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Chhatu Lal Shaw Vs. Panchanan Shaw and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1375 of 1951
Judge
Reported inAIR1953Cal755,57CWN563
ActsCourt-fees Act, 1870 - Section 7; ;Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 11
AppellantChhatu Lal Shaw
RespondentPanchanan Shaw and ors.
Appellant AdvocateSyama Charan Mitter, Adv.
Respondent AdvocateBenoy Bhusan Sen, Adv.
Cases ReferredBalaram Mandal v. Sahebjan Gazi
Excerpt:
- .....in suit. defendant 2 executed a kobala on 6-5-1949, in favour of defendant 1 in the present suit. the plaintiff's allegation is that (the kobala was obtained by fraud and undue influence and he prayed, first, for a declaration that this sale deed was void and secondly, for a permanent injunction restraining defendant 1 from interfering with the plaintiff's possession and thirdly, in the alternative, for an order by the court allowing the plaintiff to pre-empt. the relief for declaration was valued at rs. 20/-, the relief for injunction was valued at rs. 50/- and the relief for preemption was valued at rs. 100/-. the court-fees were paid accordingly. after the court passed an order that the proper valuation of the suit was rs. 6000/- and the court-fees should be paid thereupon, the.....
Judgment:
ORDER

1. This Rule was directed against an order of the learned Subordinate Judge of 24-Parganas by which he directed the plaintiff to pay 'ad valorem' court-fees on Rs. 6000/- on the plaint and refused to pass any final orders on the application filed by the plaintiff for amendment of the plaint.

2. The plaintiff along with defendant 2 and other co-sharers is in joint possession of the premises in suit. Defendant 2 executed a kobala on 6-5-1949, in favour of defendant 1 in the present suit. The plaintiff's allegation is that (the kobala was obtained by fraud and undue influence and he prayed, first, for a declaration that this sale deed was void and secondly, for a permanent injunction restraining defendant 1 from interfering with the plaintiff's possession and thirdly, in the alternative, for an order by the Court allowing the plaintiff to pre-empt. The relief for declaration was valued at Rs. 20/-, the relief for injunction was valued at Rs. 50/- and the relief for preemption was valued at Rs. 100/-. The court-fees were paid accordingly. After the Court passed an order that the proper valuation of the suit was Rs. 6000/- and the court-fees should be paid thereupon, the plaintiff made an application for amendment of the plaint by deleting the prayer for preemption. The learned Subordinate Judge held that the court-fees were payable in accordance with the provisions of Section 7(iv)(c). Court-fees Act, that the relief should be valued at Rs. 6000/- and that after the court-fees thereupon were paid, he would consider what orders should be passed on the application for amendment.

3. In the first place, we are clearly of opinion that? the learned Subordinate Judge failed to exercise his jurisdiction that was vested in him to pass an order on the prayer for amendment. When a plaintiff after making prayers of several kinds of relief wishes to abandon some of these with a view to save court-fees, the Court is bound to allow such application. Whether as the result of deletion of prayers for some reliefs, the suit fails or not is a matter which shall be decided at the time of the hearing of the suit. The plaintiff in asking for deletion of his prayer for certain reliefs takes that risk. We see no reason why the Court should refuse the plaintiff to withdraw his prayers for pre-emption.

4. We therefore, order that the application for amendment by deleting the prayer for pre-emption should be allowed.

5. The question that remains for consideration is what is the court-fee payable on the plaint after deletion of the prayer for pre-emption. Obviously the suit is one for declaration with consequential relief in the form of a permanent injunction. Ad valorem Court-fees are therefore payable; but it is open to the plaintiff to give his own valuation. Where there is an objective standard, for valuing the relief, the Court has the right to amend the valuation to the figure it thinks proper. If there is no objective standard, the plaintiff's own valuation will remain. The question is whether there is any objective standard for valuing the relief in this suit. In our opinion, as the plaintiff himself is in possession along with other co-sharers of the property in suit, there is no objective standard for valuing the relief he seeks. If he was out of possession altogether and was asking for delivery of possession, it would be quite a different matter. The distinction has been drawn in several cases of which mention may be made of the decision of this Court in the cases of - 'Bagala Nanda v. Sbrish Chandra', : AIR1939Cal278 ; - 'Mt. Deokali Kuari v. Mahadeo Prasad', AIR 1939 Pat 531 (B); - 'Ghulam Nabi v. Umar Bakhsh', AIR 1941 Lah 307 (C) and - 'Balaram Mandal v. Sahebjan Gazi', : AIR1950Cal85 (D). In our judgment it is obvious that when it is not known as to the portion of the property with regard to which there will be interference or whether there will be interference at all or not, the relief can only be valued at what the plaintiff subjectively thinks it is worth.

6. We notice in the present case that the plaintiff has not followed the correct mode of valuation. As was pointed out in the case reported in - ' : AIR1950Cal85 (D)', the correct mode of valuation in such a case is to put a single valuation, the option of valuing the relief resting with the plaintiff.

7. We therefore set aside the order passed by the learned Subordinate Judge fixing the valuation at Rs. 6000/- and order that the plaintiff be allowed to put his own valuation on the relief for declaration and for the prayer for permanent injunction which will remain in the plaint after the deletion of his prayer for pre-emption, and direct that Court-fees will be payable ad valorem on the value put by plaintiff.

8. The Rule is accordingly made absolute in the above terms with costs.


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