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The Firm of Fakirchand Makandas Vs. Shri Jagadguru Shankaracharya Abhinaya Sachihidavand Tirth Maharaj and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 500 of 1967
Judge
Reported inAIR1970Guj145; (1970)0GLR686
ActsBombay Court Fees Act, 1959 - Sections 6; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 7, Rule 11
AppellantThe Firm of Fakirchand Makandas
RespondentShri Jagadguru Shankaracharya Abhinaya Sachihidavand Tirth Maharaj and ors.
Appellant Advocate V.P. Shah, Adv. for; N.R. Oza, Adv.
Respondent Advocate S.N. Shelat, Asst. Govt. Pleader
Cases ReferredS.B.G.O. & R.P. Mills v. Occhavial
Excerpt:
.....fell under provisions of section 6 (iv) (d) and demanded from plaintiff to pay additional court-fees - revision application filed against order - valuation of suit should be made on basis of averments and allegations made in plaint - trial court's order holding that suit falls under provisions of section 6 (iv) (d) and demanding additional court-fees set aside - matter to go back to trial court for further proceedings in suit - revision application allowed. - - bhagwant gunaji 49 bom lr 72 :(air 1947 bom 259 fb). in 47 bom lr 350 :(air 1945 bom 336), the high court has held that where a court directs the plaintiff to pay additional court-fees, such a decision, in effect, results in failure to exercise jurisdiction because on the plaintiff's refusal to pay the court-fees, the..........that therefore, no additional court-fee was legally due from him.2. at the hearing of this civil revision application, mr. s. n. shelat, the learned advocate appearing for the contesting opponents nos. 1, 2 and 4 contended that no revision application lies under section 115 of the civil procedure code. his argument is that the decision about the sufficiency or otherwise is a decision within the jurisdiction of the trial court to deal with the suit and therefore, under the provisions of section 115 of the civil procedure code, no civil revision application lies to this court.3. coming to the merits of the dispute, it appears that the plaintiff has asked for the main relief of a declaration that he is entitled to ask for specific performance of the contract and for the further reliefs by.....
Judgment:

1. This revision application is filed by the original plaintiff against the order passed by the learned Civil Judge (Senior Division) at Surat in Special Civil Suit NO. 39 of 1966, whether by the learned trial Judge held that the suit of the plaintiff fell under the provisions of Section 6(iv)(d) of the Bombay Court-Fees Act 1959 (hereinafter referred to as 'the Act') and accordingly called upon the plaintiff to pay additional court-fees amounting to Rs. 810/-. He directed the plaintiff to pay this amount on or before 5th September 1967. The plaintiff has come in revision contending that his suit was rightly valued by him for the purposes of court-fees as it fell under the provisions of Section 6(iv)(j) of the Act and that therefore, no additional court-fee was legally due from him.

2. At the hearing of this Civil Revision Application, Mr. S. N. Shelat, the learned Advocate appearing for the contesting opponents Nos. 1, 2 and 4 contended that no revision application lies under Section 115 of the Civil Procedure Code. His argument is that the decision about the sufficiency or otherwise is a decision within the jurisdiction of the trial Court to deal with the suit and therefore, under the provisions of Section 115 of the Civil Procedure Code, no Civil Revision Application lies to this Court.

3. Coming to the merits of the dispute, it appears that the plaintiff has asked for the main relief of a declaration that he is entitled to ask for specific performance of the contract and for the further reliefs by way of mandatory injunctions against defendants Nos. 1 and 2. In the first alternative relief the plaintiff claims an amount of Rs. 5000/- from defendants Nos. 1 and 2 and asks for certain damages as determined by the Court. In the second alternative relief he requests the Court to rescind the contract between him and defendants Nos. 1 and 2 and to order defendants Nos. 1 and 2 to pay to the plaintiff an amount of Rs. 5000/- and whatever damages are found appropriate by the Court. The plaintiff has paid court-fees at the rate of Rs. 30/- per each of reliefs for declaration and each of three mandatory injunctions. In respect of the declaration and three mandatory injunctions, the plaintiff has paid Rs. 120/- in all; while in respect of the relief for the recovery of Rs. 5000/- he paid a court-fee of Rs. 350/-. In all, therefore, the plaintiff paid a total court-fee of Rs. 470/-. For the purpose of jurisdiction the plaintiff valued the suit at Rs. 43,662/-.

