Calcutta High Court
Smt. Nilima Bose vs Santosh Kumar Ghosh on 25 March, 1996
Equivalent citations: AIR1997CAL202, AIR 1997 CALCUTTA 202, (1997) 2 LJR 484
ORDER
1. The revisional application is directed against thejudgrnent dated 1-4-1993 passed by the learned Additional District Judge, 2nd Court at Barasat, 24-Parganas (North) in Misc. Appeal No. 137 of 1992 affirming the order No. 77 dated 26th March, 1992 passed by the learned Munsif, 1st Court, Barasat, Dist. North 24-Paraganas in Title Suit No. 34 of 1987 in respect of return of the plaint to the filing lawyer due to lack of pecuniary jurisdiction of the said Court.
2. The aforesaid Title Suit No. 34 of 1987 was filed by the petitioner against the opposite party for recovery of possession in respect of 'A' schedule property of the plaint alleging, inter alia, that the petitioner purchased the property and was constructing/renovating a Cinema Hall there by spending more than 4 lakhs of rupees when the opposite party dispossessed the petitioner from the suit property by falsely claiming title thereto on the basis of certain deeds of release executed by the petitioner in favour of the opposite party. The petitioner accordingly prayed for declaration of her title and for permanent injunction, in so far as 'B' schedule property is concerned which is an analogous plot of land in 'A' schedule property the petitioner's case is that the opposite party is trying to dispossess her from the said land. The petitioner accordingly has prayed for declaration in respect of 'B' schedule property. In respect of 'A' schedule property the petitioner's prayer is for recovery of possession from trespasser along with permanent and mandatory injunction.
3. The petitioner having made subjective valuation under Section 7(vi)(A) of the Court-fees Act, 1970 'A' schedule property and under Section 7(vi)(B) for 'B' schedule property the opposite party raised preliminary objection before the learned Munsif that the suit is under valued and the court has no jurisdiction to try the suit.
4. The learned Munsif by his order No. 77 dated 26th March, 1992, directed return of the plaint to the petitioner on the ground that the market value of the suit property was more than Rs. 30,000/- and therefore the valuation of the subject-matter of the suit being beyond the pecuniary jurisdiction of that court he directed return of the plaint. An appeal was preferred against the said order and the learned Additional District Judge heard the appeal and affirmed the findings of the learne Munsif on the ground that the suit being not one for recovery of possession simplicitor, as that appears from the plaint, that the petitioner was to pay ad valorem court-fee on the valuation of the subject-matter of the suit and the valuation of the 'A' schedule land being admittedly more than rupees four lakhs the learned Munsif was right in not entertaining the suit and directing return of the plaint.
5. It was further held that Section 7(vi)(A) being always subject to the provisions of Section 11 of the Court-fees Act, 1970, valuation of the subject-matter, as indicated in the plaint would be the proper valuation for the purpose of court-fees and jurisdiction.
6. The petitioner has challenged the above findings of the learned Appellate Court in this writ petition on the ground that she is entitled to value her suit according to the value of the relief sought for and as such valuation, by its nature, is always subjective and being not capable of measured in terms of money and the suit being one for recovery of possession from a trespasser the declaration of title was not prayed for as it was not necessary and accordingly under the provisions of Section 7(vi)(A) of the Court-fees Act she can make subjective valuation of the relief sought for in the plaint.
7. The order was also challenged on the ground that without framing a preliminary issue in terms of Order 14, Rule 2 of the Code of Civil Procedure (C.P.C. for short) the court was not justified in disposing of the matter. The petitioner has accordingly prayed for setting aside the order of the learned Additional District Judge and the learned Munsif.
8. Heard the submissions of Mr. Asoke Banerjee, learned advocate for the petitioner and Mr. Sudhis Das Gupta, learned advocate appearing for the opposite party.
9. Before consideration of the principal question, namely, whether the petitioner can make subjective valuation of the reliefs sought for in the plaint it is necessary to consider whether the court was justified in directing the return of the plaint to the filing advocate without framing of preliminary issue namely, whether the court has jurisdiction to try the suit. It is true that an application was filed under Order 14, Rule 2 of the Code of Civil Procedure on behalf of the opposite party for framing an issue under that provision but from the order passed by the learned Munsif it wil! appear that he did not prefer to consider that application as an application under Order 14, Rule 2 of the C.P.C. The learned Munsif, accordingly, must have directed return of the plaint under Order 7, Rule 10 of the C.P.C. The question is whether the learned Munsif was justified in returning the plaint under that provision without framing a preliminary issue under Order 14, Rule 2 of the C.P.C. and disposing of the same under the provision.
