Calcutta High Court (Appellete Side)
Haldiram Bhujiwala Limited vs Tarak Nath Manna & Ors on 8 March, 2016
Author: Soumen Sen
Bench: Soumen Sen
1
19 08.03.16 C.O. 645 of 2016
akd
Haldiram Bhujiwala Limited
Vs.
Tarak Nath Manna & Ors.
--------
Mr. Saptangshu Basu, Mr. Sunil Singhania, Mr. Kushal Chatterjee.
... for the petitioner.
This revisional application is directed against an order dated 5th January, 2016 passed by the learned Civil Judge (Junior Division), 4th Court, Howrah in connection with an application under Order XIV Rule 2 of the Code of Civil Procedure filed by the defendant no. 1 on 3rd May, 2010.
The basis of the application appears to be that the defendant no. 1 specifically mentioned in the written statement that he is in exclusive possession of the suit property and in view of such clear assertion it is necessary for the Court to determine whether the Court has pecuniary jurisdiction to try the suit as the Trial Court is the Court of limited pecuniary jurisdiction.
This issue of pecuniary jurisdiction has been decided and held against the petitioner in the impugned judgement.
The plaintiff alleged that the defendant no. 1, the company, with the aid of defendant no. 2, who is an electrical contractor, tried to take electric connection illegally and forcibly to the work shop of defendant no. 1 in dag no. 62397, 6296 over the suit 2 property and have already fixed a pole upon the suit property and collected building materials for constructing room for power house.
It was alleged that between 13th August, 2009 and 16th August, 2009 the defendant no. 1 company with the supervision of defendant no. 2 forcibly partly constructed a room upon the suit property for power house, which is detrimental to the right, title and possession of the plaintiff in the suit property.
The plaintiff filed a suit for declaration that he is the absolute owner of the suit property and permanent injunction restraining the company from taking forcible possession of the suit property or from taking any electric connection over the suit property and/or from fixing any electric poll upon the suit property and/or from making any construction upon the suit property.
The Trial Court considered the schedules of the plaint as well as the schedule of the properties disclosed by the defendant in the written statement and was of the opinion that the suit property as per schedule in the plaint is different from the property as mentioned in para 15 of the written statement, wherefrom it appears that the plots mentioned therein are different from the plot mentioned in the plaint.
Mr. Saptangshu Basu, learned Senior Counsel appearing for the petitioner, submits that having regard to the fact that the plaintiff is not in possession, he is required to claim recovery of possession and having regard to the fact that the 3 valuation of the property disclosed by the defendant in the written statement is Rs. 18 lacs and the Court to objectively assess the Court fees payable for recovery of possession of the property in question ought to have exercised jurisdiction under Section 11 of the Court Fees Act and make an enquiry as to the amount of court fees which the plaintiff would be required to pay for the reliefs claimed in the suit.
Mr. Basu submits that the suit must fail under Section 34 of the Specific Relief Act as the recovery of possession of the suit property has not been prayed for. Mr. Basu has referred the following decisions:
1) in the case of Asit Baran Chaudhury & Anr. vs. Profulla Chandra Bose reported at AIR 1984 Calcutta 366;
2) a judgement in the case of Vinayakrao
Anandrao Mankar Kunbi vs. Mt.
Mankunwarbai & Ors. rendered by one
of the eminent jurists of the Country, namely Vivian Bose, J. reported at AIR (30) 1943 Nagpur 70; and
3) in the case of Neelavathi & Ors. vs. N. Nataranjan & Ors. reported at AIR 1980 SC 691;
and submits that when the plaintiff is admittedly excluded from the possession of the suit property the plaintiff ought to have prayed for recovery of possession and accordingly should have prayed the court fees for such relief.
The decided cases cited from the Bar clearly 4 held that the Court can exercise power under Section 11 of the Court-fees Act to revise the valuation and determine the correct valuation and for this purpose may hold such inquiry as it thinks fit. The Court can only act in this respect if there be material before it from which it can be determined that the valuation given by the plaintiff is erroneous.
Whether the reliefs claimed by the plaintiff by way of declaration would be the complete relief or not is not required to be gone into at this stage, as the plaintiff felt that the decree in the suit would give him complete relief. The suit could be barred under Section 34 of the Specific Relief Act is not the consideration at this stage as the Court is not functioning as a Collector of the State Government and to earn revenue for the State. The plaintiff, being the dominus litis is competent to value the suit as he thinks it fit and unless the said valuation is manifestly absurd the Court cannot exercise its power under Section 11 of the Act to revise the said valuation. It is not the duty of the Court to collect the court fees on a plea that the State might lose revenue.
The considerations of the Trial Court in my view does not require the plaintiff to pay any further court fees than what he assess. The Court should not be at this stage influenced by any arguments made as to the bar under Section 34 of the Specific Relief Act.
Under such circumstances, this Court finds no reason to interfere with the impugned order. Whether the plaintiff would ultimately get complete relief in the 5 suit can only be revealed during the trial of the suit as the fact of dispossession of the plaintiff from the suit property is not evident inasmuch as the schedule to the properties as disclosed in the plaint are not overlapping the schedules disclosed in the written statement.
With the above observations this revisional application is dismissed.
There will be no order as to costs.
(SOUMEN SEN, J.)