4. The defendants raised a contention that the plaintiff has not valued his reliefs properly. The case of the defendants was that the suit for declaration and mandatory injunctions ought to have been valued under Section 6(iv)(d) of the Act. The learned trial Judge accepted his contention of the defendants and on the basis that the suit falls under Section 6(iv)(d) of the Act, he came to the conclusion that the plaintiff should pay a total court-fee of Rs. 1160/-. Deducting Rs. 350/- that the plaintiff has already paid, the trial Court directed him to pay an additional amount of Rs. 310/-.

5. The plaintiff's contention before me is that the suit does not fall under Section 6(iv)(d) but it falls under Section 6(iv)(j) of the Act. It was conceded by Mr. S. N. Shelat on behalf of the contesting opponents that if the suit does not fall under Section 6(iv)(d), the valuation made by the plaintiff would be proper except for the amount claimed by way of damages. Therefore, the only question which requires consideration is: Whether the suit is governed by S. 6(iv)(d) of the Act or not? Section 6(iv)(d) deals with a declaration of a right of ownership or some other right in immovable property. The learned trial Judge has held that in order to make himself entitled to a specific performance the plaintiff will have to prove the ownership of the defendants Nos. 1 and 2 in respect of the suit property. He, therefore came to the conclusion that, in effect and substances, the plaintiff desires a declaration about the ownership of the defendants Nos. 1 and 2 in the suit property and therefore according to him the provisions of Section 6(iv)(d) are applicable to the suit. In my opinion, that is not the correct appreciation of the relief claimed by the plaintiff. The plaintiff does not say, anywhere in the plaint, that the defendants Nos. 1 and 2 are not the owners of the property. He proceeds on the basis that they are the owners of the suit property and that the contract is binding upon them and he claims a declaration that he is entitled to get is specifically performed. It may be that on the contention raised by defendants Nos. 1 and 2 in their written statement a question whether the defendants Nos. 1 and 2 are the owners of the property or not, will arise for decision. But the valuation of the suit cannot be made on the basis of the contentions raised in the written statement of the defendants. The valuation of the suit should be made on the basis of the averments and allegations made in the plaint itself. Therefore, in my view, the learned trial Judge was wrong in holding that in order to make himself entitled to a declaration about specific performance, the plaintiff was in effect and substance asking for a decision about the ownership of the defendants Nos. 1 and 2 in respect of the suit property.

6. The plaintiff claims a declaration that he is entitled to specific performance of the agreement of sale. Now, an agreement of sale does not by itself create any interest in the immovable property. The declaration therefore, asked by the plaintiff is not of that kind which would fall within the provisions of Section 6(iv)(d) of the Act. In my opinion, therefore, the learned trial Judge was in error in coming to this conclusion. The plaintiff's contention, therefore, that the suit is governed by Section 6(iv)(j) of the Act should be accepted.

7. A small point seems to have escaped the notice of the learned trial Judge. In the two alternative reliefs that the plaintiff has claimed, he has claimed for a return of Rs. 5000/-.; and he has, in addition, claimed damages. He has not specified the amount of damages. He has left it to be determined by the Court. That it to be determined by the Court. That is not proper. The plaintiff must state the amount of damages that he seeks to recover and he must pay court-fees on that amount of damages. The plaintiff will, therefore, be called upon by the trial Court, when the matter goes back to it, to state the amount of damages which he claims from the defendants in each of the two alternative reliefs and he should be asked to pay court-fees on that amount of damages. It is, however, open to the plaintiff to say to the Court that he does not claim any amount by way of damages.

8. Miss Shah also pointed out that under Section 6(iv)(j) the plaintiff would be liable to pay an amount of Rs. 30/- only for the main relief, that is, the relief for a declaration and the three mandatory injunctions. She further pointed out that the plaintiff has already paid Rs. 120/- instead of Rs. 30/-. She means to convey to me that Rs. 90/- are paid in excess in court-fees. The plaintiff is at liberty to take this point in the trial Court. On merits, therefore, the order passed by the trial Court does not appear to be correct and requires to be set aside.