10. Admittedly in the instant case the respondent filed an application for framing an issue regarding maintainability of the suit on the ground of jurisdiction and in course of disposal of the said petition learned Munsif found that as he has no pecuniary jurisdiction he directed return of the plaint. Jurisdictional ground may be of diverse nature, including pecuniary and territorial. Every Court, while entertaining any suit or appeal has the duty to examine whether it has the pecuniary or territorial jurisdiction to entertain such matters and to enable the courts to return the plaint, after the same has been wrongly entertained, that the provision of Order (vii), Rule 10 of the C.P.C. is made to pass such order at every point of time.
11. It is therefore clear that if at any time it is apparent to the Court on the averment in the plaint itself that it has no jurisdiction, either pecuniary or territorial, to entertain the matter the court can always direct return of the plaint under the provisions of O. 7, R. 10 of the Code of Civil Procedure and no preliminary issue under Order 14, Rule 2 needs to be framed for that purpose. Since the Court always retains its jurisdiction to examine the plaint as it is framed for the purpose of examining its jurisdiction prima facie that court is entitled to pass an order for return of the plaint under Order 7, Rule 10 of the Code of Civil Procedure. It should be remembered in this connection that no court can blindly accept any plaint without prima facie satisfaction of its jurisdiction to entertain the matter and it is therefore no good saying that in every case the court is under an obligation to frame a preliminary issue for the purpose of such prima facie satisfaction in the matter, That dispose of the first preliminary point raised by Mr. Banerjee in this matter.
12. Coming to the principal question, namely, whether the petitioner can make subjective valuation in respect of the suit properties it should be noted that there is no dispute regarding the valuation given by the petitioner in respect of 'B' schedule property. Learned appellate court accordingly considered the question of the correctness of the valuation in respect of the 'A' schedule property. It is true that under the provision of Section 7(vi)(A) of the West Bengal Court Fees Act, 1970, for recovery of possessions of immovable property from trespasser where no declaration of title to property is either prayed for or is necessary for disposal of the suit the plaintiff can pay the court-fees according to the amount at which the reliefs sought is valued in the plaint subject to the provisions of Section 11 of the said Act. Under Section 11 the court has always the right to revise the valuation and determine the correct valuation if it is on the opinion that the subject-matter of any suit has been wrongly valued. Mr. Banerjee referred to a decision reported in the case of Amrita Lal Chatterjee v. H. Chatterjee, reported in (1966) 70 Cal WN 857. The ratio propounded in that decision is that the valuation of relief sought is not the same thing as valuation of the property itself or the subject-matter of the suit. By the amending Act the value of the reliefs is now the value of the suit of but such valuation is always subject to the provision of Section 11 of the Act. Mr. Banerjee also referred to certain other decisions, namely, the Naraynaganj Central Co-operative Sale and Supply Ltd. v. Maulavi Mafizuddin Ahmed reported in (1934) 38 Cal WN 589 : (AIR 1934 Cal 48) (FB) where it was held that under the unamended provision of Section 7(vi)(c) and (d) of the Court-fees Act as no rules under Section 9 of the Suits Valuation Act had been framed the court would have no standard before it on which it may record plaintiffs valuation as an under valuation. That decision has no bearing to the facts of the present case. Mr. Banerjee also referred to a decision of Chandmull Jain v. General Assurance Society Ltd. , where the same principle that there is no distinction between valuation for the purpose of jurisdiction or valuation for the purpose of court-fees was reiterated.
13. None of the above decisions cited by" Mr. Banerjee, however, goes to support his contention that the court cannot look at the averments of the plaint for the purpose of discrening the real nature of the suit and to find out the valuation of the true reliefs sought for in the plaint. Reference may be made in this connection to the case of Shamser Singh v. Rajindef Proshad , where it was held that the court in deciding the question of court-fees should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for. "In a single Bench decision of this Court in the case of Sambhu Nath v. Sankarananda, , it was held that the court can from an opinion that the subject-matter of the suit was wrongly valued under the provision Section 11 of the Act. In that case the petitioner also valued his relief under Section 7(vi)(A) of the Act where it was held that there being an objective standard of valuation the plaintiff was to pay advalorem court-fees. In the case of Asit Baran v. Profulla Chandra, , in a suit for recovery of the premises the plaint having disclosed that the defendants proposed to sell the same at Rs.60,000/- and the plaintiff agreed to the said proposal it was held that the objective standard of valuation being provided in the plaint itself the court is entitled to revise the valuation under Section 11.
