1. I have had the advantage of perusing the order of my learned brother on this vexed question of court-fee arising out of Section 7, Clause 7 (iv) (c) Court-fees Act which, as it stands, gives a plaintiff a right to value the relist he seeks in any manner he pleases in a suit to obtain a declaratory decree or order where consequential relief is prayed for. This right unrestricted in cases coming within the scope of Section 7, Clauses (iv), (a), (b), (d), (e) and (f) is circumscribed by the proviso added by Section 8, Court-fees (Amendment) Act, 1922, that in suits corning under Section 7, Clause (iv) (c) where the relief sought*is with reference to any im-moveable property, such valuation shall not be less than half the value of the immoveable property calculated by S, 7 (v). If that proviso is applicable to the suits before us filed by a mortgagor ana puisne mort-gagee for a declaration and injunction to restrain the mortgagees exercising their powers of sale under Section 69(3), T. P. Act," the amount due on the mprt-gages including unsealed interest amounting to about eight lakh's, not only will a very substantial ad valorem court-fee be payable but the suits will be far above the financial jurisdiction of the City Civil Court which is limited to Rs. 10,000.
2. The petitions raise, as it appears to me a general and a special point for determination (1) the valuation for court-fee and jurisdiction, which under Section 8, Suits Valuation Act, must be the same, on suits such as these by a mortgagor or puisne mortgagee to restrain the mortgagees from exercising their powers of sale under Section 69 and (2) the court-fee payable on a suit or proceeding by a mortgagor who claiming to be an agriculturist seeks to have the scaled down amount declared and to restrain the mortgagee from exercising his powers of sale except to the extent of the scaled down amount.
3. The short facts relevant to my approach to this fiscal question are these. The original mortgagees, Mr. and Mrs. Irani are the holders of several mortgages, some of them by assignment, from the mortgagor Badsha Sahib, and acting under Section 69, T. P. Act, notified the hypotheca, which comprises cinemas and urban property in Madras, and also extents of wet and arable land outside the City of Madras for sale in 195$. The mortgagor, Badsha Sahib first filed a suit, O. S. No. 1490 of 1953, in the City Civil Court for a declaration that the attempt to exercise the power of sale by the mortgagees was wrongful and illegal, and for an injunction to restrain the sale notified for 15-10-1953 or any other date.
Various grounds were alleged, namely, that the mortgagors would be put to great loss, that the mortgagees were actuated by a desire to knock away the property for a song, that the statutory requirements of Section 69 were not fulfilled and so on. This suit was valued at Rs. 15 for declaration and Rs. 15 for an injunction in accordance with what is stated to be existing practice in the City Civil Court and a very small court-fee paid. It was dismissed as withdrawn in terms of a consent memo filed before Satyanarayana Rao and Rajagopalan JJ. in C. M. A. No. 698 of 1953 which was heard along with a Letters Patent Appeal in an interlocutory matter, by which the mortgagor agreed to pay the mortgagees Rs. 1,60,000, on or before 15-8-1954 and the mortgagee agreed to release a cinema in Pallavaram and 1.4 acres in a village to enable the mortgagor to make the payment, and the power of sale, if no default was made was not to be exercised on or before 15-8-1954.
Then, in May 1954, the mortgagor filed O. S. No. 980 of 1954 in the City Civil Court claiming to be entitled to relief under Section 13-A, Agriculturists' Relief Act as amended by Act 23 of 1948. Under this amendment and also under Act V of 1954, known as the Moratorium Act, he sued for a declaration valued at Rs. 100 that a sale by the mortgagee without intervention of court in any event before 7-2-1955, the date on which the Moratorium Act expired will be wrongful, illegal, and void and also for an injunction which he valued at Rs. 5 to restrain such a sale and paid a court-fee of only Rs. 15-8-0. A second suit, O. S. No. 996 of 1954, for the same reliefs and similarly valued was filed by a pursue mortgagee. The suits were vigorously resisted by the mortgagees mainly on the ground that the provision to Section 7(iv)(c) was applicable.