9. As regards the preliminary objection raised by Mr. Shelat, the point does not appear to be free from difficulty, Miss v. P. Shah pointed out to me a decision of the Division Bench in Mahadeo Gopal v. Hari Waman, 47 Bom LR 350 : (AIR 1945 Bom 336), and a decision of the Full Bench in Shankar Maruti v. Bhagwant Gunaji 49 Bom LR 72 : (AIR 1947 Bom 259 FB). In 47 Bom LR 350 : (AIR 1945 Bom 336), the High Court has held that where a Court directs the plaintiff to pay additional Court-fees, such a decision, in effect, results in failure to exercise jurisdiction because on the plaintiff's refusal to pay the court-fees, the plaint would be rejected y the Court under Order 7 Rule 11 of the C.P.Code. If the decision as to the payment of court-fees is wrong and the trial Court has in fact jurisdiction to proceed with the suit, then by making such an erroneous order, the trial Court would be refusing to exercise jurisdiction, when in fact it has the jurisdiction. It is on this basis that the High Court has held in the case of Mahadeo Gopal, 47 Bom LR 350 : (AIR 1945 Bom 336) (supra) that such a decision is one that is revisable under Section 115 of the Civil Procedure Code. This decision has been followed in the later Full Bench decision stated above. The facts in the present case are so far as material, identical with the facts in the case of Mahadeo Gopal 47 Bom LR 350 : (AIR 1945 Bom 336) and therefore, that decision is binding on me.

10. Mr. Shelat, however, sought to rely upon the decisions of the Supreme Court and on the basis of the said decisions he argued before me that the Supreme Court has impliedly overruled these Bombay decisions. The first decision that he relied upon was in Rathnavarmaraja v. Smt. Vimala, AIR 1961 SC 1209. In my opinion that case does not deal with the point that arises for decision in the instant case. The point that arose there was, whether a defendant can be said to be aggrieved by a decision on a question of court-fees that should be paid by the plaintiff. The view of the Supreme Court is that ordinarily the decision on the question of court-fees is a decision which affects either the plaintiff or the State, but it does not affect the defendant and therefore, the defendant is not aggrieved by the decision and therefore, he cannot maintain a revision application. The Supreme Court, however, held that when the question of jurisdiction is involved in a decision on a question of court-fees, then the defendant can be said to be aggrieved and he can maintain a revision application. That is not the position in the instant case and therefore, this decision does not apply to the present case. The other decision on which Mr. Shelat relied is Pandurang v. Maruti : [1966]1SCR102 . In that case the Supreme Court was considering a case under the B.A.D.R. Act. The question that arose in that case for decision was: whether the debt for the adjustment of which the application was filed, was subsisting or not. In order to decide this question a certain decree was required to be construed. The lower Court constructed it as extinguishing the debt. It was against that order that the revision application was filed. Therein, the Supreme Court considered the ambit and scope of the revisional powers of the High Court under Section 115 of the Civil Procedure Code. The material observations in that case are as follows:-

'While exercising its jurisdiction under S. 115, it is not competent to the High Court to correct errors of fact, however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.'

The Supreme Court, thereafter, goes on to illustrate certain errors of law which have relation to the jurisdiction of the court by stating that the errors can be regarding the point of limitation or the point about the res judicata. Having illustrated those errors the Supreme Court further goes on to say:

'But an erroneous decision on a question of law reached by the Subordinate Court which has no relation to questions of jurisdiction of that Court cannot be corrected by the High court under S. 115.' Again in paragraph 12 on page 156, the Supreme Court has further observed:- 'The effect of these two decisions clearly is that distinction must be drawn between the errors committed by subordinate Courts in deciding questions of law which have relation to, or are connected with, questions of jurisdiction of the said Court, and errors of law which have no such relation or connection.'

