In the context of payment of appropriate court fee on a
memorandum of appeal, the Supreme Court in the case of Nemi Chand &
Anr. vs. The Edward Mills Co. Ltd. & Anr.AIR 1953 SC 28
, has held that for the purposes
of deciding whether the memorandum of appeal was properly stamped
according to the subject matter of the appeal, it was not open to the court
to canvass the question whether the suit with the second prayer for the
appointment of a receiver eliminated from it, fell within the mischief of the
proviso to Section 42 of the Specific Relief Act 1877. The Supreme Court
observed that such question relates to the merits of the appeal and not to
its proper institution.
In the aforesaid circumstances, it cannot be said that the valuation
and payment of court fees is either arbitrary or capricious, so as to warrant
a direction for revaluation and payment of deficit court fee. There is no
clear material available on record to indicate that the suit property was non
agricultural property. The Plaintiffs, in paragraph 18 of the plaint have
averred that the suit property is agricultural property. This statement has
been denied by the Petitioner - Defendant No. 12 who has claimed that
the present market value of the suit property is in the range of Rs.20,760/-
per sq. meter. On all such aspects, the onus was really upon the Petitioner
to produce cogent material, which onus, the Petitioner has failed to
discharge. Section 8 of the said Act applies in a situation where the court is
of the opinion that the subject matter of any suit has been wrongly valued
or if an application is made to the court for revision of any valuation made.
In such situation, the Court may revise the valuation and determine correct
valuation and may hold such enquiry as it thinks fit for such purpose. This
provision does not contemplate the holding of an enquiry, no sooner an
application is made to the court for revision of any valuation made. The
Petitioner is required to make out a prima facie case that revision of
valuation is warranted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11432 OF 2014
Mr. Aman Harishkumar Vij. V Smt. Shantabai Anandrao Patil and Ors. …
CORAM :- M. S. SONAK, J.
Dated: 13 April 2015
1] Rule. With the consent of and at the request of the learned
Counsels for the parties, Rule is made returnable forthwith.
2] This petition challenges Order dated 28 October 2014 made by the
16th Joint Civil Judge, Junior Division, Pune, holding that it has pecuniary
jurisdiction to try, entertain and decide Regular Civil Suit No.1490 of 2014
instituted by Respondent Nos. 1 to 21 (Original Plaintiffs).
3] The case set out by the Plaintiffs in the suit is that between the years
1972 and 1997, by means of several registered deeds and rectification
deeds, the Plaintiffs purchased large property comprising inter alia 18
plots, open spaces, internal roads and common areas from the original
vendors Bapu Gaikwad and Shankarrao Cornell. The original vendors
however, by registered Sale Deeds dated 10 February 2009 and 19 April
2011, have purported to sell to the Petitioner (original Defendant No. 12),
a portion of such large property admeasuring totally about 49 Ares
corresponding mainly to the areas occupied by open spaces, internal roads
and common areas. Such portion has been described as 'suit property' in
the plaint. Apprehending that the Petitioner may deal with the suit property,
the Plaintiffs have applied for declaration that they are the absolute owners
of the suit property and injunctive relief to restrain the Defendants from
interfering with the Plaintiffs possession of the suit property or from
creating any third party interest in respect of the same.
4] The Petitioner (original Defendant No. 12) by application dated 26
September 2014 urged the framing of preliminary issue as to pecuniary
jurisdiction and for directions to appropriately value the suit and pay deficit
court fees. The provisions contained in Order 7 Rule 11 and Section 9A of
the CPC were made reference to, in such application. The case as set out
in the said application is that the suit property is 'Non Agricultural Property'
and consequently ought to have been valued at Rs.1,03,59,24,000/-.
Further, the Plaintiffs ought to have paid the maximum court fee of
Rs.3,00,000/- thereon. Upon such correct valuation and payment of deficit
court fees, the Civil Judge, Junior Division at Pune, where the suit is
instituted, would cease to have pecuniary jurisdiction in the matter. It was
further urged that enquiry be initiated under Section 8 of The Bombay
Court Fees Act, 1959 ('said Act') in the matter of valuation of the suit
property.
5] By the impugned order dated 28 October 2014, the learned Civil
Judge has held that the suit property is an 'Agricultural Property' and
consequently there is no fault, either in the valuation of the suit or in the
matter of payment of court fees. Hence, the present petition.
6] Mr. P. S. Dani, the learned Senior Advocate for the Petitioner whilst
reiterating the case set out in the application dated 26 September 2014
urged that the Petitioner be permitted to raise a more fundamental
objection in the matters of valuation and payment of deficit court fee. In
this regard, Mr. Dani submitted that since the plaint contains specific
averments to the effect that the two Sale Deeds dated 10 February 2009
and 19 April 2011 are null and void, the suit, in substance, is nothing but a
suit for avoidance of the two Deeds. By means of clever drafting and
astute pleadings, the Plaintiffs cannot avoid proper valuation and
payment of court fees. If the substance of the suit is taken into
consideration, then the valuation of the suit and payment of court fees
thereon had to abide by the provisions contained in Section 6(iv)(ha) of the
said Act. Further, Mr. Dani submitted that prayer clause (b) of the plaint,
which seeks a declaration that the Plaintiffs are absolute owners of the suit
property, implicitly seeks declaration that the two Sale Deeds on basis of
which the Petitioner claims title to the suit property, are null and void.
Besides, in paragraphs 13, 15 and 16 of the plaint, there are clear
averments that the two Sale Deeds are null and void. All this, leave no
matter of doubt that the suit, in substance, is for the purposes of
avoidance of the two Sale Deeds and consequently exigible to court fees
under the provisions of Section 6 (iv) (ha) of the said Act.
