Calcutta High Court (Appellete Side)
Sri Kartick Mondal & Ors vs Sri Biman Sen & Ors on 4 July, 2008
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
C.O. No.1521 of 2008
Sri Kartick Mondal & Ors.
-versus-
Sri Biman Sen & Ors.
For the Petitioners : Mr. Sudish Dasgupta,
Mr. Sandeep Ghosh,
Mr. Amit Kr. Pan,
Ms. Tanusri Santra.
For the Opposite Mr. S.P. Roy Chowdhury,
Parties (1 to 20) : Mr. Dipankar Chakraborty.
For the Opposite : Mr. Hirak Mitra,
Parties. (21 to 60) Mr. K.A. Bhaduri.
Judgment On : 04 - 07 - 2008.
This application under Article 227 of the Constitution of India is directed
against an order being No.8 dated 22nd April, 2008 whereby the learned Trial
Judge rejected the defendants' application under order 7 Rule 10 read with
Section 21 of the Code of Civil Procedure.
The propriety of such an order is under challenge in this application at the
instance of the defendants/petitioners herein.
Let me now consider as to how far the learned Trial Judge was justified in
rejecting the defendants' said application in the facts of the instant case.
The plaintiffs filed a suit for declaration of their title in respect of the suit
property. In the said suit, a decree for injunction was sought for against the
defendants for restraining them from changing the nature and character of the
suit property. A decree for permanent injunction has also been sought for
against the defendants, for restraining them from transferring and/or alienating
the suit property in favour of any third party. A decree for recovery of possession
was also sought for against the defendants in the said suit.
Thus, it appears from the plaint that diverse reliefs were claimed by the
plaintiffs on the basis of common cause of action which is as follows:-
The plaintiffs claimed that the suit property was the khasmahal land of the
State. They further claimed that the State of West Bengal settled the said
khasmahal land in favour of their predecessor-in-interest. The plaintiffs
inherited the suit property from their predecessor-in-interest after their death.
The name of the plaintiffs were also recorded as owners of the suit property in
the revenue records of the State. After change of the name of the road on which
the suit property situates, the number of the original holding of the suit property
was changed by the Calcutta Municipal Corporation and several holdings were
created out of the parent land holding by the Corporation. All on a sudden the
plaintiffs found that the defendant no.4 namely Puja Constructions started
raising construction on the suit property without obtaining any permission
and/or consent from the plaintiffs. The plaintiffs also came to know from the
municipal records that the names of the defendant nos.1, 2 ands 3 were recorded
as transferee owners of the suit holdings. A building plan was also sanctioned by
the Municipal Authority in favour of the defendants and the defendant no.4 being
a promoter/developer has started raising construction on the suit property as an
agent of the said defendant nos.1, 2 and 3.
In such circumstances, the plaintiffs filed the aforesaid suit seeking the
aforesaid reliefs against the defendants. In the concise statement of the plaint,
the plaintiffs stated that the suit for declaration, permanent injunction and
recovery of khas possession is valued at Rs.3,210/-. In paragraph 20 of the said
plaint the plaintiffs stated that for ascertaining the jurisdiction of the Court and
for payment of Court fees, the suit is valued at Rs.3,210/- with the following
break up i.e. for declaration of Rs.100/-, for injunction Rs.100/-, for recovery of
possession, Rs.3,000/- and for mesne profit Rs.10/- tentatively. Court fees were
also paid on such valuation of the plaint.
In this context, the defendants/petitioners filed an application under Order
7 Rule 10 with Section 21 of the Code of Civil Procedure contending inter alia
that since the plaintiffs are admittedly out of possession and since a decree for
recovery of possession has been sought for, the plaintiffs ought to have valued
the relief for recovery of possession at the prevailing market rate of the suit land
which is not less than Rs.1 crore and thus, the plaintiffs are required to pay ad
valorem Court fees on such valuation. The defendants produced their purchase
deeds to show the present market price of the suit property and thus, claimed
that since the valuation of the suit property is more than Rs.1 crore, the suit
cannot be tried by the Court of the learned Civil Judge, Junior Division, Sealdah
due to lack of pecuniary jurisdiction. Accordingly the defendants prayed for
return of the plaint to the plaintiffs.
The learned Trial Judge rejected the petitioners' said application by the
impugned order by holding inter alia that since the relief for injunction and for
recovery of possession are consequential reliefs, such reliefs can not be granted
unless the plaintiff's prayer for declaration of their title in the suit property is
allowed. According to the learned Trial Judge, such suit, for the purpose of
computation of Court fees falls under Section 7(iv)(b) of the West Bengal Court
Fees Act, 1970 and, as such, the plaintiffs are not required to value the suit as
per the provision, contained in Section 7(v)(b) of the West Bengal Court Fees Act,
1970.
