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Hans Raj Kalra Vs. Kishan Lal Kalra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberSuit Appeal Nos. 105 of 1970 and 35 and 429 of 1971
Judge
Reported inILR1976Delhi745
ActsCourt Fees Act, 1870 - Sections 7
AppellantHans Raj Kalra
RespondentKishan Lal Kalra and ors.
Advocates: S.N. Chopra,; G.S. Vohra,; A.S. Puri,;
Excerpt:
(i) court fees act, section 7(iv)--right of plaintiff to put any valuation under--court has not pwer to interfere with his valuation--plaintiff's valuation to also determine value for purposes of jurisdiction-suit valuation act, sections 8 & 9.; that section 7(iv)--of the court fees act gave a right to the plaintiff to place nay valuation that he liked on the relief that he seeks subject, however, 'to nay rules made under section 9 of the suits valuation act' and that 'the court has no power to interfere with the plaintiff's valuation'.; further, that ordinarily, valuation of a suit for on purpose has no impact on the valuation for the other prupose. however, section 8 of the suits valuation act incorporates an exception when it porvides that 'where any suits, other than those.....h.l. anand (1) this judgment will dispose of certain preliminary issues arising in suits no. 105/70, 429/71 and 35/71, which were consolidated. 3 hcd/76-5 (2) it appears that until his death on june 2, 1946 ishwar dass kalra had been carrying on business in delhi in the name and style of ishwar dass kaira & sons and the business consisted of a restaurant known as esplanade bar & restaurant which also had an l4 license. he was survived by three sons, sudershan kumar kaira, kishan lal kaira and hans raj kaira. since the death of the father there has been considerable expansion of the business which has been carried on in the name and style of esplanade bar & restaurant as indeed in a number of other names and styles, such as, kishan lal wine merchant, kishan lal & co. private ltd. and.....
Judgment:

H.L. Anand

(1) This judgment will dispose of certain preliminary issues arising in suits No. 105/70, 429/71 and 35/71, which were consolidated. 3 HCD/76-5

(2) It appears that until his death on June 2, 1946 Ishwar Dass Kalra had been carrying on business in Delhi in the name and style of Ishwar Dass Kaira & Sons and the business consisted of a restaurant known as Esplanade Bar & Restaurant which also had an L4 license. He was survived by three sons, Sudershan Kumar Kaira, Kishan Lal Kaira and Hans Raj Kaira. Since the death of the father there has been considerable expansion of the business which has been carried on in the name and style of Esplanade Bar & Restaurant as indeed in a number of other names and styles, such as, Kishan Lal Wine Merchant, Kishan Lal & Co. Private Ltd. and Kishan Lal Wine Merchants Private Ltd., for part of the period in the status of a joint Hindu family consisting of the three brothers and partly in the form of a partnership of which the three brothers were members. The three suits are a sequal to the unfortunate disputes that arose between Sudershan Kaira and Hans Raj Kaira, the two brothers on the one hand and Kishan Lal Kaira on the other with regard to the question as to the status of certain properties and business, including the liquor business, the extent of the right and interest of the brothers in the property and of their title to it, the entitlement of the brothers to the profits of the business and as to participation in it, the validity of certain orders made by the Excise authorities in relation to the liquor license and various matters connected therewith and arising out of these. Two of these suits being suit Nos. 105/70 and 429/71 were filed in this Court while suit No. 35/71 was initially filed in the Court of the Senior Sub-ordinate Judge, Delhi and was eventually transferred to this Court by virtue of the pendency of the other two suits.

(3) Suit No. 105/70 was filed by Hans Raj Kaira, one of the brothers, in 1970 for a declaration that the business of Kishan Lal & Co., along with its relevant liquor license till April 19, 1967, was a business of the Joint Hindu Family, of which the plaintiff and the other two brothers were members, and prior to that the business of M/s. Esplanade Bar & Restaurant was similarly a business of the Joint Hindu Family in the same manner and that since April 19, 1967 the said business run in the name of M/s. Kishan Lal &, Co., Kishan Lal Wine Merchant and Kishan Lal Wine Merchants Private Ltd. are partnership businesses of the three brothers. Certain other declarations were also sought substantively and in the alternative. Relief was also sought by injunction and a plea for rendition of accounts was also made. Certain other reliefs were also sought. Kishan Lal Kaira, his son Sudershan Kumar Kaira and M/s. Kishan Lal Wine Merchants (P) Ltd. are the defendants in the suit.

(4) Hans Raj Kaira, aforcsaid, filed a further suit, being suit No. 429/71, in October 1971 for a declaration that the L-4 license was the property of the Hindu Undivided Family, of which the plaintiff and the other two brothers were members, and continued to be so till April 19, 1967 notwithstanding the various partnerships entered into between them. In the alternative, a declaration was sought that the license in question was a property of the partnership entered into between the brothers and that the plaintiff and the other two brothers were co-licensees of the L-2 license. Certain orders made by the Excise authorities were also challenged as being illegal, ultra vires, arbitrary and malafide. Certain declarations were also sought with regard to the premises where the business was being carried on. The Union of India, Delhi Administration, certain excise authorities, Kishan Lal Kaira, his son, M/s. Kishan Lal Wine Merchants (P) Ltd. and the legal representatives of the third brother are the defendants in the suit.