7] Mr. S. S. Patwardhan, the learned counsel for Respondent No. 1 -
original Plaintiff, submitted that the valuation of the plaint, in the present
case, was made in accordance with the Suits Valuation Act, 1887 and the
Rules of 1983 made thereunder. Mr. Patwardhan submitted that the suit in
the present case was a suit for declaration of ownership and was therefore
covered by the provisions contained in Section 6 (d) of the said Act. Mr.
Patwardhan further submitted that the onus was upon the Petitioner to
establish that the suit property was indeed a non-agricultural property and
that the valuation was not proper. Such onus, the Petitioner having failed
to discharge, the learned Civil Judge was entirely right in making the
impugned order.
8] Mr. Patwardhan further submitted that this was not a suit for
declaration that two Sale Deeds are void, because, such declaration was
not at all necessary for the purpose of Plaintiffs' case. The Plaintiffs having
consciously decided to seek only prayer for declaration of title to the suit
property, it was not open to accept any submission that some relief must
be deemed to have been sought for by the Plaintiffs and on the said basis,
to require the Plaintiffs to value the suit and pay additional court fees. If,
the Civil Judge were to come to the conclusion that the reliefs prayed for
by the Plaintiffs are incomplete or cannot be granted in the form in which
they have been applied for, the suit may be dismissed on merits. However,
that by itself, is not a ground to allege either under-valuation or some
deficiency in the payment of court-fees.
9] Both the learned counsels placed reliance upon certain decisions, to
which reference shall be made in the course of this Judgment and Order.
10] The rival contentions now fall for determination.
11] The reliefs applied for in the plaint are as follows:
“(a) The present suit may kindly be decreed with
exemplary costs.
(b) The Hon'ble Court be pleased to declare that the
Plaintiff no.1 to 20 are the absolute owners of the Suit
Property.
(c) The Defendant nos.1 to 13 through themselves or
their agent/s or their representative/s, servant/s or any
person/s claiming through them may kindly be
prohibited/restrained by a decree of permanent
injunction from disturbing and/or obstructing the
possession of the Plaintiffs over the Suit Property in
any manner whatsoever.
(d) The Defendant nos.1 to 13 through themselves or
their agent/s or their representative/s, servant/s or any
person/s claiming through them may kindly be
prohibited/restrained by a decree of permanent
injunction from creating any third interests, or entering
into any agreement/ transaction/ agreement/
documents or dealing with the Suit Property or any
part thereof in favour of any third person/s in any
manner whatsoever.
(e) Interim and ad-interim relief's in terms of prayer
clause (c) and (d) above may kindly be granted during
the pendency of the present suit.
(f) Any other just and equitable order as deemed fit in the
interest of justice and equity may kindly be passed.”
12] Since Mr. Dani, emphasised upon the pleadings in paragraphs 13,
15 and 16 of the plaint, the same are transcribed below for convenience of
reference :
“13. At the outset, the Plaintiffs submit that the aforesaid
documents are illegal, invalid, void ab-initio, no-nest
and bad in law. The Plaintiffs submit that as the title in
respect of the Said Property including the Suit
Property had already been absolutely transferred
and/or vested as aforesaid neither Mr. Bapu Sonu
Gaikwad nor any person/s claiming through him has
any authority and/or right to execute any document in
respect of any part of the Suit Property in any manner
whatsoever. It is submitted that neither Mr. Bapu
Sonu Gaikwad nor any person/s claiming through him
had any transferable interest/ right in the Suit Property
or any part thereof as the same had already been
legally transferred/sold by them for/ against
consideration in favour of the Plaintiffs or their
predecessor in title as aforesaid. Therefore, no
interest and/or right of whatsoever nature has been
created in favour of Defendant Nos. 12 and 13 in
respect of the Suit Property or any part thereof.
Further, the Defendants have no concern whatsoever
and/or in respect of the Suit Property or any part
thereof in any manner whatsoever.
15. The Plaintiffs submit that as aforesaid Mr. Bapu Sonu
Gaikwad and Mr. Shankarrao M. Cornell had
absolutely sold and/or transferred the Said Property.
However, the names of Mr.Bapu Sonu Gaikwad and
Mr. Shankarrao M. Cornell were not deleted and/or
bracated from the revenue record of the Suit Property.
It is submitted that taking undue advantage of the
same, Mr.Bapu Sonu Gaikwad has executed bogus,
illegal, void-ab-initio and sham document in favour of
Defendant no. 12. It is submitted that the Defendant
nos. 12 has also got his names mutated in the
revenue record of the Suit Property on the basis of the
said illegal, no-nest and void documents. It is
submitted that it is settled principle of law that revenue
entries do not confer any title in respect of the
immovable property. Further, the same also cannot
take away the lawful title/ownership of any person.
16. It is submitted that the Defendants are entering into
further illegal transactions on the basis of the
aforesaid illegal, void documents and mutations. The
Plaintiffs submit that the Defendants with malafide
intentions are creating further complications by taking
undue advantage of the mutation of their names in the
revenue record of the Suit Property. The Plaintiffs
submit that the Defendant nos. 1 to 13 are also
threatening and trying to obstruct the peaceful
possession of the Plaintiffs over the Suit Property. In
such circumstances, the Plaintiffs are constrained to
file the present suit for relief of declaration of
ownership and for permanent injunctions.”
13] Section 6 of the said Act provides for computation of fees payable in
certain suits. Mr. Patwardhan, the learned counsel for the Respondent No.
1 (original Plaintiff) has placed reliance upon the provisions contained in
Section 6 (iv)(d) of the said Act, which read thus :
“for ownership etc. of immovable property, etc.