Thus, the defendants' prayer for return of the plaint to the plaintiffs was
rejected by the learned Trial Judge.
The defendants felt aggrieved against the said order. Accordingly, the
instant revisional application was filed.
Mr. Dasgupta, learned Senior Counsel, appearing for the
defendants/petitioners submitted that when the principal relief in the suit is
recovery of possession of the immovable property with a declaration of title
incidentally, the suit should have been valued as per the provision of Section
7(v)(b) of the West Bengal Court Fees Act, 1970. According to Mr. Dasgupta,
conjoint reading of Section 7(v)(b) and Section 7(vi)(a) of the West Bengal Court
Fees Act, 1970 makes it clear that when recovery of possession of immovable
property is sought for against a trespasser, where no declaration of title to
property is either prayed for or necessary for disposal of the suit, suit should be
valued according to the amount on which the relief sought is valued in the plaint
subject to provision of Section 11.
Mr. Dasgupta thus, submitted that since a declaration of title has been
sought for in the present suit along with the prayer for recovery of possession,
the instant suit cannot be classified as a suit falling under Section 7(vi)(a) of the
said Act. Mr. Dasgupta thus, contended that when recovery of possession is
sought for together with the prayer for declaration of the plaintiffs' title, suit falls
under the classification of Section 7(v)(b) and accordingly, the plaintiffs are
required to value the said suit according to the market value of the suit property
as the profit arising therefrom is not readily ascertainable and assessable.
Mr. Dasgupta further contended that if the valuation of the suit property is
made by the plaintiffs arbitrarily and whimsically for avoiding payment of ad
valorem Court fees and/or to evade payment of appropriate Court fees or for
conferring jurisdiction on some Court which it does not have or for depriving the
Court of jurisdiction which it would otherwise have, the Court can certainly
interfere, both under the provisions of Court Fees Act as well as under the
provisions of the Suit Valuation Act.
Mr. Dasgupta further submitted that it is the substance of the relief sought
for and not the form which is the determining factor for valuation of the suit. For
ascertaining the correctness of the valuation statement, the Court is required to
scan the averments made by the plaintiffs in the plaint itself by taking each
averment in the plaint as true and correct.
In support of such submission Mr. Dasgupta relied upon the following two
decisions of the Hon'ble Supreme Court:-
1.In the case of Abdul Hamid Shamsi -Vs- Abdul Majid & Ors. reported in (1988)2 SCC 575.
2. In the case of Kamaleshwar Kishore Singh -Vs- Paras Nath Singh & Ors. reported in (2002)1 SCC 304.
By referring to the averments in the plaint and the reliefs claimed therein, Mr. Dasgupta submitted that the primary relief claimed in the said suit is the decree for recovery of possession but since declaration of title is also sought for in such suit, the said suit, according to Mr. Dasgupta, should be classified under Section 7(v)(b) of the West Bengal Court Fees Act, 1970.
Thus, Mr. Dasgupta invited this Court to interfere with the impugned order.
Mr. Mitra, learned Senior Counsel, appearing for some of the opposite parties refuted the submission of Mr. Dasgupta by contending inter alia that the suit as framed and the reliefs as claimed in the said suit cannot be classified either under Section 7(v)(b) or under Section 7(vi)(a) of the West Bengal Court Fees Act, 1970. By reading the entire pleadings of the plaint, Mr. Mitra submitted that in the instant suit the primary relief is the relief for declaration of title. The other reliefs which are claimed by the plaintiffs in the said suit either by way of injunction or for recovery of possession, according to Mr. Mitra, are incidental and/or consequential reliefs as those reliefs cannot be granted unless the plaintiffs' title in the property is declared.
Mr. Mitra further submitted that on the basis of the cause of action pleaded in the plaint the plaintiffs are entitled to get diverse reliefs and, as such, those reliefs were joined together in the said suit but in any event the relief for injunction and/or recovery of possession cannot be granted independently unless the plaintiffs' title in the suit property is declared. Under such circumstances, Mr. Mitra submitted that for the purpose of computation of Court fees, such suit should be valued as per the provision contained in Section 7(iv)(b) of the West Bengal Court Fees Act, 1970.
In support of his submission Mr. Mitra cited the following decisions wherein it was uniformly held that if the principal relief is declaration of any right and if the other reliefs claimed in the suit can only be granted, if the declaration of title as sought for, is granted then the other relief should be regarded as consequential reliefs and under such circumstances, the suit should be classified under Section 7(iv)(b) of the West Bengal Court Fees Act, 1970:-
1. In the case of Smt. Dhiraj Bala Karia -Vs- Jethia Estate Pvt. Ltd.
reported in AIR 1983 Calcutta page 166 (Special Bench).