(5) Suit No. 35/71 was originally filed by Sudershan Kumar Kaira in the Court of the Senior Subordinate Judge, Delhi, in December 1968 for rendition of accounts of profits of the partnership Kishan Lal and Co. Pvt. Ltd. from April 19, 1967 up-to-date, for the recovery of the amount found due on rendition of accounts, for a decree for perpetual injunction in favor of the plaintiff against defendants I and 3 restraining them from withdrawing any amount from the partnership Kishan Lal & Co. Pvt. Ltd., Kishan Lal Wine Merchant and Kishan Lal Wine Merchants (P) Ltd. in contravention of clause 10(b) of the partnership deed dated April 19, 1967, for costs and for future interest. Kishan Lal Kaira, Hans Raj Kaira, the other two brothers, Jagmohan Kaira, son of Kishan Lal Kalra, Kishan Lal & Co. and Kishan Lal Wine Merchans (P) Ltd. are the defendants in this suit. During the pendency of the suit, Sudershan Kumar Kaira died and the suit is being continued by his legal representatives. The suit was eventually transferred to this Court and consolidated with the other two suits.

(6) The three suits were consolidated and as many as 38 issues were framed. The issues framed on October 3 and 4, 1972 were later modified by an order made by this Court on March 27, 1973. By an order made by this Court on October 6, 1972, it was directed that issues No. 1, 4, 6 and 10 in suit No. 105/70, issues No. 4, 6 and 10 in suit No. 429/71 and .issues No. 30 and 31 in suit No. 35/71 be tried as preliminary issues. The preliminary issues in the three suits, as modified, are as follows :- Suit No. 105/70

1. Whether the plaintiff can proceed with the suit without making any election between the alternative pleas contended to have been raised by him in the plaint?

4. Whether the suit is barred by the provisions of Sections 14, 34, 38 and 39 of the Specific Relief Act?

6. Whether the suit is properly valued for the purposes of jurisdiction and court fee?

10. Whether the plaint dots not disclose any cause of action? Suit No. 429/71

4. Whether the suit is barred by the provisions of Sections 14, 34, 38 and 39 of the Specific Relief Act?

6. Whether the suit is properly valued for purposes of jurisdiction and court fee?

10. Whether the plaint does not disclose any cause of action? Suit No. 35/71

30. Whether the suit is barred by the provisions of Sections 14, 34, 38 and 39 of the Specific Relief Act?

31. Whether the suit is properly valued for purposes of court fees and jurisdiction?

(7) Learned counsel for the parties addressed elaborate arguments ill support of the rival contentions on these issues spread over a long period which were supplemented) by written submissions.

(8) Of these, issue No. 6 in suit No. 105/70 and suit No. 429/71 and issue No. 31 in suit No. 35/71 relate to the propriety of valuation of the suits for purposes of court fees and jurisdiction and were based on the pleas of the defendants in all these suits, that the reliefs claimed by the plaintiff had not been properly valued for purposes of court fees and jurisdiction in as much as the plaintiff had valued the reliefs for purposes of court fees under Section 7(iv)(b), (c), (d) and (f) of the Court Fees Act at a nominal figure notwithstanding the fact that the plaint in all the suits, ex facie, made out that the value of the subject matter of the suits ran into lakhs of rupees. In the course of their lengthy arguments on these three issues, a question arose as to the extent and right of the plaintiffs to value the relief for purposes of court fees under Section 7(iv) of the Court Fees Act and as to the power of the court to interfere in such valuation and the circumstances which would justify such an interference. By my order of September 25, 1973, I took the view that, having regard to the considerable conflict of judicial authority on the aforesaid question, it would be proper that the matter be referred to a larger Bench for decision. The following two questions were, thereforee, referred to the larger Bench, namely, (1) whether the court has power to interfere in the plaintiff's valuation of relief for the purposes of court fees under Section 7(iv) of the Court Fees Act,' and (2) if so, (a) when would such interference be justified and (b) what would be the criterion for the redetermination of the value The reference has since been answered by a decision of Full Bench of this Court made on July 26, 1974. The first question posed above was answered in the negative and it was held by Full Bench that Section 7(iv) of the Court Fees Act gave a right to the plaintiff to place any valuation that he liked on the relief that he seeks subject, however, 'to any rules made under Section 9 of the Suits Valuation Act' and that 'the court has no power to interfere with the plaintiff's valuation'. In view of the way the Full Bench looked at the first question, an answer to the second question was considered unnecessary. At the hearing of the reference it was understood, and was eventually made clear in the judgment of the Full Bench, that the Full Bench was only concerned with the two questions referred 'and that it would be for the trial Judge to go into the question as regards the correctness of the valuation in the three suits in the light of the said decision'. The Full Bench also left open the further question as to the applicability to the Union Territory of Delhi of the Rules made by the High Court of Judicature at Lahore under Section 9 of the Suits Valuation Act, 1887 with regard to the manner and determination of the value of certain types of suits.

(9) As the determination of issue No. 6 in Suits No. 105/70 and 429/71 is vital to the question of jurisdiction of this Court and may, if decided in favor of the defendants, involve the return of the plaints to the plaintiffs for presentation to a court of competent jurisdiction, as indeed necessitate the transfer of the third suit back to the District Court and would, in that view of the matter, obviate, as indeed disentitle, a determination of the other issues by this court, it would be reasonable and proper that this issue is taken up first for decision.

(10) The question that these identical issues raise is as to whether the suits are properly valued for purposes of jurisdiction and court fee. Although an identical plea was raised in suit No. 35/71 and led to issue No. 31 in the same terms as issue No. 6 in the two other suits, no attempt was made to assail the valuation of the relief in the said suit. The consideration would, thereforee, be confined to issue No. 6 in the two suits.

