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Sm. Annapurna Ghose and ors. Vs. Rameswar Guha and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal302
AppellantSm. Annapurna Ghose and ors.
RespondentRameswar Guha and anr.
Cases ReferredSale and Supply Society Ltd. v. Mafizuddin Ahmed
Excerpt:
- .....the plaintiff to correct the valuation. but so long as there are no rules framed under section 9, suits valuation act, the court would have no standard before it on which it may regard the plaintiff's valuation as an under-valuation and its power of creation would have to be exercised on that footing.4. there can be no doubt that in many cases it is impossible for the court on the facts stated to question the plaintiff's valuation. but there are again other cases where it is quite easy to question the plaintiff's valuation. in the full bench case, there was a decree of rs 11,000 odd against the plaintiff. he instituted a suit in the munsiff's court for a declaration that the said decree was void as against him and prayed for an injunction restraining the defendants from executing that.....
Judgment:
ORDER

M.C. Ghose, J.

1. This is an application under Section 115, Civil P.C., by the defendants in a case where the plaint was returned by the trial Court to the plaintiff for presentation in the Court of a Subordinate Judge and in appeal that order was set aside and the Munsif was directed to try the suit. Upon hearing the learned advocates on both sides, it appears that the dispute in this case relates to a house in Dumdum, The case of the plaintiff opposite party 1 as set out in his plaint is that the plaintiff was a contractor against whom many people had obtained decrees, that the house in question which belonged to the plaintiff was sold in execution of a decree in 1916 and purchased in March 1916 by one Sher Ali, that thereafter the plaintiff in August 1916 bought the house from Sher Ali in the names of the five defendants two of whom are his sons-in-law and thereafter paid the mortgage in respect of the house and has since then been possessing and occupying it as his own house but that the defendants recently made a wrongful claim that they were the owners of the house which they had let out to opposite party 2, son of opposite party 1 and they instituted a suit against) opposite party 2 for ejection and recovery of khas possession and they obtained a decree in that suit and by such action of the defendants the plaintiff's title has become clouded and it has become necessary for the plaintiff to have his title to the house declared and to have his possession therein confirmed and for issue of a permanent injunction against the defendants from executing their decrees. The suit being a suit for a declaration with consequential relief was valued in the plaint at Rs. 20. The defendants raised a preliminary question on the valuation and pecuniary jurisdiction of the Court. The Munsiff upon hearing the evidence on this issue came to the conclusion that in August 1916, the house had been bought from Sher Ali at Rs. 3700 and that after-wards a sum of Rs. 3080 was paid in full payment of the mortgage dues. Thereupon, the Munsif held that the value of the subject-matter of the suit exceeded Rs. 2000 and the suit could not be tried by him. A petition for amendment of the plaint was put in by the plaintiff praying that the prayer for declaration of title be deleted as an unnecessary prayer. The Munsif rejected that petition. In appeal, the learned District Judge allowed the amendment and thereafter came to the conclusion that the plaint as it stood was valued properly and the Munsiff had jurisdiction to try the suit Now, the prayers in the plaint are these: (1) that the plaintiff's title to the house be declared and his possession thereof be confirmed; (2) that the decree in the suit of 1980 obtained by the defendants was void and inoperative as against the plaintiff; (3) that a permanent injunction be issued against the defendants that they may never disturb the possession of the plaintiff.

2. What in effect the plaintiff wanted by his amendment was that his prayer (1) be deleted, viz. the declaration of his title and confirmation of possession, but he kept the other two prayers, viz., that the decree in the suit of 1930 obtained by the defendant against opposite party 2 should be declared void against him and an injunction should be passed against the defendants that they should never disturb the possession of the plaintiff. It is clear that these prayers cannot be granted to the plaintiff unless he proves his own title to the house and his possession thereof. If the prayer for declaration of title and confirmation of possession goes, these two prayers necessarily go away with it. The three are inseparable. No decree for a permanent injunction against the defendants not to disturb the plaintiff's possession can be granted unless the plaintiff proves his right and possession. The suit inspite of amendment is in effect a suit for declaration of the plaintiff's title to the house and permanent injunction against the defendants that they may not disturb his possession. The suit being a declaratory suit comes under Section 7 (4) (c) to obtain a declaratory decree or order where consequential relief is prayed and (d) to obtain an injunction. In such a suit, the amount of court-fee payable is computed according to the amount at which the relief sought is valued in the plaint. This was the Section up to 1935 when a clause was added, 'subject to the provision of Section 8 (c)'. Section 8 (c) is in these terms:

If the Court is of opinion that the subject-matter of any suit has been wrongly valued it may revise the valuation, determine the correct valuation and may hold such enquiry as it thinks fit for such purpose.

3. Now the Munsif held an enquiry and found that in 1916 a sum of Rs. 5700 had been paid to acquire the title to the house free of mortgage. It could hardly be said that the house, which was worth Rs. 5700 in 1916, was worth only Rs. 20 in 1935. The value of the house as the Munsif found must be much above Rs. 2000 and the Munsiff therefore had no jurisdiction to try the suit. The learned advocate for the plaintiff quoted a great many cases in support of his proposition that the plaintiff has the option in a declaratory suit to value the relief claimed and the Court has no right to question that valuation. The latest case on the point is that in Narayangunge Central Co-operative Sale and Supply Society Ltd. v. Mafizuddin Ahmed (1934) 21 AIR Cal 448. In that case all the previous oases were discussed. The conclusion of the Full Bench in that case was that:

Where in suits to obtain a declaratory decree or order where consequential relief is prayed for and in suits to obtain an injunction falling within Clauses (c) and (d), Sub-section (4), Section 7, Court-fees Act, the Court finds that the relief claimed has been under-valued by the plaintiff, the Court is entitled under Order 7, Rule 11 of the Coda to require the plaintiff to correct the valuation. But so long as there are no rules framed under Section 9, Suits Valuation Act, the Court would have no standard before it on which it may regard the plaintiff's valuation as an under-valuation and its power of creation would have to be exercised on that footing.

4. There can be no doubt that in many cases it is impossible for the Court on the facts stated to question the plaintiff's valuation. But there are again other cases where it Is quite easy to question the plaintiff's valuation. In the Full Bench case, there was a decree of Rs 11,000 odd against the plaintiff. He instituted a suit in the Munsiff's Court for a declaration that the said decree was void as against him and prayed for an injunction restraining the defendants from executing that decree against him. He valued the suit at Rs. 49. The Full Bench observed:

The value of the suit would depend upon the property of the plaintiff which was jeopardised by the decree and if the plaintiff had no property beyond Rs. 49 the suit was rightly valued.

5. They quoted the view of the Privy Council that the value of the property might be Rs. 1000 while the execution debt might be Rs. 10,000 that it is only if the execution debt is less than the value of the property that its amount affects the value of the suit. Now, in the present case there is no question as the plaintiff has stated in the plaint that his title to the house has become clouded and he wants a declaration of his title to the house and he wants a permanent injunction against the defendants restraining them from interfering with Ms possession. Here, there can be no doubts that the value of the injunction wanted by him is measured by the value of the house which was Rs. 5700 in 1916 and must be at least over Rs. 2000 in 1935. The Rule is made absolute and the order of the District Judge is set aside and that of the Munsiff restored with costs in this Court, hearing fee two gold mohurs. The plaint will be returned for presentation before the Subordinate Judge who will decide the actual value of the suit and demand court-fees accordingly.


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