4. The learned City Civil Judge following a line of decisions held that this proviso did not apply to this category of suit. I do not wish to retraverse the reasons or the case-law which my learned brother has given in support of this view except to say that I find it extremely difficult in view of the language-of the Act, the case-law relied on and the existing practice to take a different view. The main difficulty I have felt in deciding this fiscal question is simply that in my view such a suit by the mortgagor to restrain a mortgagee from bringing the hypotheca to private sale under Section 69, T. P. Act should lie only in the court which has jurisdiction to try any suits filed on the mortgage itself such as a suit for sale or a suit for redemption.
It is not disputed that such a suit would not life in the City Civil Court within the limits of its present financial jurisdiction. If, however, the proviso to Section 7(iv)(c) is held not to apply to a suit of this kind, I am unable to think of any legal reason to justify a finding that these suits do not lie in the City Civil Court, but can only be filed for these declarations and consequential reliefs on the Original Side of the High Court. I should have thought that in a case of this kind the parties would ordinarily institute such declaratory and injunction suits in the court which has jurisdiction to give relief on the mortgaged itself. Had the suits been filed in the Original Side of the High Court and had under Section 7(iv)(c) the suit been valued with the minimum court-fee payable in that higher forum, I should have fell no difficulty at all in this matter.
This, however, is a question which has to be considered separately and 1 am constrained to agree with my learned brother that as a general principle the proviso to Section 7(iv)(c) will not govern this category of cases.
5. Unfortunately in suits filed under Section 7(iv) fa) to (f) a plaintiff is entitled to give a notional value to the relief he claims in the plaint, in other words, to value it as he pleases and therefore he is given a statutory right in fact to choose his own forum. He can go to a Munsif's Court for relief valuing his prayers for declaration and injunction in important and complicated matters where valuable rights are put in jeopardy and from this low forum indulge in a cycle of most expensive litigation on the court-fee of a few rupees.
A great deal of speculative litigation which takes a very great deal of court time falls within these categories of suits which the plaintiff has the privilege of valuing at will and a choice of forum. Court-fees have gone higher and higher on plaints seeking relief in money, damages or recovery of pos session of property in a Straightforward manner. But this privilege which plaintiffs have in suits under Section 7(iv) is one which has been abused in an increasing manner, and by way of reaction to the comparatively exorbitant court-fee charged in suits avenues are being constantly exploited to evade it by couching reliefs in declaratory from to enable them to be valued at will under Section 7(iv).
The question of court-fee in suits under Section 7(iv) has steadily degenerated into a battle of wits between courts and litigants with a resulting and continuing headache to courts and their administrations. The Court-fees Act and the case law under it have become a compendium of really anomalous absurdity to which with respect I feel we are making a further addition and which can in my view be only relieved by a radical change in the whole system of court-fees, the existing Act violating all accepted canons of Court taxation and opening up avenues lor court-fee evasion and exploitation which have really gone beyond control.
It is with the greatest reluctance that in these matters I have no option, with the Court-fees Act as it stands, but to agree with my learned brother that plaintiffs are entitled to vidue these suits as they please, and also to institute them in the lowest forum of their choice on this prima facie miserably inadequate court-fee in relation to the mortgage amount and the property involved.
6. Coming to the special point these petitions raise, Mr. Anandalwar for the mortgagor complained that the simple and easy remedy afforded by Section 19-A, Madras Agriculturists' Relief Act of having the scaled -down amount under Section 13-A determined by the Court having jurisdiction on a simple twelve anna application was not open to him, and gives this as the reason why he had recourse to this suit for an injunction. The mortgagor was admittedly not an agriculturist as defined by Section 3 (2) of Madras Act IV of 1938, but Section 13-A gives relief to persons who would be agriculturists but for the operation of proviso (b) or (c) to that section, in other words including within the definition of an agriculturist those who pay profession and property tax but excluding those who pay income-tax.
The mortgagor's case is that he has not paid income-tax for several years prior to suit. In -- 'Venkatanarayana Rao v. Ghampalal', (A), Rajamannar C. J. and Venkatarama Aiyar J.
confirming a judgment of Rajagopalan J. held that an application under Section 19-A ior a declaration of the scaled down amount of a debt was not open to a person claiming to be entitled to relief under Section 13-A and that the remedy of such a person was by way of a suit or in a suit filed against him. I am in complete agreement with my learned brother that the City Civil Court has no jurisdiction at all to scale down these mortgage debts, the only Court having jurisdiction to do so being the High Court on its Original Side. We observe that there is an issue as regards the quantum of scaling down which the City Civil Court has no jurisdiction to determine.