(11) By suit No. 105/70, Hans Raj Kaira, the plaintiff, seeks a declaration that the business of Kishan Lal & Co. along with its relevant liquor license was, till April 1967, a business of the Joint Hindu Family and prior to that, the business of Esplanade Bar and Restaurant, since June 3, 1946, was a business of the Joint Hindu Family and that since April 1967 the said business and the business in the name of Kishan Lal & Co.. Kishan Lal Wine Merchant and Kishan Lal Wine Merchant Pvt. Ltd. are partnership businesses of the three brothers; that in case it is found that the partnership agreement of April 19, 1967 was void, illegal or ineffective, it be declared that the said business continues to be Joint Hindu Family business. In the alternative, a declaration is sought that the business carried on in the name of Kishan Lal & Co.. Kishan Lal Wine Merchant since 1-9-56 and, prior thereto, in the name of Esplanade Bar & Restaurant since June 3, 1967, were partnership business as per various deeds of partnership culminating in the deed of April 19, 1967 and that the plaintiff has all along been a partner in the said concetns. The plaintiff seeks a further declaration that the parties arc bound by the partnership deed of April 19, 1967 and the plaintiff is entitled to participate in the business in terms of the deed. The plaintiff further seeks a perpetual injunction restraining the defendants from interfering with the right of the plaintiff to participate in the business of the concerns and to draw his dues under the terms of the deed. The plaintiff further seeks a perpetual injunction restraining the defendants from violating the terms of the deed and in particular, not to pay defendant No. 1, Kishan Lal, for himself and his son (defendant No. 3) anything in excess of a particular amount. The plaintiff also seeks true and full accounts of the business. Certain reliefs are also sought in relation to certain employees. A further injunction is sought to restrain the defendants from using the leasehold premises for any purpose other than the business of Kishan Lal & Co. and to restrain the defendants from changing the name of the business under the L2 license. A further declaration is sought that the business of Kishan Lal Wine Merchant, Kishan Lal Wine Merchant (P) Ltd. and the L-2 license in favor of Kishan Lal Wine Merchant and Kishan Lal Wine Merchant (P) Ltd. are in fact, the properties of Kishan Lal & Co. and Kishan Lal Wine Merchant and Kishan Lal Wine Merchant (P) Ltd. arc mere smoke screen behind which Kishan Lal defendant is operating with a view to exclude the plaintiff and the third brother of their rights and interest and to derive illegal gains at their expense.

(12) By suit No. 429/71, Hans Raj Kaira seeks a declaration that the L4 license has throughout been property of the Hindu Undivided Family of which the three brothers were the member-, and alternatively, the same was the property of the partnership entered into between the three brothers by various documents culminating into the deed of partnership of April 19, 1967. The plaintiff claims a further declaration that the plaintiff and the other two brothers were co-licensees of L-2 license in respect of the business Kishan Lal & Co., Wine Merchants. A declaration is also sought that certain orders passed by the excise authorities were illegal, ultra vires, arbitrary and mala fide and, thereforee, null and void. A further declaration is sought that the L-2 license issued in the name of Kishan Lal or in favor of Kishan Lal Wine Merchant (P) Ltd. in April/May 197! respectively should be deemed to be the property of the three brothers and their heirs and not the exclusive property of Kishan Lal or Kishan Lal Wine Merchant (P) Ltd. Perpetual injunction is sought against the authorities to enter the name of the plaintiff and the heirs of the third brother in the L-2 license. Further perpetual injunction is sought against Kishan Lal restraining him from interfering in the rights of the plaintiff and the heirs of the third brother lo participate in the wine business carried on under any name and under L-2 license in the premises in question until the firm was legally dissolved. A declaration is also sought with regard to the rights in the leased premises.

(13) The different reliefs sought by the plaintiff in the two suits have been described in extenso above. This is how the plaintiff has valued the suits for purposes of court fees and jurisdiction:-

'SUIT No. 105 of 1970

(1) Declaration re. Joint Hindu Family business Court fee paid . . .. . . Rs. 20.00 Jurisdictional Value . . ... Rs. 50,000.00

(2) Declaration and injunction re. Partnership deed dated 19-4-67 Jurisdictional value . .. . . Rs. 200.00 Court fee paid . . . . . . Rs. 20.00

(3) Injunction re. violation of terms Jurisdictional value . . . . . Rs. 200.00 Court fee paid . . . . . .Rs. 20.00

(4) Re. Accounts Jurisdictional value ..... Rs. 200.00 Court fee paid . - . . . .Rs. 20.00

(5) Injunction re. employees Jurisdictional value . . . . . Rs. 200.00 Court fee paid . . . . . . Rs. 20.00

(6) Injunction re. premises Jurisdictional value ..... Rs. 200.00 Court fee paid . . . . . .Rs. 20.00

(7) Injunction re. name Jurisdictional value ..... Rs. 200.00 Court fee paid - . . . . .Rs. 20.00

(8) Declaration re. Kishan Lal Wine Merchants (P) Ltd. Jurisdictional value ..... Rs. 200.00 Court fee paid - . . . . .Rs. 20.00 Under Order 7, Rule 7 Civil Procedure Code the plaintiff would be entitled to about Rs. 5,00,000.00 on taking accounts.'

SUITNo. 429/71

(1) Re. declaration about L-4 license, etc. Jurisdictional value ..... Rs. 20,000.00 Court fee (fixed). . . . . .Rs. 20.00

(2) Re. declaration about L-2 license Jurisdictional value ..... Rs. 20,000.00 Court fee (fixed). . . . . .Rs. 20.06

(3) Re. declaration about various orders, etc. Jurisdictional value ..... Rs. 20,000.00 Court fee (fixed). . . . . .Rs. 20.00

(4) Re. declaration and injunction about the L-2 license Jurisdictional value . . . . . Rs. 200.00 Court fee paid . . . . . .Rs. 20.00

(5) Re. perpetual injunction Jurisdictional value . . . . . Rs. 200.00 Court fee paid . . - . . .Rs. 20.00

(6) Re. the premises Banarsi Krishna Mansion, Chandni (Showk, Delhi Jurisdictional value . . . . .Rs. 200.60 Court fee paid . . . . . .Rs. 20.00

(7) Re. recovery of Rs. 101 Jurisdictional value . . . . .Rs. 101.00 Court fee paid. . . . . .Rs. 15.00