2. In the case of Naba Kumar Das -Vs- Damodar Das reported in 1992(II) CHN 482.
3. In the case of Paresh Chandra Nath -Vs- Naresh Chandra Nath & Ors.
reported in (2006)1 CHN 526.
4. In the case of Tara Devi -Vs- Sri Thakur Radha Krishna Maharaj reported in AIR 1987 SC page 2085.
Mr. Mitra, thus, contended that in a suit where the plaintiffs have prayed for declaration of his title and for permanent injunction and/or for recovery of possession by way of consequential relief, the correct mode of valuation for such relief is to put a single valuation and the option of valuing the relief rests with the plaintiffs.
Mr. Mitra further contended that separate valuation of the reliefs which have been given by the plaintiffs in the suit is merely a surplusage and if the Court finds that excess Court fees have been paid by the plaintiffs, the Court can even refund the excess Court fees to the plaintiffs. In support of such submission Mr. Mitra also relied upon the following decisions of this Hon'ble Court:-
1. In the case of Balaram Mondal -Vs- Sahebjan reported in AIR 1950 Calcutta page 85.
2. In the case of Jitendra Nath Mukherjee -Vs- Commissioners of Baduria Municipality & Ors. reported in AIR 1967 Calcutta 423.
In the aforesaid context, Mr. Mitra supported the judgment of the learned Trial Judge.
Mr. Roy Chowdhury, learned Senior Counsel, appearing for the other set of opposite parties also supported the submission of Mr. Mitra. Mr. Roy Chowdhury, however, referred to the following four decisions to strengthen his submission in support of his impugned order:-
1. In the case of S. Rm. Ar. S. Sp. Sathappa Chettiar -Vs- S. Rm. Ar. Rm.
Ramanathan Chettiar reported in AIR 1958 SC 245.
2. In the case of Mahithsh Mookherjee -Vs- Satyaranjan Chatterjee reported in 1953 CWN page 340.
3. In the case of Panchi Bala Midda -Vs- Namita Rani Dey Chowdhury reported in AIR 1996 Calcutta 133.
4. In the case of Bani Basu & Ors. -Vs- Sachindra Nath Ghosh & Anr. reported in 200892) CHN 165.
Let me now consider the submissions of the learned Counsel of the respective parties in the facts of the instant case.
The cause of action pleaded by the plaintiffs in the plaint as well as the reliefs claimed in the suit have already been mentioned above. On careful reading of the averments made in the plaint as well as the reliefs claimed therein, this Court holds with all certainty that the reliefs which were claimed by the plaintiffs in the suit either by way of injunction or by way of recovery of possession are dependent upon the relief for declaration of title. This Court also holds that the relief for declaration is not the only relief which is sufficient in the facts of the instant case and if declaration only, is sought in such case, the suit will be barred under Section 34 of the Specific Relief Act. In Fact, the plaintiffs are entitled to diverse reliefs in the facts of the instant case but the reliefs by way of injunction and/or recovery of possession cannot be granted unless their title in the suit property is declared.
This is not a suit where the defendants were described as rank trespassers. The plaint averment shows that the defendants are in possession of the suit property on a show of title. The plaintiffs, no doubt, have challenged the legality of the defendants' title in the property on the strength of the settlement of the suit land given by the State of West Bengal in favour of the plaintiffs' predecessor-in-interest. Thus, in fact, for tracing the title of the real title holder, declaration of the plaintiffs' title was sought for, in the suit. If the said declaration is not granted then the other reliefs either by way of injunction or by way of recovery of possession cannot be granted independently in favour of the plaintiffs. As such, this Court has no hesitation to hold that the relief by way of declaration is the principal relief in the suit and the relief for injunction and recovery of possession are incidental and consequential reliefs. As such, the plaintiffs are required to value the entire suit as per the provision contained in Section 7(iv)(b) of the West Bengal Court Fees Act, 1970 and not under Section 7(v) (b) of the said Act as contended by Mr. Dasgupta. The decisions which were cited by Mr. Mitra and Mr. Roy Chowdhury are squarely applicable in the facts of the instant case and thus, this Court has no hesitation to hold that the learned Trial Judge did not commit any illegality by rejecting the defendants' application for return of the plaint.
In my opinion the suit has been properly valued and the learned Trial Judge has jurisdiction to try the said suit.
The Revisional application, thus, stands rejected. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
( Jyotirmay Bhattacharya, J. )