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Chandubhai Jematbhai and ors. Vs. Gujarat State Co. Op. Land Dev. Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR807
AppellantChandubhai Jematbhai and ors.
RespondentGujarat State Co. Op. Land Dev. Bank Ltd. and ors.
Cases ReferredIndumatiben Chimanlal Desai v. Union of India
Excerpt:
.....whether this particular case falls within the main body of section 6(ix) or within the proviso to section 6 (ix) of the..........attachment which has been levied on the land in dispute does not affect their 5/6th share in the suit land and their contention is that the debt created by the third respondent in favour of the first respondent-cooperative bank was not binding on the plaintiff's 5/6th interest in the suit land. the plaintiffs are the five sons of respondent no. 3. it was the plaintiffs' case that the amount for which the land was attached was rs. 17,870/99 and the land in dispute was worth rs. 15000/- so far as the market value of the land was concerned. the suit was valued at rs. 299/-and the court-fees of rs. 15/- were paid under clause (iv)(d) of section 6 of the act. thereafter the court-fees inspector applied to the trial court, viz. the civil judge (s.d.) baroda, under section 12 of the act.....
Judgment:

B.J. Divan, C.J.

1. The petitioners are the original plaintiffs and respondents DOS. 1 to 3 are the original defendants. The State of Gujarat, who is the 4th respondent is the real contesting party in this Civil Revision Application. This Revision Application raises an interesting question of interpretation of Section 6(ix) of the Bombay Court-fees Act, 1959 (hereinafter referred to as the Act). The plaintiffs have filed this suit praying that the attachment which has been levied on the land in dispute does not affect their 5/6th share in the suit land and their contention is that the debt created by the third respondent in favour of the first respondent-Cooperative Bank was not binding on the plaintiff's 5/6th interest in the suit land. The plaintiffs are the five sons of respondent No. 3. It was the plaintiffs' case that the amount for which the land was attached was Rs. 17,870/99 and the land in dispute was worth Rs. 15000/- so far as the market value of the land was concerned. The suit was valued at Rs. 299/-and the Court-fees of Rs. 15/- were paid under Clause (iv)(d) of Section 6 of the Act. Thereafter the Court-fees Inspector applied to the trial Court, viz. the Civil Judge (S.D.) Baroda, under Section 12 of the Act praying that the proper amount of court-fees should be directed to be paid in accordance with the provisions of the Act. I have perused the prayer in the plaint and it is obvious that the only way in which that prayer can be looked into is that it is a prayer for setting aside the attachment so far as the 5/6th interest of the plaintiffs in the suit land was concerned. It is true that the provisions of Section 6(iv)(d) of the Act were invoked by the plaintiffs when they instituted the suit, but if the suit was in fact, to set aside the attachment of the land or an interest in the land or revenue, then there is a specific provision in Section 6(ix) of the Act and since there is a specific provision for suits of this kind, it is Section 6(ix) of the Act which should have been invoked and applied in this case rather then Section 6(iv)(d) of the Act. To this extent Mr. Shah the learned Assistant Government Pleader appearing for the State Government is right in his submission.

2. Section 6(ix) is in the following terms:

6(ix), In suits to set aside an attachment of land or or of an interest in land or revenue-according to the amount for which the land or interest was attached.

Provided that, where such amount exceeds the value of the land or interest the amount of fees shall be computed as if the suit were for the possession of such land or interest,

In the instant case, so far as the value of the land in dispute is concerned, as per plaintiffs' own volition it was Rs. 15,000/-. No evidence was led by the Court fee inspector before the trial Court to show that the amount of the value of the land in dispute was more then Rs. 17,000/-. It is clear that so far as proviso is concerned the proviso comes into play only if the value of the land or interest is less then the amount for which the land or the interest is attached. If it exceeds that amount then the proviso cannot come into play at all.

3. Mr. Shah, for the Government, drew my attention to Section 6(v)(a) of the Act which deals with suits for the possession of land, houses and gardens. It reads as under:

6(v) In suits for the possession of land, houses and gardens according to the value of the subject matter-and such value shall be deemed to be, where the subject matter is a house or garden-according to the market value of the house or garden and where the subject matter is land, and

(a), where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government-a sum equal to twelve and a half times the survey assessment;(b) ... ... ... ...