(14) The Court Fees Act, 1870 regulates the levy of court fees and provides for the valuation of the relief for the purpose of computation of such fees. The court fees payable on a plaint etc. may either be ad valorem fees, as provided in Schedule I to the Act, or fixed fees as provided in Schedule Ii to it. Where, having regard to the subject matter of the suit, a fixed fee is payable, valuation of the relief for purposes of court fees has no significance and is, thereforee, unnecessary. Where, however ad valoren court fee has to be paid it has an obvious relation to the valuation of the subject matter of the suit or the relief and computation of court fees payable in such cases depends on the valuation of relief for purposes of court fees. The Suits Valuation Act, 1887 prescribes the mode of valuing certain suits for the purpose of determining the jurisdiction of the courts with respect to such suits. Valuation of the suit for purposes of court fees and valuation for the purpose of jurisdiction are, thereforee, two distinct matters. While in suits for which a fixed court fee is payable valuation of the subject matter for purposes of court fee is unnecessary, valuation for purposes of jurisdiction of courts is essential in all suits. Ordinarily valuation of a suit for one purpose has no impact on the valuation for the other purpose. However, Section 8 of the Suits Valuation Act incorporates an exception when it provides that 'where any suits other than those referred to in the Court Fees Act, 1870, Section 7, paragraphs v, vi, and ix and paragraph x, clause (d), court fees are payable ad valorem under the Court Fees Act, 1870, the valuation as determinable for the computation of court fees and the value for purposes of jurisdiction shall be the same'. The effect of this provision is that in certain type of suits envisaged by the provision the value determinable for the computation of court fees is also determinative of the value for purposes of jurisdiction. In such cases the plaintiff must first value the suit for purposes of court fees and the same valuation would ensure for purposes of jurisdiction as well. Two conditions are necessary for the application of the rule incorporated in this provision. In the first instance, the suit must not fall in the excepted categories set out in the Section. Secondly, court fees on such a suit must be payable ad valorem so that even if the suit does not belong to the excluded category the Section would have no application if fixed court fees is payable on the suit under Schedule Ii of the Court Fees Act. It follows, thereforee, that suits envisaged by Section 7(iv) of the Court Fees Act which do not fall in the excluded category, would be within the mischief of the rule contained in the provision of Section 8 of the Suits Valuation Act. Thus, in terms of Section 7(iv) suits 'to enforce the right to share in any property on the ground that it is joint family property', 'to obtain a declarative decree or order where consequential relief is prayed', 'to obtain an injunction', and 'for accounts' in which relief sought can be valued by the plaintiff, such valuation would also determine the jurisdiction of the court in which the suits could be filed. Section 9 of the Suits Valuation Act, however, provides that in such suits the High Court may, with the previous sanction of the State Government, if of opinion that the subject matter of these suits does not admit of being satisfactorily valued, direct that suits of that class shall, for the purposes of Court Fees Act, 1870, and of this Act and any other enactment, for the time being in force, be treared as if their, subject matter was of such value as the High Court thinks fit to specify in this behalf. Section 9, thereforee, provides for an exception to the rule laid down in Section 8, when, on certain conditions being satisfied, it permits the High Court to lay down the manner in which the subject matter of certain suits could be valued for the twin purposes of court fees and jurisdiction. Such Rules were framed by the High Court of Judicature at Lahore which lay down the manner of determination of the value of certain types of suits. These Rules were made in the year 1942 and have since been followed in the said High Court and in the successor High Courts, the East Punjab High Court, the Punjab High Court and in Courts in Delhi even after the constitution of this Court.

(15) In suit No. 105/70 the plaintiff seeks three distinct declarations, namely, (i) declaration regarding joint Hindu family business, (ii) declaration regarding partnership deed dated April 19, 1967 and (iii) declaration regarding the status of Kishan Lal Wine Merchants (P) Ltd. Apart from these declarations the plaintiff seeks injunction regarding the partnership, an injunction regarding employees, an injunction regarding the premises in which the business was being carried on and an injunction regarding the name and style of the business. There is a separate relief regarding accounts. In relation to each of these three declarations the plaintiff has not given the valuation for purposes of court fees but has merely indicated that he has paid on each of these a court fee of Rs. 20. The jurisdictional value of these three declarations is, however, differently determined. In so far as the declaration regarding joint Hindu family business is concerned, jurisdictional value is fixed at Rs. 50,000, while the jurisdicational value in relation to the other two declarations is fixed at Rs. 200 each. In valuing the declaration regarding partnership deed the plaintiff has clubbed along with it an injunction regarding the said deed. In the case of the various injunctions and the relief of accounts the plaintiff has paid a court fee of Rs. 20 in each case and put the valuation for purposes of jurisdiction at Rs. 200 Under Order Vii, Rule 7 of the Code of Civil Procedure, the Plaintiff has added a footnote to the para regarding valuation that the plaintiff would be entitled to about Rs. 50,000 on taking accounts.

(16) In suit No. 429/71, plaintiff seeks four different declarations. One of these relates to L-4 license. The other relates to L-2 license. The third relates to the various orders made by the Excise authorities' while the fourth is described as a declaration and injunction about the L-2 license. In addition, the plaintiff claims perpetual injunction regarding the premises and recovery of Rs. 101. The declarations in respect of L-4 and L-2 licenses and the Excise orders are valued separately for purposes of jurisdiction at Rs. 20;000 each. The relief is not valued separately in any of these cases for purposes of court fees but it is indicated that a fixed court fee of Rs. 20 has been paid on each of these reliefs. In the case of the fourth declaration and injunction about L-2 license the value for purposes of jurisdiction is determined at Rs. 200 and a court fee of Rs. 20 has been paid. The relief of perpetual injunction and the relief regarding premises are separately valued for purposes of court fees and jurisdiction at Rs. 200 and a court fee of Rs. 20 is paid on each of these. The relief of recovery is valued for purposes of court fees and jurisdiction at Rs. 101 on which a court fee of Rs. 15 has been paid.