7. The scope of these two suits filed in the City Civil Court on arbitrary valuations of the plaintiffs is very limited and only concerns an injunction against the mortgagees restraining their exercise of powers of sale under Section 69 pending a determination of the question as to whether the mortgagor is entitled to relief under Section 13-A and if so what the scaled down amount is. This is most important as it is obvious that the mortgagee cannot bring the property to sale except for the scaled down amount under Section 13-A.
Mr. Anandalwar for the mortgagor complains that in order to avoid a suit for redemption of the mortgage on the Original Side of the High Court on which a very heavy ad valorem court-iee would be payable, he even attempted to file some form of petition under Section 69A, T. P. Act with a prayer for a determination, of the scaled down amount but that this was returned with objections. He informs me today that it has since been admitted. I make no comment on this, new remedy sought which 1 have not examined. It is ordinarily outside the province of a Judge to suggest remedies, but both the mortgagor and the mortgagees by their contentions in these suits filed have got themselves as it appears to me into unnecessary fiscal difficulties as regards jurisdiction and court-fees.
On the one hand, the mortgagee, cannot bring the property to sale except for the scaled down amount if the mortgagor is eligible for relief under Section 13-A. On the other hand, the mortgagor has no right to a permanent injunction restraining the mortgagee from exercising his powers of sale indefinitely. In order to break this deadlock it was I think open to the mortgagor to have filed a regular suit for a determination by way of a declaration of the scaled down amount and for an injunction restraining the mortgagee from exercising his powers of sale under Section 69 except for the amount so scaled down but in the proper forum.
Such a suit for a declaration and injunction can in my view be valued under Section 7(iv)(c) but the minimum court-fee payable on the Original Side of the High Court would have to be paid. The mortgagor will then be in a forum which has full jurisdiction to determine the vital scaling down issue. I do not think that the apprehensions that such a suit would be regarded as one for redemption are well-founded though such an objection may be raised. In such a suit if the mortgagor concedes the right of the mortgagee to bring the hypotheca to sale for the scaled down amount under Section 69 of the Transfer oi Property Act the only issue that could arise for determination would be whether the mortgagor was entitled to relief under Section 13-A and if so, to what extent.
8. I have gone out of my way perhaps in indicating to the mortgagor who has landed himself in a fiscal difficulty the correct remedy by way of suit which he should have pursued. I consider however that in determining a vexed question of this kind a Judge should do his best to indicate the correct avenue of relief resulting from detective legislation. It may be that the Legislature may in view ol the decision in (A), introduce a further amendment to give persons claiming relief under Section 13-A the simple and cheap remedy accorded by the Act to other agriculturists. As matters stand, in view of this decision, a mortgagor claiming relief under Section 13-A need not file a suit for redemption but can obtain much cheaper relief through the avenue I have suggested. The petitions are dismissed but without costs.
Krishnaswami Nayudu, J.
9. These revision petitions raise the question of court-fee and jurisdiction in regard to O. S. Nos. 980 and 996 of 1954 on the file of the City Civil Court, Madras. They are suits instituted by the morigagor and puisne mortgagee of a number oi valuable properties in the City and mofussil for a declaration that the sale proposed to be held by the defendants-mortgagees in pursuance of the power of sale vested in them under Section 69 ot the Transfer ol Property Act without the intervention o[ Court would be wrongful, illegal and void and for an injunction restraining the mortgagees from exercising the right of sale without the intervention of Court. The plaintiffs have put up their own valuation for declaration and injunction, declaration being valued at Rs. 100, and injunction at Rs. 5 and paid a court-fee of Rs. 15 and annas eight respectively.
