Karnataka High Court
Shivaram Bapuchand Shaha And Co. vs Hirachand Sakharam Mehata And Co on 11 December, 1987
Equivalent citations: ILR1988KAR1962, 1987(3)KARLJ571
ORDER K.A. Swami, J.
1. This C.R.P. is preferred by the plaintiffs against the finding recorded on 30-10-1987 by the Additional Civil Judge, Chikodi, in O.S. No. 18 of 1985 on Issue No. 1 in the negative. Issue No. 1 reads thus:
Whether the Court fee paid is proper?
2. The trial Court has held that the Court fee paid is not proper and the plaintiffs have to pay Court fee in accordance with the provisions of Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as the Act). Accordingly, the trial Court has directed the petitioners to pay a deficit Court fee of Rs. 3,561/-.
3. The plaintiffs-petitioners have sought for the following reliefs :
"(A) Declaring that the decree passed in O.S. No. 125/ 81 on 17-2-1982 in favour of the defendant-1 against the plaintiff in this Court is illegal, null and void, ultra vires and without jurisdiction and not binding on the plaintiff;
(B) Consequently restraining the defendant-1 and persons on its behalf by perpetual injunction from executing the impugned decree passed in O.S. No,125/ 1981 against the plaintiff and recovering any amount from the plaintiff on the basis of the said void decree."
4. According to learned Counsel for the plaintiffs-petitioners, the reliefs sought for in the plaint fall under Section 24(d) of the Act and the matter is covered by the several decisions of this Court in SMT. SUBBAMMA AND ORS. v. MUNIYAMMA AND ANR., CRP 4002/81 DD 20-2-1985 ; BASAVANNAPPA v. STATE OF MYSORE, 1970(2) Mys.L.J. 10 ; H.N. PALIEGAR v. K. SRINIVASA AND ANR., 1968(1) Mys.L.J. 198 ; SYED VAJEEHUNNISA BEGUM & ORS. v. THE MYSORE STATE BOARD OF WAKFS AND ORS., 1969(2) Mys.L.J. 344 AND NARAYANA NAGESH GUNAJI v. MUNICIPAL CORPORATION OF GREATER BOMBAY AND ANR., 1982(2) KLJ 522.
5. From the averments made in the plaint and the reliefs sought for by the plaintiffs, it is clear that the first defendant herein has obtained a decree against the plaintiffs-petitioners in O.S. No. 125/81 on 17-2-1982 from the Court of Civil Judge, Chikodi, for a sum of Rs. 29,880/-. It is that decree which the plaintiffs-petitioners are trying to get rid of through the suit in question. The decree which the plaintiffs/petitioners want the Court to declare it as null and void, is admittedly a money decree and it is passed for a sum of Rs. 29,880/-. It is neither possible to accept nor to hold it is bonafide and reasonable the assertion of the plaintiffs-petitioners that they are not in a position to value the reliefs sought for in the suit, therefore they are entitled to value the reliefs sought for in the suit according to their own whims and fancies at Rs. 1,000/:. The plaintiffs under the garb of seeking a declaration are virtually seeking the relief of cancellation of the decree obtained against them. The relief of declaration sought for by the plaintiffs that the decree passed in O.S. 125/81 dated 17-2-1982 by the Court of the Civil Judge, Chikodi is null and void, has to be construed as the one for cancellation of the decree, inasmuch as, the result of granting such a relief is to cancel the decree itself. It is the substance of the relief that is relevant and material and not the form for the purpose of deciding the question as to whether the suit is properly valued and the Court fee paid is sufficient. The plaintiffs are parties to the decree, therefore they have to seek a relief of cancellation of the decree/When the effect of the declaratory relief sought for by the plaintiffs-petitioners, if granted, is to set aside or cancel the money decree, the relief, necessarily falls under Section 38 of the Act. The Act is a fiscal statute. It has to be construed strictly. If the substance of the relief sought for in a suit falls under a particular provision of the Act, it cannot be brought under the general provision. Section 24(3) of the Act is in the nature of a general provision. It does not deal with any specific relief sought for in the suit. Whereas, Section 38 of the Act specifically deals with suits for cancellation of decrees for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right title or interest in money, movable or immovable property. That being so when the relief sought for by the plaintiffs-petitioners, as already pointed out, in effect and in substance is to seek the relief of cancellation of a decree necessarily, it falls under Section 38 of the Act.
6. The plaintiffs are required to value the relief correctly. They cannot be permitted to under value the relief. In the valuation of relief, the plaintiff has to be reasonable. In A.KA.CT.V. CT. MEENAKSHISUNDARAM CHETTIAR v. A.KA.CT.V.CT. VENKATACHALAM CHETTIAR, the Supreme Court while considering Order 7 Rule 11 of the C.P.C. and Section 35 of the Tamil Nadu Court Fees and Suits Valuation Act has observed thus:
"Order 7, Rule 11, of the Civil Procedure Code, requires the Court to return the plaint if the relief claimed is undervalued. Order 7, Rule 11, runs thus :
"11. The plaint shall be rejected in the following cases :
(a)x x x x x x
(b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.