(17) It is obvious that neither of the two suits could be said to belong to the category of suits which are excluded from the operation of Section 8 of the Suits Valuation Act. The provision of Section 8 would, thereforee, be applicable to both the suits provided court fees in respect of the reliefs claimed in these is payable ad valorem under the Court Fees Act, 1870. It is also not in dispute that in relation to the reliefs of accounts, injunction and recovery of money court fees has to be paid ad valorem under the appropriate sub-clauses of clause (iv) of Section 7 of the Court Fees Act. It follows, thereforee, that the value of the suits for purposes of jurisdiction in relation to these reliefs has to be the same as has been determined for the purposes of court fees, unless 'there is anything in the Rules of the Lahore High Court, if applicable, which provide to the contrary. It was not disputed that if ad valorem court fees was payable and the Rules framed by the Lahore High Court did not come to the aid of the plaintiff the jurisdictional value of the suits would fall short of the pecuniary jurisdiction of this Court. The suits were, however, sought to be saved on the ground that the reliefs of declarations were for declarations implicate and the other reliefs were not consequential but substantive reliefs in themselves with the result that the relief of declaration implicate would attract fixed court fees under Schedule Ii and take the suits outside the mischief of Section 8 of the Suits Valuation Act so that the plaintiff was free to value the suits for purposes of jurisdiction and the valuation for such a purpose need not follow the valuation, if any, for the other purpose. Alternatively, they were sought to be justified on the ground^ that in view of the Rules framed by the High Court of Judicature at Lahore under Section 9 of the Suits Valuation Act the two computations need not be co-extensive and different valuations could be placed on the suits for purposes of court fees and jurisdiction in accordance with the. aforesaid Rules.

(18) The first question that must, thereforee, be determined is whether the two suits could be said to be for declarations implicate followed by substantive reliefs by way of accounts and injunction and not for declaration with consequential relief.

(19) Section 34 of tht Specific Relief Act provides that any person entitled to any legal character or to any right as to any property may institute a suit and the court may in its discretion make therein a declaraion that he is so entitled and 'the plaintiff need not in such a suit ask for any further relief'. Section 34 is, however, not exhaustive of the circumstances in which a bare declaratory decree may be made by a Court and Court in India have been held, by the Supreme Court, to have the power to pass a bare declaratory decree even in cases which do not fall within the terms of the Section (a). The proviso to the Section bars the Court from making any such declaration 'where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so'. A bare declaration can, thereforee, be granted by Court under section 34 provided the plaintiff is unable to seek further relief than a mere declaration of title. As has been noticed above, a suit for a mere declaration and a suit for a declaration with a consequential relief are treated differently by the Court Fees Act in that the court fees in the former is a fixed court fee under Article 17 of Schedule Ii of the Court Fees Act, while court fees payable on the latter depend on the value that the plaintiff puts on the relief that he claims under section 7(iv)(c) of the Act. There has, thereforee, been a considerable judicial controversy in India as to when could a suit be said to be one for a bare declaration or for a declaration with consequential relief. The controversy has its genesis both in the impact that it has on the court fees payable, as indeed the jurisdiction of the court, as well as its impact on the bar provided in Section 34 of the specific Relief Act.

(20) It is fairly well settled that it is not the form of the plaint or the manner in which the relief is worded in it, but the substance of it, which is determinative of its real nature and character and in determining whether a suit is a suit for a mere declaration or for a declaraton with consequential relief Court must not be carried away by the form of the plaint but must look to the substance of it (1). It is equally well settled that the question whether the suit would be governed by Section 7(iv)(c) or Article 17 of Schedule Ii of the Court Fees Act must be determined not on what relief the plaintiff should ask to be able to succeed but according to the relief actually claimed in the plaint (2). It is equally well settled that the question whether a suit comes within the terms of Section 34 of the Specific Relief Act or not will have no impact on the question of valuation of the suit for the purpose of court fees but must be determined on the basis of what the plaintiff actually seeks and not on the basis of what he may be entitled to sue for (3). In case the suit is for a declaration implicate it would be necessary for the Court to consider whether a consequential relief is implicit in the declaration. If it is, the provisions of Section 7(iv)(c) of the Court Fees Act would be attracted (4). If on the whole and in substance a suit appears to ask for some relief other than or in addition to a mere declaration the suit must be held not to be one for a bare declaration even though the plaint may be cast in a declaratory form (5). It is, however, open to the Court, in considering the question, to take into account the maintainability or otherwise of a suit for a bare declaration (6). The consequential relief must be such that it will constitute further relief within the meaning of Section 34 of the Specific Relief Act (7). It must be a relief to which the plaintiff would not be entitled unless a certain title was established and unless the plaintiff would necessarily be entitled to such relief on such title being established (8). A relief is consequential to a declaration if it follows on such declaration and depends on it (9). What ensues or follows must have a necessary connection with the cause. Cause and consequence are co-relative terms, one implying the other. What the courts must, thereforee, see is whether the relief, other than the declaratory decree, follows as a natural consequence from the declaration or in other words flows from it (10). But the mere fact that a certain relief flows from the right declared will not by its own force make it consequential relief unless it is asked for as incidental to the declaration (II).

