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K.S. Perumal Mudaliar Vs. K. Ondipiliya Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 1832 of 1948
Judge
Reported inAIR1950Mad643
ActsCourt-fees Act, 1870 - Sections 9; Suits Valuation Act - Sections 9
AppellantK.S. Perumal Mudaliar
RespondentK. Ondipiliya Pillai
Appellant AdvocateD. Ramaswami Iyengar ; and P.S. Srinivasa Desikan, Advs.
Respondent AdvocateT. Krishna Rao, Adv.
DispositionPetition dismissed
Cases ReferredVenkatarangarao v. Sitha Ramachandrarao
Excerpt:
.....returned plaint holding that right of plaintiff to value his claim taken away by section 9 of suit valuation act - district court set aside order of subordinate judge - revision petition against order of district court - complaint that plaintiff's right to air and light interfered with and no specific prayer for declaration to that effect - not necessary for plaintiff to pay court-fee on footing that finding which he sought as to his title was really declaration necessarily required as preliminary to granting of injunction - it cannot be said that suit had been overvalued - revision petition dismissed. - - now it is well established that in matters of court-fee and pecuniary jurisdiction one must look to the real substance of the suit and not the form in which it has been..........his discretion has been taken away by the notification issued by this high court under section 9, suits valuation act, and relies for this purpose on the judgment of krishnaswami iyengar j., in re ghosh beevi, 1944 1 m. l. j. 340 : a. i. r. 1944 mad. 406. he further held that the proper method of computation would be to assess the relief in the cost of the removal of the structures which is stated in the plaint itself to be rs. 100. the plaintiff filed an appeal to the district court in c. m. a. no. 28 of 1947. the learned district judge set aside the order of the subordinate judge and directed him to take the suit on his file and dispose it of according to law. this revision is now against the order of the district judge in the above civil miscellaneous appeal.2. that the suit falls.....
Judgment:
ORDER

Somasundaram, J.

1. Defendant 1 is the petitioner herein. The question involved in this revision is one under the Court-fees and Suits Valuation Act. The plaintiff filed the suit in the Sub-Court, Madura, for a mandatory injunction for the demolition of some structures made by the petitioner in a lane claimed to be common between the plaintiff and the defendants. The plaintiff valued the relief under Section 7(iv)(d), Court-fees Act at Rs. 3100 The defendant has taken objection to this valuation and contends that this has been deliberately overvalued for the purpose of filing this suit in the Sub-Court. The Subordinate Judge returned the plaint holding that the right of the plaintiff under Section 7(iv)(d) to value his claim at his discretion has been taken away by the notification issued by this High Court under Section 9, Suits Valuation Act, and relies for this purpose on the judgment of Krishnaswami Iyengar J., In re Ghosh Beevi, 1944 1 M. L. J. 340 : A. I. R. 1944 Mad. 406. He further held that the proper method of computation would be to assess the relief in the cost of the removal of the structures which is stated in the plaint itself to be Rs. 100. The plaintiff filed an appeal to the District Court in C. M. A. No. 28 of 1947. The learned District Judge set aside the order of the Subordinate Judge and directed him to take the suit on his file and dispose it of according to law. This revision is now against the order of the District Judge in the above Civil Miscellaneous Appeal.

2. That the suit falls under Section 7(iv)(d), Court-fees Act, is not disputed by the petitioner and the respondent plaintiff has valued it under Section 7(iv)(d). Under Section 7(iv)(c) and (d) court-fee is payable according to the amount at which the relief sought is valued in the plaint. Clause (c) was amended in 1922 by Madras Act V [5] of 1922 and under Section 9, Suits Valuation Act, this High Court has issued a notification which is as follows :

'In suits for injunction, where relief is sought with reference to any immovable property, on the ground that the defendant denies the title of the plaintiff to the property and disturbs or threatens to disturb the plaintiff's possession thereof, the value of the subject-matter of the suit shall not be less than half the value of the property calculated In the manner provided in Section 7, para. 5, Court-fees Act.'

3. This notification applies for the class of suits which fall under Section 7(iv)(d). That this applies to this case also is not in dispute. Before the amendment to clause (c) and the notification under clause (d), it has been held by our Court in Guruvajamma v. Venkatakrishnama Chetti, 24 Mad. 34 that the Court has no power to increase the value given by the plaintiff. In Chinnammal v. Madarsa Rowther, 27 Mad. 480 also it was held that the Court bas no jurisdiction to decline to accept the valuation given by the plaintiff and it could not revise the valuation. These two decisions came up for consideration in Ramiah v. Ramasami, 24 M. L. J. 233 : 18 I. C. 363, a Full Bench decision of this Court. The question referred there was whether a valuation made by a plaintiff of the relief sought by him in a suit for partition of properties which he claimed to be in joint possession along with his coparceners may be rejected by the Court if it is proved not to be bona fide but an arbitrary valuation. There they state that the settled practice of this Court would appear to be in accordance with the decisions in Guruvajamma v. Venkatakrishna Chetti, 24 Mad. 34 and Chinnammal v. Madarsa Rowther, 27 Mad, 480. They were not prepared to differ from those decisions. It is clear from the decision of the Pall Bench that even though the valuation may not be bona fide and may be arbitrary, the Court had no power to interfere with the discretion given to the plaintiff under Section 7(iv)(o) and (d). As stated already, under Section 7(iv)(c) an amendment was introduced by Madras Act v [5] of 1922 by introducing a proviso which stated that:

'provided that in suits coming under Sub-clause (c) in cases where the relief sought is with reference to any immovable property such valuation shall not be less than halt the value of the immovable property calculated in the manner provided for by para. 5 of the section.'