In suits for declaration in respect of ownership, or nature of
tenancy, title, tenure, right, lease, freedom or exemption from,
or non-ability to, attachment with or without sale or other
attributes, of immovable property, such as a declaration that
certain land is personal property of the Ruler of any former
Indian State or public trust property or property of any class or
community one-fourth of ad valorem fee leviable for a suit for
possession on the basis of title of the subject matter, subject to
a minimum fee of [one hundred rupees]:
Provided that if the question is of attachment with or without
sale the amount of fee shall be the ad valorem fee according to
the value of the property sought to be protected from
attachment with or without sale or the fee of [sixty rupees],
whichever is less :
Provided further that, whenever the Defendant is or claims
under or through a limited owner, the amount of fee shall be
[one third] of such ad valorem fee, subject to the minimum fee
specified above:
Provided also that, in any of the cases falling under this
clause except its first proviso, when in addition any
consequential relief other than possession is sought the
amount of fee shall be one-half of ad valorem fee and when the
consequential reliefs also sought include a relief for
possession the amount of fee shall be the full ad valorem fee”;
14] Mr. Dani, the learned Senior Advocate for the Petitioner, on the other
hand, has placed emphasis upon the provisions contained in Section 6 (iv)
(ha) of the said Act, which read thus :
“for avoidance of sale, contract for sale, etc.
In suits for declaration that any sale, or contract for sale or
termination of contract for sale, of any moveable or immovable
property is void – [one half] of ad valorem fee leviable on the
value of the property;”
15] In the present case, there is no relief seeking declaration that the
two Sale Deeds are void. The question which therefore arises is whether
the suit, in substance, is nothing but a suit seeking declaration that the two
Sale Deeds are void, notwithstanding the absence of specific prayer in this
regard. Mr. Dani has also urged that in the absence of any relief of
declaration that the two Sale Deeds are void, the Plaintiffs are not entitled
to obtain any other reliefs as may have been prayed for in the suit.
Further, Mr. Dani submitted that the consequence of grant of relief in terms
of prayer clause (b) i.e. declaration that the Plaintiffs are owners of the suit
property, might result in the declaration that the two Sale Deeds are null
and void.
16] Relying upon the decisions of this Court in the case of Prism Realty,
Pune vs. Govind Yashwant Khalade & Ors.
1
and Bai Radhabai Vasudeo
Jethabhoy vs. Nandlal Lakhmichand Chanana2
and Lakhiram Ramdas vs.
M/s. Vidyut Cable and Rubber Industries3
, Mr. Dani contended that mere
clever drafting or an astute pleadings cannot confer jurisdiction upon a
court to try a suit or evade appropriate valuation and payment of court
fees.
17] The decision in the case of Prism Realty (supra) is of no real
assistance to the issue involved in the present case. In the said case, the
specific relief applied for was declaration that certain documents were
bogus, illegal and not binding upon the Plaintiffs. In this context, this Court,
by distinguishing the decision of the Apex Court in the case of Suhrid
Singh alias Sardool Singh vs. Randhir Singh & Ors.4
held that in the light
of special provisions contained in Section 6 (iv)(ha) of the said Act, the
court fees were required to be computed on the basis that the suit was for
declaration that the document in question was void, notwithstanding that
1 2015 (2) Mh. L.J. 472
2 1956 (Vol. LIX) Bombay L.R. 127
3 1963 (Vol LXV) Bombay L.R. 604
4 AIR 2010 SC 2807
the Plaintiffs were not parties to the execution of the said documents. Such
issue, does not arise in the present case, because the Plaintiffs in the
present case, have not applied for any declaration to the effect that the
documents in question are void.
18] The decisions in the cases of Bai Radhabai (supra) and Lakhiram
Ramdas (supra) were cases where relief of possession was not
specifically prayed for in order to evade payment of court fees upon a
normal suit seeking recovery of possession, but rather relief of mandatory
injunction requiring the Defendant to remove himself from the premises
was made, in order to justify payment of lesser court fees. In this context,
this Court held that where the prayer clause is cleverly worded but in effect
it amounts to a prayer for possession, it is the duty of the courts to see that
requisite court fees are paid for on the basis that the suit, in substance, is
one for recovery of possession and not mere injunction.
19] In this case however, the Plaintiffs are quite clear in the structure of
their plaint, in that, they make reference to the two Sale Deeds in
question, but do not seek any declaration that the same are null and void.
It is the specific case of the Plaintiffs, as articulated by their counsel Mr.
Patwardhan that they do not need any declaration that the two Sale Deeds
are void and the Plaintiffs would be satisfied with the declaration that they
are the absolute owners in respect of the suit property. In fact, Mr.
Patwardhan placed reliance upon the decision of the Hon'ble Apex Court in
the case of Prem Singh & Ors. vs. Birbal & Ors.
5, to contend that when a
document is void ab initio, a decree for setting aside the same would not
be necessary as the same is non est in the eyes of law, as it would be a
nullity. This is hardly the occasion to decide upon the question as to
whether a structure of the suit as framed is proper or not. This is also not
the occasion for deciding whether the reliefs as prayed for in the plaint are
complete in themselves or whether the reliefs as prayed for can never be
granted by the Civil Courts in the absence of specific prayer seeking
declaration that the two Sale Deeds are null and void. If ultimately, the Civil
Court comes to the conclusion that the basic structure of the suit is
defective, or that the reliefs as prayed for cannot be granted or that there is
omission to seek some important relief, without which no other relief as
prayed for can be granted, the same might result in dismissal of the suit.
However, that by itself is no ground to hold that the suit, in substance, is
one seeking declaration that the two Sale Deeds are void. This is a case
where consciously, the Plaintiffs have chosen not to seek declaration that
the two Sale Deeds are null and void. Therefore, the Plaintiffs are very
clearly prepared to face the consequences of their conscious decision. In
such circumstances, it cannot be said that this is a case of clever drafting
5 (2006) 5 SCC 353
or astute pleadings, only for the purposes of evading payment of court fee
or conferring jurisdiction upon a court, which it otherwise may not possess.
The decisions in the cases of Bai Radhabai (supra) and Lakhiram Ramdas
(supra) are distinguishable, in as much as the relief of seeking recovery of
possession was camouflaged by seeking a mandatory injunction, requiring
the Defendant to remove himself from the premises in question.