(21) What then is the nature of the various declarations and the other reliefs sought by the plaintiff in the two suits and in what manner can they be said to be related to each other

(22) Suit No. 105/70, which is described as a suit for 'declaration, accounts and injunction, etc.', is grounded on the allegations that on the death of Ishwar Dass, the father of the brothers, on June 2, 1946, the business of M/s. Esplanade Bar & Restaurant, with L4 license for the sale of liquor, which was until then being carried on by him in the name Ishwar Dass Kaira and Sons, 'became their joint family business'; that until March 1947 defendant Krishan Lal continued the business 'as a trustee for the benefit of' th'e said joint family consisting of the three brothers, that in March 1947 a partnership deed was executed between the brothers by which the three brothers became partners in equal shares in the said business but the business nevertheless 'continued to be a joint Hindu family concern'; that in September 1948 the business was expanded to include the United Coffee House ; that in 1950 the plaintiff took L-14 license for and on behalf of the joint family but to comply with the excise requirements he withdrew from Esplanade Bar and Restaurant and the other two brothers withdrew their names from the United Coffee House and ostensible deeds of dissolution and fresh partnership were entered into although all the concerns 'all the same continued to be joint family business as before' and Krishan Lal deft. continued 'as a managing proprietor of M/s. Esplanade Bar and Restaurant for and on behalf of himself' and the other two brothers; that a number of changes were made subsequently in the name and style of the business but they were all ostensible and the business throughout continued to be the business of the joint Hindu family; that subsequent additions to the business, infer alia, by acquisition of immovable property, in whatever name, were also intended to be part of the aforesaid business even though the additions were made and the properties were purchased in different names; that a number of partnership deeds were entered into between the parties but the real nature of the business relationship did not undergo and change; that in 1967 differences arose between the brothers and were amicably settled and the various businesses and properties were allocated between the brothers on the basis that they had hitherto been jointly held by them in equal shares ; that as a sequel to the settlement a partnership deed dated April 19, 1967 was entered into between the parties providing for the share of the three brothers, the manner in which the firm would be dissolved and the terms and conditions on which the business would be carried on; that in spite of the aforesaid settlement and the deed of partnership, Krishan Lal defendant did not permit the plaintiff and the third brother to participate in the management of the affairs of Krishan Lal & Co., one of the additional names in which the business was continued, and got the names of the other two brothers surreptitiously removed from the L-2 license; that on the removal of the names of the two brothers from 12 license Krishan Lal, defendant No. 1, has appropriated to himself' all the assets of Krishan Lal & Co., which are jointly owned by him and the other two brothers and 'has ousted the plaintiff from the business and assets of 'the concern', has changed the name of Krishan Lal & Co. to Krishan Lal Wine Merchant, has started, in a major portion of the business premises held in the joint tenancy of the brothers, an exclusive business of his own styled as Krishan Lal Enterprises, was dissipating the funds and assets of Krishanl Lal & Co.. has inducted into the business his eldest son, defendant No. 3, and his minor son; that Krishan Lal defendant was preparing accounts by suppressing sales, underwriting sales, inflating expanses, etc. and was withdrawing large sums of money from the concern and misappropriating the same.

(23) It is further alleged that the plaintiff is entitled to prevent the usurpation of his rights in the said firms and profits of the business, now being carried on as Krishan Lal Wine Merchants by defendant No. 1, with the assets and funds of the three brothers; that the plaintiff has not been given his share of profits of the business being carried on under the name and style of Krishan Lal & Co. and defendant No. 1 who owed large sums of money to the firms, was utilising the funds without let or hindrance; and that the plaintiff cannot be deprived of his right to participate in the business and is entitled to prevent wastage, mismanagement and frittering away of funds and access to the books of accounts. In the alternative, it is claimed that the defendants would be deemed 'to be holding all the assets for the benefit of all the parties in accordance with their share. It is claimed that the entire business is either the property of a coparcenary, of which the three brothers are members, or in the alternative, if it is held that the business belonged to a partnership in terms of the various deeds of partnership culminating in the deed of partnership of April 19, 1967, it be declared that the various deeds of partnership are binding upon the parties. The plaintiff also claims a right to participate in the business irrespective of whether it belongs to a joint Hindu family or to a partnership and contends that the exclusion of the plaintiff from the said business, including the business being carried on in the name of Kishan Lal Wine Merchants (P) Ltd., was illegal, unjust and improper. A plea is also made that the defendants are liable to render true and proper accounts of the business of Kishan Lal & Co. from July 1, 1966 to date. In the alternative, it is claimed that in case it is held that the business was not a joint Hindu family business but was a partnership business, governed by the various deeds of partnership, it be declared that the plaintiff is entitled to his share of the profits in terms of the deeds of partnership of July 1, 1966 and April 19, 1967. It is further claimed that in case it is held that the deed of April 19, 1967 is not enforceable the plaintiff be held entitled in the character in relation to the property as obtained before the said deed was entered into. The plaintiff further claims that defendant No. 1 and 3 are responsible for damages in respect of losses that may have been sustained on account of mismanagement misconduct and misdeeds of the said defendants as also for the gains and profits 'that they have made in their position as trustees. It is further claimed that the various orders and actions of the authorities such as the determination of the license, dismissal of appeal by the Excise Commissioner and grant of a fresh license by the Lt. Governor were wholly arbitrary, illegal, void and without jurisdiction and do not bind the plaintiff and the defendants are not entitled to take advantage of them. It is further claimed that the 12 license which stood in the name of Kishan Lal Wine Merchant, and at present in the name of Kishan Lal Wine Merchant (P) Ltd. was the property in which the plaintiff and the third brother had the same interest as before. A plea is also made that the liablity of Kishan Lal Wine Merchant (P) Ltd. would be coextensive with that of Krishan Lal & Co., Kishan Lal Enterprises and Kishan Lal Wine Merchant. In para 46 of the plaint the plaintiff seeks five declarations and reliefs of injunction accounts, etc. which have been already noticed.