Therefore, as regards the agricultural land where full assessment is paid to the Government under survey settlement for a period not exceeding 30 years then the land is to be valued at a sum equal to twelve and a half times the survey assessment and it is that valuation of such agricultural land in view of Section 6(v) on which the Court fee has to be paid. Mr. Shah for the Government urged before me that an anomaly would be created if this is the manner in which Section 6(v)(a) of the Act is to be interpreted. He contended that the anomaly arises in this manner. If the value of the land or the interest is more then the amount for which the land or interest is attached, then, the court fee has to be paid on the amount for which the attachment is levied. In the instant case, if it were to be found that the land or the interest therein claimed by the petitioner was worth Rs. 20.000/ - the Court fee will have to be paid on the full amount of Rs. 17,000/- and odd, but, if the land is found to be of the value of Rs. 15,000/- then the Court fee will have to be paid not on the amount of Rs. 15000/- but on the artificial value which will be equal to twelve and a half times the assessment for land revenue in respect of that land in view of Section 6(v)(a) of the Act.

4. In my opinion, the anomaly, if any, arises because of the fiction which is created by proviso to Section 6(ix) of the Act. The proviso does not mention that the Court fee has to be paid on the market value of the land but a legal fiction is created and under that legal fiction the suit for setting aside an attachment of land or of an interest in land or revenue, is to be treated as if it were a suit for the possession of such land or interest. Once that fiction arises full effect to the legal fiction will have to be given and as observed by the House of Lords 'imagination would not be allowed to boggle' because of a peculiar situation which arises by operation of the fiction. Really speaking, it is not by operation of the fiction but by operation of Section 6(v)(a) that the apparent anomaly arises. If the lands were not agricultural lands, then, in the suit for possession of the said land the court fee would have to be paid on the full amount of the market value of the land and under the proviso to Section 6(ix) of the Act, the Court fee would have to be paid accordingly on the market value of the land or interest in respect of which the attachment is sought to be set aside. Because the Legislature in Section 6(v)(a) of the Act has treated land paying land revenue to the Government on a special basis, the consequence of that preferential treatment would also be reflected when the legal fiction under Section 6(ix) proviso comes into play and there is no escape from this conclusion.

5. However, it will be open to the Government or to the Court-fee Inspector to show that the amount of the value of the land or interest which has been placed by the plaintiff is not the market value of such land or interest and that the market value of such land or interest is much more then the amount for which the land or interest is attached and in that eventuality if the evidence is led in that behalf and accepted by the Court, it will have to beheld that the proviso will not be applicable in the light of amount of valuation thus ascertained so far as the land in dispute is concerned. Barring this right of the Court-fee Inspector of the State Government to prove by leading evidence in that behalf that the valuation mentioned by the plaintiff in the plaint of this particular suit is not correct so far as Section 6(ix) of the Act concerned and if he is able to satisfy the Court that the valuation of the land in dispute is in fact more then the amount for which the land or interest was attached, he would be able to take the case out of the legal fiction created by the proviso to Section 6(ix) and bring it within the main body of Section 6(ix) of the Act. In the absence of any such material, if the Court is inclined to accept the valuation placed by the plaintiffs on the land in dispute as correct, then the question whether the proviso would or would not apply, has to be considered in the light of the above interpretation.

6. The anomaly which Mr. Shah for the Government has urged before me is more apparent then real. The anomaly if any, goes with the origin of the fiction created by proviso to Section 6(ix) of the Act and the Legislature having so provided, it is not for the court to depart from the clear meaning to be attached to the wordings of a particular statute, Mr. Shah for the Government contended that to avoid such an anomaly the deeming fiction in Section 6(v) should be avoided and the main provision of Section 6(v) should be applied, but then the suit will be valued as if it were a suit for possession of the land. Mr. Shah drew my attention to the decision of a Division Bench of Bombay High Court in Indumatiben Chimanlal Desai v. Union of India 71 B.L.R. 340. There it has been held that where the amount sought to be recovered is comparatively of a smaller value then the value of the property from which it is sought to be recovered, it would be only the amount which is sought to be recovered that would be the monetary loss. In such a case the court fee has to be paid on the amount sought to be recovered by attachment and sale of the property. That is precisely the interpretation which I have put on Section 6(ix) of the Act. Under these circumstances this decision of the Bombay High Court does not take a view different from the view which I have taken.

7. Under these circumstances, this Civil Revision Application is allowed and the order passed by the learned Civil Judge (S.D.), Baroda, is set aside. It will be open to the plaintiffs as well as to the Government to lead evidence before the trial Court to establish the correct market value of the land so as to enable the Court to determine whether this particular case falls within the main body of Section 6(ix) or within the proviso to Section 6 (ix) of the Act. Rule is made absolute accordingly.

8. The costs of this Civil Revision Application will be costs in the suit before the trial Court.


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