The mortgagees contended that the suits have not been properly valued for purposes of court-fee and jurisdiction and the proviso to Section 7, Clause (iv) (c) of the Court-fees Act would be applicable to the case and the suits must be valued at half the value of the immoveable properties mortgaged and not on the basis of notional valuation put up by the plaintiffs. One of the issues raised in the case was whether the suits were properly valued for the purposes of court-fee and jurisdiction, and, if not, whether the suits were within the limit of the pecuniary jurisdiction of the City Civil Court and whether the Court had jurisdiction to entertain the suits. This issue was taken up and argued as preliminary issue and the learned City Civil Judge found that the suits have been properly valued and the proviso to Section 7, Clause (iv) (c) has no application to the present cases.
10. The main contention of the plaintiffs in respect of their claim for declaration and injunction regarding the proposed sale of the properties was that the mortgagor and the puisne mortgagee are agriculturists both within the meaning of the Madras Agriculturists' Relief Act, IV of 1938, and the Moratorium Act, V of 1954, that the mortgagees are purporting to bring the properties to sale for recovery of a large sum of Rs. 8 lakhs and odd, that, on a scaling down of the mortgage debt, the amount that would be found due would be less than Rs. 4,03,000, and some of the mortgages will be wiped out and discharged and that the mortgages have therefore no right to sell the properties on the basis of the claim regarding the amount due on the mortgages and that, if the properties are sold on the foot of the mortgagees present extravagant claims they would be acting in a fraudulent and improper manner and any such sale in pursuance of the power of sale would thereby be wholly void. They therefore prayed for a permanent injunction restraining the mortgagees from selling the properties without the intervention of the Court. In any event, they claimed that they are entitled to a permanent injunction till 6-2-1955, the period of the moratorium specified under Act V of 1954.
11. The short question therefore is whether the suits being for declaration and for injunction, which is a consequential relief, could be valued on the notional value put up by the plaintiffs, or whether the proviso to Section 7, Clause (iv) (c) is applicable, which would then necessitate the valuation both for purpose of court-fee and jurisdiction at half the value of the immoveable properties, which will far exceed the pecuniary jurisdiction of the City Civil Court and the suits therefore could not be considered to have been instituted in a Court of competent jurisdiction.
The decision of this question turns upon the meaning to be given to the expression "with reference to any immoveable property" in the proviso. Section 7, Court-fees Act provides that "the amount of the fee payable under the Act in the suits nest hereinafter mentioned shall be computed as follows"; and Clause (iv) (c) relates to a suit "to obtain a declaratory decree or order, where consequential relief is prayed" and the computation of the fee shall be according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The plaintiff therefore in a suit to obtain a declaratory decree or order, where consequential relief is prayed, is entitled to give a notional valuation on both the relief as to declaration and the consequential one and decide on the basis of such valuation the forum for the suit. The proviso to the section is in the following terms :
"Provided that in suits coming under Sub-clause (c), in cases where the relief sought is with reference to any immoveable property, such valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by Para, (v) of this section."
The contention of the petitioners-mortgagees is that these are suits where the relief sought for is with reference to immoveabls properties. Prima facie, this contention appears to be correct, as it cannot be denied that the suit has reference to immoveable properties, which have been mortgaged and the relief asked for is that those immoveable properties should not be sold without the intervention oi Court. The meaning that should be given to the expression "with reference to any immoveable property" has been the subject of consideration in a number of decisions of this Court, which were all referred to by the learned City Civil Judge in this judgment, to one of which one of us, .i. e., myself, was a party.
The view taken by this Court as regards the interpretation of that expression has been that the dispute should relate to title to immoveable property or to the possession thereof in the sense that the relief sought for must be directly connected with or should be bold to affect the plaintiffs' rights to possession and ownership of immoveable properties. Unless a decision as to the right of either parties to title or possession is necessary for the plaintiff to obtain the relief prayed for, the mere circumstance that the suit has some connection with immoveable property, as in the present case, where the sales of immoveable properties are sought to be Stayed, would not be sufficient to hold that the relief sought for is with refer-ence to immoveable property.