(24) Suit No. 429/71 seeks the relief of declaration, injunction, etc. This suit is grounded on the allegations that the business in the name of Esplanade Bar & Restaurant was started in 1939 by the father of the plaintiff; that it was a joint Hindu family business of which the father and the three brothers were members, the father acting as the Karta; that the business was run under L4 liquor license; that on the death of the father the business devolved on the three sons, including the liquor license which continued to remain the property of the Hindu undivided family as before, which was managed by Kishan Lal defendant; that on June 7, 1946 Kishan Lal applied with the concurrence of the plaintiff and the third brother for the continuance of the L4 license as the legal representatives of the deceased father and the license was accordingly continued for the years 1946-47 and thereafter from year to year in the name of Esplanade Bar & Restaurant as before; that on March 14, 1947 a deed of partnership relating to the said business was executed between the three brothers and became effective with effect from June 3, 1946, the day next following the date of the death of the father; that in 1950 the plaintiff took the country liquor license for and on behalf of the joint family and withdrew from the Esplanade Bar & Restaurant, the other two brothers simultaneously withdrawing from the partnership in the United Coffee House; that in August 1956 the L4 license was approved to be converted into an L2 license in favor of Esplanade Bar & Restaurant but on the application of Kishan Lal defendant the license was issued in the name of Kishan Lal son of Ishwar Dass of M/s. Esplanade, the words Bar & Restaurant having been dropped due to legal requirements; that the stocks, assets, outstandings and liabilities of Explanade Bar & Restaurant were left as they were and the business remained a continuing business as before; that due to the change in the circumstances a fresh deed of partnership was executed on November 7, 1956 between Kishan Lal and the third brother and the name and style was changed to Kishan Lal & Co.; that in March 1958 Kishan Lal & Co. intimated the Excise authorities that the business of Esplanade Bar & Restaurant had been closed and the business of L2 license was being carried on in the name of Kishan Lal & Co. and made a statement that the partners of Kishan Lal & Co. were the same as in the Esplanade Bar & Restaurant and are the natural successors of the old business; that it was cognised by the Excise authorities that the business of Kishan Lal & Co. was being carried on in partnership between Kishan Lal, the plaintiff and the third brother and they were the co-licenses in respect of the L-2 license; that in June 1966 the names of the plaintiff and a son of Kishan Lal were added to the license and a fresh partnership deed dated July 1, 1966 was executed between the parties; that in 1966 it transpired that Kishan Lal had misappropriated and diverted to his own use large sums of money belonging to the partnership by various manipulations; that in April 1967 the differences between the three brothers were amicably resolved and all assets which stood in the names of the various brothers jointly or individually were pooled together and redistributed and a number of documents were executed, including a deed of partnership dated April 19, 1967; that until then all the trades and businesses being carried on and held by or in the name of one or more of the brothers were, in fact, the properties of the three brothers as members of the Hindu undivided family; that in terms of the aforesaid deed of partnership, Kishan Lal was to pay large sums of money to the partnership; and that when called upon to honour the aforesaid commitment Kishan Lal decided to oust the other two brothers by all means including an attempt to deprive the other brothers of the right or interest in the L2 liquor license and to claim that the said license was his individual property; and that on an adverse decision by the Excise Commissioner in that behalf the plaintiff filed a writ petition bearing C.W.P. No. 191/68 in this Court challenging the validity of the aforesaid order; that the petition succeeded and the order was quashed; that in spite of the aforesaid direction the names of the plaintiff and the third brother were not reinstated on which the plaintiff filed another writ petition in which a 14 HCD/76-6 drection was again made that the names of the two brothers would for all purposes be deemed to have been included in the L2 license till the same were deleted in accordance with law; that protracted proceedings in the Excise authorities ensued but meanwhile the license was determined for non-renewal because Kishan Lal withdrew the application made for renewal of the license and managed to obtain an L2 license in the name of Kishan Lal Wine Merchants (P) Ltd. constituted by Kishan Lal and his nominees. The plaintiff contends that the various orders issued by the Excise authorities making changes in the L2 license culminating in the issue of a fresh license in the name of Kishan Lal Wine Merchants (P) Ltd. are illegal, ultra virus and mala fide and that the original L2 license issued in lieu of the L4 license in September 1956 still subsisted and remained operative and that the plaintiff and the heirs of the third brother were co-licenses wih Kishan Lal defendant having right, title and interest in the stocks, furniture, fixtures, premises etc. as before as the property of the partnership in terms of the deed of partnership of April 19, 1967. It is further claimed that by the various orders, proceedings and devices the plaintiff and the third brother had been kept out of the business of the license and the various authorities and Kishan Lal defendant were continuing to cause irreparable hardship, harassment and injury to them and the authorities had acted in an arbitrary, illegal and mala fide manner with a view to secure pecuniary advantage for Kishan Lal defendant at the cost of the plaintiff and the third brother. It is claimed 'that the plaintiff has suffered loss to the tune of lakhs of rupees on account of wrongful actions of the authorities and Kishan Lal defendant. It is alleged that the plaintiff has been ousted from the business and his name has been struck off from L2 license, he has not been able to derive benefits as partner of the firms but claims a token damages of Rs. 101. Para 60 of the plaint contains the reliefs sought by the plaintiff, which have already been noticed above.