20] It is settled position in law that the nature of the suit has to be
determined by the averments in the plaint and plaint alone. The defence
that may be raised by the Defendants, is quite irrelevant in such a context.
A fiscal statute like the Court Fees Act is required to be construed strictly.
In case of any doubt or ambiguity, the statute has to be construed in favour
of the subject. The principle is that if a person to be taxed comes within
the letter of the law, he must be taxed, however great the hardship may be.
Conversely if a person does not come within the letter of the law, is free to
frame the structure of his suit, as would visit him with minimum burden of
court fees. Further statutes like the Court Fees Act, really do not deal with
the substantive rights and therefore, in the matters of construction of such
statutes, the interpretation normally applicable in case of statutes dealing
with procedure, has to be preferred. In a situation where the plaint is not
ambiguous and the Plaintiffs expressly claim reliefs in a particular format, it
is not for the court to force upon the Plaintiffs a frame of a suit which they
are not willing to adopt. Considerations of the frame of the suit for the
purposes of court fee and for that purposes of decision on the merits of the
suit, have to be kept severally apart. If the court, upon consideration of the
matter on merits, comes to the conclusion that the frame of the suit is
defective or if the reliefs as prayed for cannot be granted for want of
further consequential reliefs then it is for the Plaintiffs to bear such
consequences. However, in determining the court fee payable, the court
should not be influenced by consequences which might, in its opinion,
follow from the Plaintiffs action.
21] In the context of payment of appropriate court fee on a
memorandum of appeal, the Supreme Court in the case of Nemi Chand &
Anr. vs. The Edward Mills Co. Ltd. & Anr.
6
, has held that for the purposes
of deciding whether the memorandum of appeal was properly stamped
according to the subject matter of the appeal, it was not open to the court
to canvass the question whether the suit with the second prayer for the
appointment of a receiver eliminated from it, fell within the mischief of the
proviso to Section 42 of the Specific Relief Act 1877. The Supreme Court
observed that such question relates to the merits of the appeal and not to
its proper institution.
6 AIR 1953 SC 28
22] Accordingly, in the facts and circumstances of the present case, the
submissions of Mr. Dani that the present suit is essentially a suit to declare
that the two Sale Deeds are void, cannot be accepted.
23] Normally, in such matters, valuation disclosed by the Plaintiff or the
amount of court fees upon the relief claimed in the plaint should be
accepted as correct. This however, does not preclude the court from
examining if the valuation on the averments in the plaint is arbitrary or
capricious. If, on the perusal of the plaint, the court is prima facie satisfied
that the Plaintiff has not been fair and valued the suit and the reliefs
arbitrarily, the court is not precluded from directing the Plaintiff to value the
suit properly and to pay appropriate court fees thereon. In the present
case, the Plaintiffs have made the averments in paragraph 18 of the plaint,
in respect of valuation and payment of court fee. The same read as under:
“18. The Suit Property being agricultural land assessed to
the land revenue. The plaintiffs submit that the present suit has
been valued at Rs.142/- i.e. the 200 times of the assessment of
the Suit Property for the purpose of relief of declaration. The
plaintiff has also prayed for permanent injunctions and therefore
the plaintiffs have valued the present suit at Rs.1000 +
Rs.1,000/- for the purpose of permanent injunctions. Thus the
plaintiff has valued the present suit at Rs.142/- + 1,000/- +
1,000/- and has paid appropriate court fees stamp fees
thereon. In case any additional court fees is required to be paid
by the plaintiff then the plaintiff is ready to pay the same as and
when directed by the Hon'ble Court.”
24] The suit as framed, seeks declaration that the Plaintiffs are absolute
owners of the suit property [prayer clause (b)]. In addition the plaint seeks
relief of injunction as against Defendant Nos. 1 to 13, which includes the
Petitioner. In terms of Section 6(iv)(d), suit for declaration in respect of
ownership for title is exigible to court fee of one-fourth ad valorem fee
leviable for a suit for possession on the basis of title of the subject matter,
subject to minimum fee of one hundred rupees. The third proviso provides
that when in addition any consequential relief other than possession is
sought the amount of fee shall be one-half of ad valorem fee and when the
consequential reliefs are also sought to include relief for possession, the
amount of fee shall be full ad valorem fee. Further, Section 6(v) deals with
suits for possession of lands, houses and gardens. This in turn, has to be
read and construed with the provisions of the Suits Valuation Act, 1887 and
the Rules made thereunder.
25] In the aforesaid circumstances, it cannot be said that the valuation
and payment of court fees is either arbitrary or capricious, so as to warrant
a direction for revaluation and payment of deficit court fee. There is no
clear material available on record to indicate that the suit property was non
agricultural property. The Plaintiffs, in paragraph 18 of the plaint have
averred that the suit property is agricultural property. This statement has
been denied by the Petitioner - Defendant No. 12 who has claimed that
the present market value of the suit property is in the range of Rs.20,760/-
per sq. meter. On all such aspects, the onus was really upon the Petitioner
to produce cogent material, which onus, the Petitioner has failed to
discharge. Section 8 of the said Act applies in a situation where the court is
of the opinion that the subject matter of any suit has been wrongly valued
or if an application is made to the court for revision of any valuation made.
In such situation, the Court may revise the valuation and determine correct
valuation and may hold such enquiry as it thinks fit for such purpose. This
provision does not contemplate the holding of an enquiry, no sooner an
application is made to the court for revision of any valuation made. The
Petitioner is required to make out a prima facie case that revision of
valuation is warranted.
26] Accordingly, Rule is discharged. In the facts and circumstances of
the case, there shall be no order as to costs.
27] It is clarified that the observations made in this judgment and order
are for the limited purpose of deciding whether the valuation of the suit and
payment of court fee thereon was in any manner deficient. Accordingly,
the learned Civil Judge to decide the suit on merits, without being
influenced by the observations made in this judgment and order for the
aforesaid limited purposes.