12. One of the earliest decisions, which has a. bearing on the present question is that of Varada-chariar J. in--'Gurunatha v. Secy. of State,' AIR 1936 Mad 201 (B), where a mittadar sued for a declaration that in respect of certain lands in his mitta he was-entitled to take water from a river free of irrigation cess and. sought to recover a sum of money illegally levied from , the Secretary of State for India-in-Council, who was the defendant in the suit. The learned Judge, with reference to a contention that the suit should have been valued under the proviso to Section 7, Clause (iv) (c), observed that the prima facie interpretation of the expression "that the relief sought is with reference to any immoveable property" is that the dispute should in some sense relate to the title to immoveable property, following the opinion taken by Jackson J. in, In re, Venkitakrishna Pathar, AIR 1927 Mad 348 (C), and agreeing with the view of Jackson. J. as to the difficulties and anomalies to which any other construction will lead. In A 1 R 1927 Mad 348 (C), the suit was with reference to the right of ease-ment, and Jackson J. observed that inasmuch as the relief sought is the declaration of the right of easement, the relief may be said to be with reference to immoveable property, but the proviso should be read with the clause so as to make "with reference to" mean "involving the possession of land, houses or gardens", and then the proviso would not be applicable to easements at all. As regards easements, in, the Madras amendment of the Court-fees Act, V of 1922, a separate Sub-clause, Sub-clause (e), has been provided. Varadachariar J. further observed in AIR 1936 Mad 201 at p. 202 (B) as follows:
"In the present case, there is no dispute about the plaintiff's title to bis mitta; nor is he seeking a declaration even in respect of a right of easement in the strict sense. He is merely asking for an immunity from assessment. It seems to me to be putting a very unnatural interpretation on the words of the proviso to say that in the present suit relief is sought with reference to immoveable property."
Similar is the view taken in K. J. V. Naidu In re AIR 1946 Mad 235 (D). Pappukannu Anni v. Thop-ayya Mudaliar, (E),
Venkateswara Rao v. Municipal Council, Masulipatam,
(F) and Thirugnana Sambanda Pandara Sannidhigal v. State of Madras, (G).
13. In Marimuthu Nadar v. Tuticorin Municipality,
(H), I had occasion to deal with the question arising out of the interpretation of the expression "with reference to immovable property" and, after reviewing the relevant decisions on the question, 1 observed that though the reliefs asked for may be in some way connected with immovable property, no question of title to or right to possession of the immoveable property arises in the sense that such a right or title has been denied by the defendants and that the declaration and injunction had become necessitated thereby. That was a case in which the plaintiffs asked for a declaration that a certain scheme framed by the Municipality under the Town Planning Act was illegal and ultra vires and for an injunction restraining the Municipality from enforcing all or any of the provisions of the scheme against the plaintiffs. I observed in that case that both the substance of the plaint and the reliefs asked for related only to the proposed scheme and were not directed against any immoveable properties and that the scope of the suit was confined to the defendants' rights to exercise the powers under the Madras Town Planning Act.
14. The relief sought in the present cases relate to the exercise of the power of sale vested in the mortgagees under Section 69 of the Transfer of Property Act, as such exercise, according to the plaintiffs, would be illegal and therefore a declaration is necessary that any sale held in pursuance of such an illegal exercise of the power would he invalid and void and aft injunction has to be granted restraining the mortgagees from carrying out the illegal act. From the mere fact that the reliefs asked for have some con-nection with immoveable properties, it should not be understood that the relief asked for has. reference to immoveable properties.
The relief must only have reference or relation to immoveable property, but must directly pertain to immoveable property in the sense of asking for a declaration of title to or possession of the property or injunction restraining the defendants from questioning the title or interfering with possession or similar reliefs the granting of which would result in establishing some right to or in immoveabie property either arising out of title or possession.
The point in dispute is as to the exercise of the power by the defendants and a decision of that dispute, viz., whether the plaintiffs' contention that the power sought to be illegally exercised is correct, on which decision would depend the granting or otherwise of the relief prayed for. No decision or adjudication is required in this case as to the parties' title to the properties or their respective rights to possession. The relief is purely one directed personally against the mortgagees from doing an act which they have been authorised to do under the contract of mortgage by" reason of a power vested in them under Section 69, T. P. Act.
The position of a mortgagee exercising the power of a sale is that of an agent, the principal being the mortgagor, under whose authority he purports to sell the property. Virtually therefore the suit is by the principal against the agent and the Court's assistance is sought for to restrain the agent from acting beyond the authority conferred on him and contrary to the provision of law under which such authority has been conferred and which is sought to be exercised. In any view, I am unable to discover in this suit any question arising for decision and having any direct relation to the mortgaged properties.