(25) A close examination of the two plaints leaves no manner of doubt that the basic hypothesis of the plaintiff in the two suits is as to the nature of the title of the plaintiff to or interest of the plaintiff in, as indeed of the third brother, the business and the legal character that the plaintiff claims both for himself and the third brother in relation to the businesses being carried on the various names, apparently under the control of defendant Kishan Lal, and the contention is that, irrespective of the names in which the businesses were being carried on or the person in whose control or under whose supervision the businesses were being carried on, they have throughout been either the business belonging to a joint Hindu family, of which the three brothers were members, or to a partnership, consisting of either the three brothers or later the son of Kishan Lal defendant in addition to the three brothers. The sams legal character is claimed in favor of the legal represenatives of the third brother after his death. It is also obvious from the reading of the two plaints itself that defendant Kishan Lal and his son are interested in denying the legal character of the plaintiff, the third brother and, after his death, of the legal representatives of the third brother, in relation to the various businesses, which were either carried on in the past or were now being carried on. The two suits are, thereforee, intended to obtain declarations in relation to the nature of the aforesaid businesses, their genesis and the right, title and interest of the plaintiff and the third brother in the aforesaid businesses, including the premises in which the business is carried on, as indeed the benefit of the various liquor licenses that were issued from time to time in different names. If the plaintiff fails in establishing either of the two hypothesis, that is, the Hindu Undivided Family or partnership character of the properties, assets, goodwill, etc., the numerous other reliefs 'that the plaintiff claims, such as, a restraint against ouster, restraint against prevention of participation, restraint with regard to disbursements, premises, employees, accounts, etc. would have no independent legs to stand on. It is also obvious that unless the plaintiff succeeds in obtaining the various declarations sought by him, ground is not prepared for the plaintiff to seek any other relief and the reliefs other than the declarations are related to the declarations as cause and effect in such a way that as soon as the declarations are made the plaintiff not only becomes entitled to the other reliefs but the other reliefs must necessarily follow the declarations. If, on the other hand, the declarations that the plaintiff seeks with regard to the nature of the properties and the plaintiff's relationship to it fall none of the, other reliefs sought by the plaintiff can possibly survive. Both the suits are clearly, thereforee, suits for declarations with consequential reliefs and could not, thereforee, on a proper reading of the plaints, be termed as suits for bare declarations in which the other reliefs have no relation to the declarations and are of substantive or independent character standing by their own force.

(26) The contention of the plaintiff that the various reliefs, other than the reliefs of declaratory nature, were substantive reliefs founded in the deed of partnership of April 19, 1967 were not and could not be consequential to any declarations because they were not dependent on any such declaration is not easy of acceptance. It is true that some of these reliefs could be. justified with reference to the deed of partnership but the contention ignores an important element in that the relief would eventually depend on the legal character that the plaintiff claims in relation to the business and its assets. If the declaration in relation to the nature of the business and in relation to the right, title and interest of the plaintiff in it, arising out of the deeds of partnership or otherwise, is denied to the plaintiff, the so-called other substantive reliefs cannot possibly survive. All these reliefs have their genesis in the basic contention of the plaintiff as to the nature of the various businesses, their assets, etc. and as to the right, title and interest of the plaintiff in the said businesses.

(27) If that be the true position there is no escape from the conclusion that the suits could not have been valued for purposes of jurisdiction on the basis of the value put on the declarations. The suits being for declarations with consequential relief they had to be valued for purposes of court fees and jurisdiction on the basis of the valuation that the plaintiff has put on the reliefs, other than the declarations. That being so, even if the valuation of all the other reliefs, on the plaintiff's own computation, are added up they do not come up to the minimum pecuniary jurisdiction of this Court.

(28) A contention was raised on behalf of the plaintiff that even if the suits were to be governed by Section 7(iv)(c) of the Court Fees Act for the purposes of valuation, the value for the purpose of court fees need not be the value for purposes of jurisdiction because Rules had been framed under Section 9 of the Suits Valuation Act by the High Court of judicature at Lahore, which were applicable to the present suits and which permitted in certain cases a different valuation being made for purposes of court fees and jurisdiction. An attempt was made on behalf of the defendants to meet this contention with the assertion that these Rules were not applicable to Delhi and that the valuation for purposes of jurisdiction must, thereforee, follow the valuation put on the reliefs for purposes of court fees in terms of Section 8 of the Suits Valuation Act. It is, however, unnecessary to consider this question because even if it is assumed that the Punjab Rules come to the aid of the plaintiff and permit the plaintiff to put a different valuation for the two purposes it is of no avail because the various reliefs sought by the plaintiff are beyond the scope of those Rules and even if the plaintiff is permitted to avail of those Rules the suits would still fall short of the pecuniary jurisdiction of this Court. The only possible way in which the plaintiff could keep the suits within the jurisdiction of this Court was if the various declarations sought by the plaintiff were treated as declarations simplicitor, a plea that has already been turned down. The suits are, thereforee, liable to be returned to the plaintiff for presentation to a Court of competent jurisdiction.

(29) In the course of arguments a faint suggestion was made on behalf of the plaintiff on a number of occasions that even if the valuation of the plaints fell short of the pecuniary jurisdiction of this Court the plaintiff could be allowed leave to amend the valuation so as to bring the suits within jurisdiction and alternatively, by appropriate directions the suits, though beyond jurisdiction, could nevertheless be transferred to this Court for trial as was done in the case of the third suit. While this Court has full sympathy with the plaintiff, neither of these contentions can possibly be sustained. No amendment can be allowed which may have the effect of bringing within jurisdiction a suit which is beyond a court's pecuniary jurisdiction. There can be no question of a transfer of proceedings unless the proceedings are filed and are pending in a Court of proper jurisdiction. An order of transfer could, unfortunately for the plaintiff, be made only if the plaint has been properly presented to a court of competent jurisdiction. That has yet to happen.

(30) In the way I have looked at the question with regard to valuation of the suits and have consequently held that this Court has no jurisdiction to entertain the suits and the plaints must, thereforee, be returned to the plaintiff for presentation to a proper court, it would be neither necessary nor proper to express any opinion on the other preliminary issues for a variety of reasons. In the first instance, in view of the finding that this Court has no jurisdiction to entertain the suits, any finding on the other issues would be equally without jurisdiction. Secondly, any such finding is bound to prejudice a fair trial of the preliminary issues by the court which would be competent to entertain the suits.

(31) In the result, I am constrained to direct that the plaints in the two suits be returned to the plaintiff for being filed in a court of competent jurisdiction. As the third suit was transferred to this court because of the pendency of the two suits, this suit would be sent back to the learned Senior Subordinate Judge to be assigned to the Court to which the other suits are assigned.

(32) In the peculiar circumstances there would be no costs.


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