(M. S. SONAK, J.)
memorandum of appeal, the Supreme Court in the case of Nemi Chand &
Anr. vs. The Edward Mills Co. Ltd. & Anr.AIR 1953 SC 28
, has held that for the purposes
of deciding whether the memorandum of appeal was properly stamped
according to the subject matter of the appeal, it was not open to the court
to canvass the question whether the suit with the second prayer for the
appointment of a receiver eliminated from it, fell within the mischief of the
proviso to Section 42 of the Specific Relief Act 1877. The Supreme Court
observed that such question relates to the merits of the appeal and not to
its proper institution.
In the aforesaid circumstances, it cannot be said that the valuation
and payment of court fees is either arbitrary or capricious, so as to warrant
a direction for revaluation and payment of deficit court fee. There is no
clear material available on record to indicate that the suit property was non
agricultural property. The Plaintiffs, in paragraph 18 of the plaint have
averred that the suit property is agricultural property. This statement has
been denied by the Petitioner - Defendant No. 12 who has claimed that
the present market value of the suit property is in the range of Rs.20,760/-
per sq. meter. On all such aspects, the onus was really upon the Petitioner
to produce cogent material, which onus, the Petitioner has failed to
discharge. Section 8 of the said Act applies in a situation where the court is
of the opinion that the subject matter of any suit has been wrongly valued
or if an application is made to the court for revision of any valuation made.
In such situation, the Court may revise the valuation and determine correct
valuation and may hold such enquiry as it thinks fit for such purpose. This
provision does not contemplate the holding of an enquiry, no sooner an
application is made to the court for revision of any valuation made. The
Petitioner is required to make out a prima facie case that revision of
valuation is warranted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11432 OF 2014
Mr. Aman Harishkumar Vij. V Smt. Shantabai Anandrao Patil and Ors. …
CORAM :- M. S. SONAK, J.
Dated: 13 April 2015
1] Rule. With the consent of and at the request of the learned
Counsels for the parties, Rule is made returnable forthwith.
2] This petition challenges Order dated 28 October 2014 made by the
16th Joint Civil Judge, Junior Division, Pune, holding that it has pecuniary
jurisdiction to try, entertain and decide Regular Civil Suit No.1490 of 2014
instituted by Respondent Nos. 1 to 21 (Original Plaintiffs).
3] The case set out by the Plaintiffs in the suit is that between the years
1972 and 1997, by means of several registered deeds and rectification
deeds, the Plaintiffs purchased large property comprising inter alia 18
plots, open spaces, internal roads and common areas from the original
vendors Bapu Gaikwad and Shankarrao Cornell. The original vendors
however, by registered Sale Deeds dated 10 February 2009 and 19 April
2011, have purported to sell to the Petitioner (original Defendant No. 12),
a portion of such large property admeasuring totally about 49 Ares
corresponding mainly to the areas occupied by open spaces, internal roads
and common areas. Such portion has been described as 'suit property' in
the plaint. Apprehending that the Petitioner may deal with the suit property,
the Plaintiffs have applied for declaration that they are the absolute owners
of the suit property and injunctive relief to restrain the Defendants from
interfering with the Plaintiffs possession of the suit property or from
creating any third party interest in respect of the same.
4] The Petitioner (original Defendant No. 12) by application dated 26
September 2014 urged the framing of preliminary issue as to pecuniary
jurisdiction and for directions to appropriately value the suit and pay deficit
court fees. The provisions contained in Order 7 Rule 11 and Section 9A of
the CPC were made reference to, in such application. The case as set out
in the said application is that the suit property is 'Non Agricultural Property'
and consequently ought to have been valued at Rs.1,03,59,24,000/-.
Further, the Plaintiffs ought to have paid the maximum court fee of
Rs.3,00,000/- thereon. Upon such correct valuation and payment of deficit
court fees, the Civil Judge, Junior Division at Pune, where the suit is
instituted, would cease to have pecuniary jurisdiction in the matter. It was
further urged that enquiry be initiated under Section 8 of The Bombay
Court Fees Act, 1959 ('said Act') in the matter of valuation of the suit
property.
5] By the impugned order dated 28 October 2014, the learned Civil
Judge has held that the suit property is an 'Agricultural Property' and
consequently there is no fault, either in the valuation of the suit or in the
matter of payment of court fees. Hence, the present petition.
6] Mr. P. S. Dani, the learned Senior Advocate for the Petitioner whilst
reiterating the case set out in the application dated 26 September 2014
urged that the Petitioner be permitted to raise a more fundamental
objection in the matters of valuation and payment of deficit court fee. In
this regard, Mr. Dani submitted that since the plaint contains specific
averments to the effect that the two Sale Deeds dated 10 February 2009
and 19 April 2011 are null and void, the suit, in substance, is nothing but a
suit for avoidance of the two Deeds. By means of clever drafting and
astute pleadings, the Plaintiffs cannot avoid proper valuation and
payment of court fees. If the substance of the suit is taken into
consideration, then the valuation of the suit and payment of court fees
thereon had to abide by the provisions contained in Section 6(iv)(ha) of the
said Act. Further, Mr. Dani submitted that prayer clause (b) of the plaint,
which seeks a declaration that the Plaintiffs are absolute owners of the suit
property, implicitly seeks declaration that the two Sale Deeds on basis of
which the Petitioner claims title to the suit property, are null and void.
Besides, in paragraphs 13, 15 and 16 of the plaint, there are clear
averments that the two Sale Deeds are null and void. All this, leave no
matter of doubt that the suit, in substance, is for the purposes of
avoidance of the two Sale Deeds and consequently exigible to court fees
under the provisions of Section 6 (iv) (ha) of the said Act.
7] Mr. S. S. Patwardhan, the learned counsel for Respondent No. 1 -
original Plaintiff, submitted that the valuation of the plaint, in the present
case, was made in accordance with the Suits Valuation Act, 1887 and the
Rules of 1983 made thereunder. Mr. Patwardhan submitted that the suit in
the present case was a suit for declaration of ownership and was therefore
covered by the provisions contained in Section 6 (d) of the said Act. Mr.
