50/-.