(1) This is a petition for revision against an order of the trial Court holding that the suit which has been filed by the petitioner was one for declaration, and injunction has been claimed as a consequential relief and, therefore, ad valoerm Court-fee was payable apparently under S. 7(iv)(c) of the Court-fees Act. It was held that the plaint was not adequately valued for purposes of court-fee and jurisdiction.
(2) The plaintiff had instituted a suit for injunction alleging that he was a co-share in the truck to the extent of 1/2 which was in possession of the defendant and that the defendant be restrained from disposing it of. The defendant foiled a written statement denying the claim of the plaintiff and averring that the plaintiff had no interest as an owner in the truck. The Court below was of the opinion that where the property was not in possession of the plaintiff where the defendant also challenged his title, it could not be regarded as a suit for injunction alone. The view of the trial Court does not appear to be sustainable. In the first instance it is well settled that it is only the valuation given by the plaintiff that has to be considered for purposes of deciding the question of the valuation of the suit for purposes of court-fee and jurisdiction. The suit which the plaintiff has filed, is essentially for injunction and while claiming that relief he has asserted that he had 1/2 share in the truck in question. That does not mean that there is any legal necessity for the plaintiff to get a declaration of his right before he can get an injunction.
The correct test which has been laid down in decided cases is that where there is any legal necessity for the plaintiff to get a declaration of his right before he can get an injunction to protect it the suit will fall under S. 7(iv)(c) even though the plaintiff sought declaration by means of averments in the body of plaint and not prayed for declaration specifically at the end of the plaint. When there is some legal obstacle which has to be removed before a consequential relief can be granted, it is incumbent upon the plaintiff to pray for a declaration which will have the effect of removing that obstacle. If the plaintiff merely avers a title which can be established without the cancellation of a document or the nullification of any adverse title and only the reliefs are claimed which will naturally flow from the establishment of the title which he avers, it is not necessary for the plaintiff to pray expressly for a declaration of that title and the suit would fall under S. 7(iv)(d) and not under S. 7(iv)(c) and the court-fee would be payable in such cases under S. 7(iv)(d) vide Venkata Ranga Rao v. Sita Ramchandra Rao, AIR 1941 Mad 91.
In Veerappa V. Arunachalam, AIR 1936 Mad 200 it was held that the fact that the question of title also may have to be incidentally gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for injunction. In that case there can be no objection to the maintainability of a suit for only an injunction. The decision of a Bench consisting of Derbyshire C. J. and B. K. Mukherjea J. (as he then was) in Binode Behari v. K. C. Biswas & Co., AIR 1940 Cal 552 appears to have been based on the same principles. A Full Bench of the Mysore High Court in H. R. Patel v. Venkatalakshamma, (S) AIR 1955 Mys 65 (FB) expressed a similar view making it quite clear that where the relief sought by the plaintiff was for an injunction then it could not be regarded to be the consequential relief unless it could not be granted except on declaration of the right of the plaintiff and not merely on proof of that right.
It was observed that the plaintiff in a suit for recovery of possession of land, if entitled to possession on proof of title was bound to pay court-fee on the basis that it was a suit for possession only though as a matter of fact there was prayer in the plaint for a declaration of his title also. The Court has to be guided by the substance of the case of the plaintiff asset out in the plaint and treat it as if he has not prayed for the superfluous and unnecessary prayer for declaration.
(3) The view expressed in the above cases seems to be, with respect, correct and no authority to the contrary has been cited. The learned counsel for the respondent has relied on the amendment of the proviso inserted by Punjab Act. No. XXXI of 1953 to S. 7(iv)(c).That proviso says--
'Provided further that in suits coming under sub-clause (c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section'.
For applying the proviso it has first to be decided whether a suit falls under sub-clause (c) of S. 7(iv). If it falls under sub-clause (d) of S. 7(iv) then the question of applying the proviso cannot possibly arise. In the present case the suit clearly falls under sub. cl (d) of S. 7(iv) and it is not possible to agree with the view taken by the trial Court. The other point which has been mentioned by the learned counsel for the respondent is that the property involved in the present suit is movable and is admittedly out of possession of the plaintiff. That, however, will not make any difference because no such distinction has been recognised either by the statute or authorities between movable and immovable properties.
(4) For the reasons given above this petition is allowed and the order of the Court below is set aside. It is directed to proceed with the disposal of the suit in accordance with law, The parties shall appear before the trial Court on 28th January, 1965.
(5) Petition allowed.