Patwardhan further submitted that the onus was upon the Petitioner to
establish that the suit property was indeed a non-agricultural property and
that the valuation was not proper. Such onus, the Petitioner having failed
to discharge, the learned Civil Judge was entirely right in making the
impugned order.
8] Mr. Patwardhan further submitted that this was not a suit for
declaration that two Sale Deeds are void, because, such declaration was
not at all necessary for the purpose of Plaintiffs' case. The Plaintiffs having
consciously decided to seek only prayer for declaration of title to the suit
property, it was not open to accept any submission that some relief must
be deemed to have been sought for by the Plaintiffs and on the said basis,
to require the Plaintiffs to value the suit and pay additional court fees. If,
the Civil Judge were to come to the conclusion that the reliefs prayed for
by the Plaintiffs are incomplete or cannot be granted in the form in which
they have been applied for, the suit may be dismissed on merits. However,
that by itself, is not a ground to allege either under-valuation or some
deficiency in the payment of court-fees.
9] Both the learned counsels placed reliance upon certain decisions, to
which reference shall be made in the course of this Judgment and Order.
10] The rival contentions now fall for determination.
11] The reliefs applied for in the plaint are as follows:
“(a) The present suit may kindly be decreed with
exemplary costs.
(b) The Hon'ble Court be pleased to declare that the
Plaintiff no.1 to 20 are the absolute owners of the Suit
Property.
(c) The Defendant nos.1 to 13 through themselves or
their agent/s or their representative/s, servant/s or any
person/s claiming through them may kindly be
prohibited/restrained by a decree of permanent
injunction from disturbing and/or obstructing the
possession of the Plaintiffs over the Suit Property in
any manner whatsoever.
(d) The Defendant nos.1 to 13 through themselves or
their agent/s or their representative/s, servant/s or any
person/s claiming through them may kindly be
prohibited/restrained by a decree of permanent
injunction from creating any third interests, or entering
into any agreement/ transaction/ agreement/
documents or dealing with the Suit Property or any
part thereof in favour of any third person/s in any
manner whatsoever.
(e) Interim and ad-interim relief's in terms of prayer
clause (c) and (d) above may kindly be granted during
the pendency of the present suit.
(f) Any other just and equitable order as deemed fit in the
interest of justice and equity may kindly be passed.”
12] Since Mr. Dani, emphasised upon the pleadings in paragraphs 13,
15 and 16 of the plaint, the same are transcribed below for convenience of
reference :
“13. At the outset, the Plaintiffs submit that the aforesaid
documents are illegal, invalid, void ab-initio, no-nest
and bad in law. The Plaintiffs submit that as the title in
respect of the Said Property including the Suit
Property had already been absolutely transferred
and/or vested as aforesaid neither Mr. Bapu Sonu
Gaikwad nor any person/s claiming through him has
any authority and/or right to execute any document in
respect of any part of the Suit Property in any manner
whatsoever. It is submitted that neither Mr. Bapu
Sonu Gaikwad nor any person/s claiming through him
had any transferable interest/ right in the Suit Property
or any part thereof as the same had already been
legally transferred/sold by them for/ against
consideration in favour of the Plaintiffs or their
predecessor in title as aforesaid. Therefore, no
interest and/or right of whatsoever nature has been
created in favour of Defendant Nos. 12 and 13 in
respect of the Suit Property or any part thereof.
Further, the Defendants have no concern whatsoever
and/or in respect of the Suit Property or any part
thereof in any manner whatsoever.
15. The Plaintiffs submit that as aforesaid Mr. Bapu Sonu
Gaikwad and Mr. Shankarrao M. Cornell had
absolutely sold and/or transferred the Said Property.
However, the names of Mr.Bapu Sonu Gaikwad and
Mr. Shankarrao M. Cornell were not deleted and/or
bracated from the revenue record of the Suit Property.
It is submitted that taking undue advantage of the
same, Mr.Bapu Sonu Gaikwad has executed bogus,
illegal, void-ab-initio and sham document in favour of
Defendant no. 12. It is submitted that the Defendant
nos. 12 has also got his names mutated in the
revenue record of the Suit Property on the basis of the
said illegal, no-nest and void documents. It is
submitted that it is settled principle of law that revenue
entries do not confer any title in respect of the
immovable property. Further, the same also cannot
take away the lawful title/ownership of any person.
16. It is submitted that the Defendants are entering into
further illegal transactions on the basis of the
aforesaid illegal, void documents and mutations. The
Plaintiffs submit that the Defendants with malafide
intentions are creating further complications by taking
undue advantage of the mutation of their names in the
revenue record of the Suit Property. The Plaintiffs
submit that the Defendant nos. 1 to 13 are also
threatening and trying to obstruct the peaceful
possession of the Plaintiffs over the Suit Property. In
such circumstances, the Plaintiffs are constrained to
file the present suit for relief of declaration of
ownership and for permanent injunctions.”
13] Section 6 of the said Act provides for computation of fees payable in
certain suits. Mr. Patwardhan, the learned counsel for the Respondent No.
1 (original Plaintiff) has placed reliance upon the provisions contained in
Section 6 (iv)(d) of the said Act, which read thus :
“for ownership etc. of immovable property, etc.