For the purpose of Clause (d) a notification similar in effect has been issued under Section 9, Suits Valuation Act. The effect of this notification therefore is that the plaintiff cannot value the suit at less than half the value calculated in the manner mentioned therein. In re Ghosh Beevi : AIR1944Mad406 or, which the Subordinate Judge relies the plaintiff valued the suit at Rs. 100, a course which was open to him under Section 7(iv)(d), Court-fees Act read with Section 8, Suits Valuation Act at the time of filing the suit. But when it came up in second appeal at the time of filing it, this notification was in force and Krishnaswami Iyengar J. held that the notification applied and plaintiff was asked to pay court-fee in accordance with the notification. In Satyabhigna Theerthaswami V. Narasayya : (1947)2MLJ182 the plaintiff valued the injunction at Rs. 100 under Section 7(iv)(d) and paid court-fee thereon. Similarly, when it came up in appeal objection was taken and Govindarajachari J. held that the plaintiff has to pay court-fee on the plaint and. memorandum of appeal in the lower appellate Court at half the market value of the properties in respect of which he is seeking an injunction. These two decisions In re Ghosh Beevi, 1944 1 M. L. J. 340 : A. I. R. 1944 Mad. 406 and Satyabhigna, Theerthaswami T. Narasayya, : (1947)2MLJ182 are relied on by learned counsel for the petitioner who contends that the valuation should not exceed half the market value of the property. As stated already, before this notification and the amendment, the plaintiff had absolute discretion which could not be Interfered with by the Court. The question is whether under this notification, the discretion has been completely taken away. That the plaintiff cannot value his claim at an amount less than half the market value of the property under the notification is clear from the words of the notification itself. When therefore he cannot value the suit at less than half the market value of the property, can he be allowed to value it at any amount higher than the market value of the property? Giving the plain meaning to the words of the notification it only means that he cannot value it at less than half. The discretion therefore given to him to value over and above that is not in my opinion taken away because as already held by this Court, the plaintiff has the discretion with which we cannot interfere and this discretion, in my opinion, is limited by this notification to the lower limit to which he can go. It is true that very rarely a plaintiff would come forward voluntarily to pay higher court-fee. But if he does, in my opinion, his right to value it has not been taken away by this notification. No doubt in Lakshman v. Babaji, 8 Bom. 31 it has been held that the plaintiff cannot by his valuation be allowed to choose the forum. But that decision is not followed in our Court. In the Full Bench decision in Ramiah v. Ramaswami, 24 M. L. J. 233 : 18 I. C. 363 as already stated, the finding was that the valuation was not only arbitrary but not bona fide. Even under such circumstances, the Court refused to interfere with the valuation. Assuming therefore that the valuation in this case is not bona fide and absolutely arbitrary, so long as it does not offend the provisions of the notification issued under Section 9, Suits Valuation Act, I think the Court cannot interfere with the discretion of the plaintiff.

4. The learned District Judge has also held that this is a case which will also fall under Section 7(iv)(e), Court-fees Act. It is true that so far as the prayer in the plaint is concerned, he seeks only a mandatory injunction directing defendant 1 to demolish the structures put up by him; but the plaintiff has, in para. 8 of his plaint, mentioned that there has been a diminution in the accustomed flow of light and air through the window in his house in consequence of the obstruction as to materially interfere with the convenient occupation of the plaintiff's house. Wadsworth J. has pointed out in Venkatarangarao v. Sitha Ramachandrarao, I. L. R. (1941) Mad. 157 : A. I. R. 1941 Mad. 91 as follows:

'Now it is well established that in matters of court-fee and pecuniary jurisdiction one must look to the real substance of the suit and not the form in which it has been clothed. If, therefore, there is any legal necessity for the plaintiff to get a declaration of his right of easement before he can get an injunction to protect it, the suit would have to be filed under Section 7(iv)(c), Court-fees Act, even though he has sought this declaration by means of averments in the body of the plaint and not by praying for a declaration specifically amongst the reliefs at the end of the plaint. On this part of the case, the safe rule is that, 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. But 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 claims the relief which would 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 .... It seems to me that, on the frame of the present suit, all that the plaintiff has to do is to prove by evidence that he has a subsisting right of easement to the extent and of the nature claimed. If the evidence establishes the existence of this right, there is no legal impediment which has to be removed before the injunction protecting that right will be granted; and whether he has or has not sued for declaration, it is not necessary for him to pay court-fee on the footing that the finding which he seeks as to his title is really a declaration, necessarily required as a preliminary to the grant of her injunction.'

5. In this case, as already stated, there is a complaint that the plaintiff's right to air and light has been interfered with and though there is no specific prayer foe a declaration to that effect, it is enough if the plaintiff establishes by evidence the existence of his right and it is not necessary for him to pay court-fee on the footing that the finding which he seeks as to his title is really a declaration necessarily required as preliminary to the granting of the injunction.

6. Mr. Ramaswami Aiyangar contends that there can be no easement in this case as the property is claimed to be the common lane of the plaintiff and that the definition of easement under the Easements Act will not apply to this. This question whether he has got a right has to be decided in the case and probably will be one of the issues raised. This cannot be decided at this stage and it will have to be gone into by the lower Court. If, therefore, the relief for injunction is sought for on the plaintiff's right of easement, it is difficult to say that the suit has been grossly overvalued. In either view I hold that the judgment of the lower appellate Court is correct. It is, therefore, confirmed and this revision petition is dismissed with costs.


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