Mr. Shelat argued that questions of law which have relation to the jurisdiction are questions on the decision of which the necessary consequence is that either the jurisdiction is acquired by the Court or it is ousted. Mr. Shelat submitted that the present case is not a case of that kind. He stated that it was within the jurisdiction of the learned trial Judge to decide a question as to what court-fees should be paid by the plaintiff on the plaint and whether he decide that question rightly or wrongly, it is still a question which he has decided in exercise of his jurisdiction. By this decision, the only necessary consequences is that the plaintiff is required to pay additional amount of court-fees. It is not a necessary consequence of this decision that trial judge would either acquire jurisdiction or lose jurisdiction. Therefore, he stated that this is not a question of law which concerns or is related to, the jurisdiction of the Court. He stated that the Court will refuse to exercise jurisdiction by rejecting the plaint only when the plaintiff hereafter refuses to pay the court-fees demanded by the Court. In fact such a distinction has been drawn by a Single Judge of the Madras High Court in Desikar v. Gopala Chettiar, AIR 1939 Mad 380. In my opinion, the Observations made by the Supreme Court are not inconsistent with the decisions of the Bombay High Court in the cases referred to above. It is true that the decision on the question of payment of court-fees does not, by itself, as a necessary consequence, either oust the jurisdiction of Court or given jurisdiction to it. But since the plaintiff has filed this revision application, it is reasonable to hold that the plaintiff is not willing to pay any additional court-fee on the ground that the same is not according to him legally due from him. If he does not pay, the Court would be bound to reject his plaint under Order 7, Rule 11 of the Civil Procedure Code. If this order demanding additional court-fees is not correct, then the Court would, on account of its wrong decision, refuse to exercise jurisdiction vested in it by law. In this view, the demand for the additional court-fees made by the trial Court on the plaintiff is a question which relates to the jurisdiction of the Court. It is certainly connected with the question of the jurisdiction of the Court. In my opinion, it cannot be said that the observations made by the Supreme Court in the case just cited above as regards the ambit and scope of Section 115 of the C.P. Code are inconsistent with the view expressed by the Bombay High Court in the above cases. It is, therefore, difficult for me to hold that the decisions of the Bombay High Court are impliedly overruled by the Supreme Court. Since I am bound by the decision of the Bombay High Court, I must hold that a revision application under Section 115 of the Civil Procedure Code can be maintained in the circumstances of the instant case. The preliminary objection, therefore about the maintainability of this revision application raised by Mr. Shelat, is not tenable.

11. Mr. Shelat referred me to a decision in S.B.G.O. & R.P. Mills v. Occhavial, AIR 1956 Bom 253. In that case a Single Judge of the Bombay High Court held that an appeal would lie against the decision of the trial Court to a Division Bench of the High Court and he did not, therefore, deem it proper that the dispute should be heard at the stage of revision by a Single Judge of the High Court. That was the main reason why the learned Judge held in that case that he could not exercise the power of revision. This reason does not appear to me to be so material as to induce me to follow in the footsteps of the leaned Judge. If the Court were not to exercise its power of revision at the stage of revision and to leave the litigant to file an appeal against the decision rejecting the plaint for non-payment of additional Court-fees, it will cause unnecessary trouble and expenses to the litigant. The relief which he can obtain without more trouble and expense at the stage of revision is left to be obtained by him by adopting an expensive course of filing an appeal against the said decision. If he succeeds in the appeal, the matter will go back again to the trial Court. On the other hand the revision application is now being heard on merits. No further expenses are to be incurred by the litigant. For these reasons, I do not think that the course adopted by the learned Judge in that case ought to be adopted by me in this case.

12. The result is that the revision application is allowed. The trial Court's order holding that the suit falls under the provision of Section 6(iv)(d) of the Court-Fees Act, 1959 and demanding additional court-fees from the plaintiff is set aside. The matter will now go back to the trial Court for further proceedings in the suit. The trial Court will call upon the plaintiff to state the amount of damages claimed by him for each of the two alternative reliefs and thereafter the trial Court will proceed to decide whether any additional court-fees are required to be paid by the plaintiff. The applicant shall get the costs of this revision application from the contesting opponents Nos. 1, 2 and 4 who will bear their own costs of this application. Orders accordingly. Rule made absolute.

13. Revision allowed.


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