In suits for declaration in respect of ownership, or nature of
tenancy, title, tenure, right, lease, freedom or exemption from,
or non-ability to, attachment with or without sale or other
attributes, of immovable property, such as a declaration that
certain land is personal property of the Ruler of any former
Indian State or public trust property or property of any class or
community one-fourth of ad valorem fee leviable for a suit for
possession on the basis of title of the subject matter, subject to
a minimum fee of [one hundred rupees]:
Provided that if the question is of attachment with or without
sale the amount of fee shall be the ad valorem fee according to
the value of the property sought to be protected from
attachment with or without sale or the fee of [sixty rupees],
whichever is less :
Provided further that, whenever the Defendant is or claims
under or through a limited owner, the amount of fee shall be
[one third] of such ad valorem fee, subject to the minimum fee
specified above:
Provided also that, in any of the cases falling under this
clause except its first proviso, when in addition any
consequential relief other than possession is sought the
amount of fee shall be one-half of ad valorem fee and when the
consequential reliefs also sought include a relief for
possession the amount of fee shall be the full ad valorem fee”;
14] Mr. Dani, the learned Senior Advocate for the Petitioner, on the other
hand, has placed emphasis upon the provisions contained in Section 6 (iv)
(ha) of the said Act, which read thus :
“for avoidance of sale, contract for sale, etc.
In suits for declaration that any sale, or contract for sale or
termination of contract for sale, of any moveable or immovable
property is void – [one half] of ad valorem fee leviable on the
value of the property;”
15] In the present case, there is no relief seeking declaration that the
two Sale Deeds are void. The question which therefore arises is whether
the suit, in substance, is nothing but a suit seeking declaration that the two
Sale Deeds are void, notwithstanding the absence of specific prayer in this
regard. Mr. Dani has also urged that in the absence of any relief of
declaration that the two Sale Deeds are void, the Plaintiffs are not entitled
to obtain any other reliefs as may have been prayed for in the suit.
Further, Mr. Dani submitted that the consequence of grant of relief in terms
of prayer clause (b) i.e. declaration that the Plaintiffs are owners of the suit
property, might result in the declaration that the two Sale Deeds are null
and void.
16] Relying upon the decisions of this Court in the case of Prism Realty,
Pune vs. Govind Yashwant Khalade & Ors.
1
and Bai Radhabai Vasudeo
Jethabhoy vs. Nandlal Lakhmichand Chanana2
and Lakhiram Ramdas vs.
M/s. Vidyut Cable and Rubber Industries3
, Mr. Dani contended that mere
clever drafting or an astute pleadings cannot confer jurisdiction upon a
court to try a suit or evade appropriate valuation and payment of court
fees.
17] The decision in the case of Prism Realty (supra) is of no real
assistance to the issue involved in the present case. In the said case, the
specific relief applied for was declaration that certain documents were
bogus, illegal and not binding upon the Plaintiffs. In this context, this Court,
by distinguishing the decision of the Apex Court in the case of Suhrid
Singh alias Sardool Singh vs. Randhir Singh & Ors.4
held that in the light
of special provisions contained in Section 6 (iv)(ha) of the said Act, the
court fees were required to be computed on the basis that the suit was for
declaration that the document in question was void, notwithstanding that
1 2015 (2) Mh. L.J. 472
2 1956 (Vol. LIX) Bombay L.R. 127
3 1963 (Vol LXV) Bombay L.R. 604
4 AIR 2010 SC 2807
the Plaintiffs were not parties to the execution of the said documents. Such
issue, does not arise in the present case, because the Plaintiffs in the
present case, have not applied for any declaration to the effect that the
documents in question are void.
18] The decisions in the cases of Bai Radhabai (supra) and Lakhiram
Ramdas (supra) were cases where relief of possession was not
specifically prayed for in order to evade payment of court fees upon a
normal suit seeking recovery of possession, but rather relief of mandatory
injunction requiring the Defendant to remove himself from the premises
was made, in order to justify payment of lesser court fees. In this context,
this Court held that where the prayer clause is cleverly worded but in effect
it amounts to a prayer for possession, it is the duty of the courts to see that
requisite court fees are paid for on the basis that the suit, in substance, is
one for recovery of possession and not mere injunction.
19] In this case however, the Plaintiffs are quite clear in the structure of
their plaint, in that, they make reference to the two Sale Deeds in
question, but do not seek any declaration that the same are null and void.
It is the specific case of the Plaintiffs, as articulated by their counsel Mr.
Patwardhan that they do not need any declaration that the two Sale Deeds
are void and the Plaintiffs would be satisfied with the declaration that they
are the absolute owners in respect of the suit property. In fact, Mr.
Patwardhan placed reliance upon the decision of the Hon'ble Apex Court in
the case of Prem Singh & Ors. vs. Birbal & Ors.
5, to contend that when a
document is void ab initio, a decree for setting aside the same would not
be necessary as the same is non est in the eyes of law, as it would be a
nullity. This is hardly the occasion to decide upon the question as to
whether a structure of the suit as framed is proper or not. This is also not
the occasion for deciding whether the reliefs as prayed for in the plaint are
complete in themselves or whether the reliefs as prayed for can never be
granted by the Civil Courts in the absence of specific prayer seeking
declaration that the two Sale Deeds are null and void. If ultimately, the Civil
Court comes to the conclusion that the basic structure of the suit is
defective, or that the reliefs as prayed for cannot be granted or that there is
omission to seek some important relief, without which no other relief as
prayed for can be granted, the same might result in dismissal of the suit.
However, that by itself is no ground to hold that the suit, in substance, is
one seeking declaration that the two Sale Deeds are void. This is a case
where consciously, the Plaintiffs have chosen not to seek declaration that
the two Sale Deeds are null and void. Therefore, the Plaintiffs are very
clearly prepared to face the consequences of their conscious decision. In
such circumstances, it cannot be said that this is a case of clever drafting
5 (2006) 5 SCC 353
or astute pleadings, only for the purposes of evading payment of court fee
or conferring jurisdiction upon a court, which it otherwise may not possess.
The decisions in the cases of Bai Radhabai (supra) and Lakhiram Ramdas
(supra) are distinguishable, in as much as the relief of seeking recovery of
possession was camouflaged by seeking a mandatory injunction, requiring
the Defendant to remove himself from the premises in question.