The matter in dispute or the subject-matter of the suit is the exercise of the power under Section 69 and not the properties mortgaged. Nor could it be suggested that the injunction is to deprive the mortgagees of the power of sale. But it is only to defer it for a limited period until such time as the amount that really becomes payable Under the mortgages is ascertained by the application of the provisions of the Agriculturists' Relief Act.
15. Mr. Gopalaswami Aiyangar sought to distinguish the cases cited on the respective facts of the cases, but we have no doubt that the principles adopted in those cases have direct application to the present cases. Learned counsel further sought to argue that by asking the Court to interfere with the power of sale by issue of an injunction; the real relief prayed for is as regards the right of the mortgagees to convey title to a third party, who might become the purchaser, and as such question of title to property directly arises.
I am unable to understand how, before the exercise of the power of sale, any question of title to immoveable property could arise. No dispute arises as to whether the mortgagee by exercise of the power could convey valid title to the purchaser. As already observed, the tact that the reliefs may have some bearing or indirect or remote relation would not be sufficient to hold that the suits affect any question of title or involve the decision as to title or possession of immoveable property.
16. It is further pointed out that, on the allegations in the plaint, it will be necessary for the City Civil Court to scale down the mortgage debts and ascertain the amounts due under the Agricultural Relief Act, IV of 1938, and therefore the suits are in substance for scaling down the mortgage debts, which, considering the largeness of the amount, would be beyond the pecuniary jurisdiction of the City Civil Court. It is needless to state-that the suits being for declaration and consequential relief, the notional value put upon by the plaintiffs would also be the value tor purposes of jurisdiction under the suits Valuation Act, VII of 1887.
It is therefore urged that the plaints are in substance for scaling down the mortgage debt and the proper forum would be the High Court on its Original side. The question as to whether the scaling down of a mortgage debt, where the debtor becomes entitled to the benefit of scaling down by being an agriculturist under the amended provisions of Section 13-A, Agricultural Relief Act, could be by way of an application under Section 19-A of the Act or a suit is concluded by the decision of the Bench of this Court in (A), the view being that no such relief could be granted in a proceeding under Section 19-A.
It is therefore suggested that the proper course would be by a suit, which, considering the pecuniary interests involved, would undoubtedly be beyond the jurisdiction of the City Civil Court, whatever may be the form of the proceeding. Our attention is drawn to the issues raised in the suits, especially to issue 7 in O. S. No. 990 of 1054, viz., "Are the mortgage debts mentioned in the plaint, or any of them, liable to be scaled down under Act IV of 1938, and, if so, what is the amount due thereon." It is therefore urged that the suits are virtually for scaling down of the mortgage debts, which are obviously beyond the competence of the City Civil Court.
It is really unnecessary to make any observations as regards the scope of the suits, as it is not the contention of the mortgagees that the suits have to be valued as proceedings for scaling down, the only plea of the mortgagees being that the proviso to Section 7, Clause (iv) (c) is applicable and that the court-fee has to be paid on half the value of immoveahle property. But since the question has been raised, we consider it desirable to examine the scope of the suits whether it would be really necessary for the City Civil Court to find out the exact amount due under the mortgages by the application of Agriculturists' Relief Act.
In our view, to grant the reliefs prayed for, namely, the declaration that any sale of the plaint schedule properties without the intervention of Court would be wrongful, illegal and void and the permanent injunction restraining them from selling the properties, it would not be necessary to embark on an enquiry involving ascertainment of the actual amount due under the mortgages. The plaintiffs' right to have an injunction would depend; upon the decision as to whether they are agriculturists entitled to relief under Act, IV of 1938, and if so the irresistible conclusion should be that they would not be liable to pay the sum of 8 lakhs and odd for which the mortgagees purport to bring the properties to sale. That would be sufficient in our view to grant the reliefs prayed for and there will be no need to ascertain the amount, which, however, could only be effectively dealt with in proper proceedings instituted in a Courts of competent jurisdiction. This question, however, does not arise for decision in these appeals as the objection to court-fee and jurisdiction is based oh different grounds, which we have already dealt with.
17. In the result, the civil revision petitions are dismissed. No order as to costs.