(c) and (d) x x x x This Section casts a duty on the Court to reject the plaint when the relief claimed is undervalued. If on the materials available before it the Court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected. It is therefore necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. In coming to the conclusion that the suit is undervalued the Court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The plaintiff cannot arbitrarily and deliberately undervalue the relief. A Full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chenchuram Reddy v. Kanupuru Chenchurami Reddy (ILR (1969 Andh. Pra. 1042) after elaborate consideration of the case law on the subject has rightly observed that there must be a genuine effort on the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under-estimation."
In Narayana Nagesh Gunaji v. Municipal Corporation of Greater Bombay and Anr., 1982(2) KLJ 522 this Court has, after referring to the decision of the Supreme Court in A.KA.CT. V.CT. Meenakshisundaram Chettiar's case, has observed thus :
".....The plaintiff is required to make genuine efforts to estimate his claim and that estimate should not be a deliberate under-estimation. It should be a fair estimate of the amount to which the plaintiff is likely to be entitled to. In other words, the estimate of the claim must be a real one."
7. In the instant case, there is no doubt that the plaintiffs have deliberately under estimated the value of the relief and they have deliberately tried to make it appear that the relief sought for is one of declaration and not cancellation of a decree even though in substance and in effect the relief is one for cancellation of the decree. Therefore, the valuation made by the plaintiffs-petitioners on the face of it suffers from want of bonafides. When admittedly the decree sought to be cancelled is for a sum of Rs. 29,880/- ; it is not possible to appreciate how the plaintiffs could value the relief only for a sum of Rs. 1000/-and bring the case under Section 24(d) of the Act when it clearly falls under Section 38 of the Act. Therefore, I am of the view that the finding recorded by the Court below that the relief has to be valued as per Section 38 of the Act is correct and does not call for interference. The decision in CRP No. 4002/81 (Smt. Subbamma and ors. v. Muniyamma and ors.), CRP 4002/81 DD 20-2-1985 decided on 20-2-1985 is not on the point. In that decision only Sections 24(d) and 21 of the Act are considered. The trial Court held that the relief sought for was to be valued under Section 21 of the Act, whereas this Court held that it was to be valued under Section 24(d) of the Act. The relief sought for in the suit was for a declaration that the plaintiffs therein were the absolute and exclusive owners of the plaintif schedule property i.e., the amount with all the benefit thereunder. The other reliefs were given up, therefore the relief sought for in that suit did not fall under Section 38 of the Act.
8. Similarly, in HAMME DE BEARY v. MOHINI AND ANR., 1968(1) Mys.L.J. 336 the trial Court directed that the suit should be valued under Section 26(a)(ii) of the Act This Court held that the suit should be valued under Clause(e) of Subsection (1) of Section 41 of the Act. The relief claimed in the suit was a permanent injunction restraining the defendants, their men, servants, relations, etc ; from entering into or in anyway interfering with the peaceful possession by the plaintiffs of the properties described in Schedule 'A' annexed to the plaint. The plaintiff claimed to be a chalgeni tenant. Thus, it was a suit by a tenant against the landlord. Therefore, it was held that it was virtually a suit for establishing a right of occupancy. Thus, it is clear that the said decision has no application to the case on hand. Similarly, the decision in Syed Vajeehunnisa Begum and ors. v. The Mysore State Board of Wakfs by Secretary and ors., 1969(2) Mys.L.J. 344 is not on the point since it related to a suit for declaration together with the relief consequential on such declaration in respect of an immovable property. It was held that such a relief was neither for recovery of. possession nor for injunction nor did it relate to any trade mark, book, picture, design etc., therefore, it fell only under Clause (d) of Section 24 of the Act. Again in Basavanappa v. State of Mysore, 1970(2) Mys.L.J. 10 the plaintiffs sought for a decree against the defendant in the following terms :
"(1) The defendant be restrained perpetually from recovering the excise dues under an illegal contract, for retail vend of Narayangud Foreign Liquor for 1954-55, which is not at all enforceable against the plaintiff."
It was held that the relief fell under Clause (d) of Section 24 of the Act. Therefore, the plaintiff was at liberty to place his own valuation on the relief, subject only to the condition that if the valuation was below Rs. 250/- the plaintiff was bound to pay a Court fee of Rs. 250/-. It was not a case falling under Section 38 of the Act as there was no question of cancellation of decree or document as in the present case. As such, the decision in Basawannappa's case, 1970(2) Mys.L.J. 10 also has no bearing on the case on hand.
9. For the reasons stated above, the revision petition fails and the same is dismissed.