20] It is settled position in law that the nature of the suit has to be
determined by the averments in the plaint and plaint alone. The defence
that may be raised by the Defendants, is quite irrelevant in such a context.
A fiscal statute like the Court Fees Act is required to be construed strictly.
In case of any doubt or ambiguity, the statute has to be construed in favour
of the subject. The principle is that if a person to be taxed comes within
the letter of the law, he must be taxed, however great the hardship may be.
Conversely if a person does not come within the letter of the law, is free to
frame the structure of his suit, as would visit him with minimum burden of
court fees. Further statutes like the Court Fees Act, really do not deal with
the substantive rights and therefore, in the matters of construction of such
statutes, the interpretation normally applicable in case of statutes dealing
with procedure, has to be preferred. In a situation where the plaint is not
ambiguous and the Plaintiffs expressly claim reliefs in a particular format, it
is not for the court to force upon the Plaintiffs a frame of a suit which they
are not willing to adopt. Considerations of the frame of the suit for the
purposes of court fee and for that purposes of decision on the merits of the
suit, have to be kept severally apart. If the court, upon consideration of the
matter on merits, comes to the conclusion that the frame of the suit is
defective or if the reliefs as prayed for cannot be granted for want of
further consequential reliefs then it is for the Plaintiffs to bear such
consequences. However, in determining the court fee payable, the court
should not be influenced by consequences which might, in its opinion,
follow from the Plaintiffs action.
21] In the context of payment of appropriate court fee on a
memorandum of appeal, the Supreme Court in the case of Nemi Chand &
Anr. vs. The Edward Mills Co. Ltd. & Anr.
6
, has held that for the purposes
of deciding whether the memorandum of appeal was properly stamped
according to the subject matter of the appeal, it was not open to the court
to canvass the question whether the suit with the second prayer for the
appointment of a receiver eliminated from it, fell within the mischief of the
proviso to Section 42 of the Specific Relief Act 1877. The Supreme Court
observed that such question relates to the merits of the appeal and not to
its proper institution.
6 AIR 1953 SC 28
22] Accordingly, in the facts and circumstances of the present case, the
submissions of Mr. Dani that the present suit is essentially a suit to declare
that the two Sale Deeds are void, cannot be accepted.
23] Normally, in such matters, valuation disclosed by the Plaintiff or the
amount of court fees upon the relief claimed in the plaint should be
accepted as correct. This however, does not preclude the court from
examining if the valuation on the averments in the plaint is arbitrary or
capricious. If, on the perusal of the plaint, the court is prima facie satisfied
that the Plaintiff has not been fair and valued the suit and the reliefs
arbitrarily, the court is not precluded from directing the Plaintiff to value the
suit properly and to pay appropriate court fees thereon. In the present
case, the Plaintiffs have made the averments in paragraph 18 of the plaint,
in respect of valuation and payment of court fee. The same read as under:
“18. The Suit Property being agricultural land assessed to
the land revenue. The plaintiffs submit that the present suit has
been valued at Rs.142/- i.e. the 200 times of the assessment of
the Suit Property for the purpose of relief of declaration. The
plaintiff has also prayed for permanent injunctions and therefore
the plaintiffs have valued the present suit at Rs.1000 +
Rs.1,000/- for the purpose of permanent injunctions. Thus the
plaintiff has valued the present suit at Rs.142/- + 1,000/- +
1,000/- and has paid appropriate court fees stamp fees
thereon. In case any additional court fees is required to be paid
by the plaintiff then the plaintiff is ready to pay the same as and
when directed by the Hon'ble Court.”
24] The suit as framed, seeks declaration that the Plaintiffs are absolute
owners of the suit property [prayer clause (b)]. In addition the plaint seeks
relief of injunction as against Defendant Nos. 1 to 13, which includes the
Petitioner. In terms of Section 6(iv)(d), suit for declaration in respect of
ownership for title is exigible to court fee of one-fourth ad valorem fee
leviable for a suit for possession on the basis of title of the subject matter,
subject to minimum fee of one hundred rupees. The third proviso provides
that when in addition any consequential relief other than possession is
sought the amount of fee shall be one-half of ad valorem fee and when the
consequential reliefs are also sought to include relief for possession, the
amount of fee shall be full ad valorem fee. Further, Section 6(v) deals with
suits for possession of lands, houses and gardens. This in turn, has to be
read and construed with the provisions of the Suits Valuation Act, 1887 and
the Rules made thereunder.
25] In the aforesaid circumstances, it cannot be said that the valuation
and payment of court fees is either arbitrary or capricious, so as to warrant
a direction for revaluation and payment of deficit court fee. There is no
clear material available on record to indicate that the suit property was non
agricultural property. The Plaintiffs, in paragraph 18 of the plaint have
averred that the suit property is agricultural property. This statement has
been denied by the Petitioner - Defendant No. 12 who has claimed that
the present market value of the suit property is in the range of Rs.20,760/-
per sq. meter. On all such aspects, the onus was really upon the Petitioner
to produce cogent material, which onus, the Petitioner has failed to
discharge. Section 8 of the said Act applies in a situation where the court is
of the opinion that the subject matter of any suit has been wrongly valued
or if an application is made to the court for revision of any valuation made.
In such situation, the Court may revise the valuation and determine correct
valuation and may hold such enquiry as it thinks fit for such purpose. This
provision does not contemplate the holding of an enquiry, no sooner an
application is made to the court for revision of any valuation made. The
Petitioner is required to make out a prima facie case that revision of
valuation is warranted.
26] Accordingly, Rule is discharged. In the facts and circumstances of
the case, there shall be no order as to costs.
27] It is clarified that the observations made in this judgment and order
are for the limited purpose of deciding whether the valuation of the suit and
payment of court fee thereon was in any manner deficient. Accordingly,
the learned Civil Judge to decide the suit on merits, without being
influenced by the observations made in this judgment and order for the
aforesaid limited purposes.
(M. S. SONAK, J.)
No comments:
Post a Comment