14. It is, therefore, clear that the manner in which the relief is sought for and couched in the plaint shall not be the sole criterion for determination of court-fees and that the provision of Section 7(vi)(A) of the Court Fees Act shall not operate as a bar for revision of the valuation by the court if the basis of such valuation is provided in the plaint itself.
15. In this connection reference may be made to the provision of Section 34 of the Specific Relief Act wherefrom it will appear that any person entitled to any legal character or to any right as to any property may institute suit against any person denying or interested to deny his title to such character or right, where the court may in its discretion make a declaration that he is so entitled. The object and the scope of the section is to perpetuate and strengthen testimony regarding title and to protect the same from adverse attack, that is, to prevent future litigation by removing existing cause of controversy not only to secure the plaintiff possession of the property wrongfully taken away from him or her but also to see that he or she is allowed to enjoy that property peacefully. In other words, if a cloud is cast upon the title of the plaintiff by denial of his legal character or right or by execution of any document which, if left outstanding would militate against such legal character or right and if some steps are not taken at once to have the doubts and difficulties removed, it may, at a later time, create difficulties for the plaintiff to prove his legal character or right as the evidence that is available now may not be forthcoming hereinafter.
16. In the instant case, on a perusal of the plaint as a whole it will appear that though the plaintiff has claimed recovery of her possession of the basis of her deeds of purchase still then she has admitted that the sale deeds are in the possession of the opposite party for delivery of which a mandatory injunction has been prayed for and it is also stated that though the deeds of release were executed by the plaintiff in favour of the opposite party they do not relate to the suit property. Again instead of praying for declaration of her title straightway in the suit property the plaintiff has prayed for a permanent injunction against the opposite party restraining him from claiming any title or interest in the same.
17. The plaintiff-petitioner being admittedly out of possession her title deed being admittedly in possession of the defendant/ opposite party, she having admittedly executed some deeds or release in favour of the opposite party, even though it is alleged to be not in respect of the suit property, a cloud is unquestionably cast upon the title of the plaintiff in the suit property. The reliefs for recovery of possession and permanent and mandatory injunction, as prayed for, in the suit cannot be granted unless the said cloud over the title of the plaintiff is removed. The cloud has become deeper still because, as .submitted by Mr. Banerjee, the defendant is interested to deny the title of the plaintiff on the ground that she is merely a namelender or. in other words, a benamdar of the opposite party.
Mr. Banerjee submitted that in view of the ratio propounded in the decision of Mithilesh Kumari v. Prem Behari Khare, rendering unenforceable all benami transactions, past or present, the opposite party is not entitled to raise any claim on that account. But the ratio propounded in the case having been partially overruled by a later decision, namely, Rajagopal Reddy v. Padmini Chandrashekharan, , wherein it was held that Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 shall not apply in respect of the suits pending at that time. Admittedly the suit was pending at in time when the Act came into force when the said act came into force. Mr. Banerjee's contention regarding unchallengibi-lity of the title of the plaintiff, therefore, cannot be accepted.
18. So Section 7(vi)(A) of the West Bengal Court Fees Act, 1970 is in relation to payment of Court Fees of suits for recovery of possession from a tresspasser, where declaration of title is neither prayed for nor neces-sary. From my foregoing discussion it will be apparent that sufficient clouds have been case upon the title of the plaintiff for which declaration of title was necessary. In that view of he matter, the suit really comes within the purview of Section 7(v)(A) of the Court Fees Act where the plaintiff is to pay ad veloram Court-fees on the subject matter of the suit. Even assuming that the suit is one under Section 7(vi)(A), still then the plaintiff admittedly having spend more than Rs. 4 lakhs for the construction and/ or renovation of the Cinema Rail, as it will appear from the plaint and basis for the valuation of the subject matter of the suit having been thus furnished in the plaint itself the plaintiff is to value her suit on her said admission as the provision of Section 7(vi)(A) is always subject to the provisions of Section 11 of Court Fees Act.
19. The learned Courts below having accordingly execised their jurisdiction in a proper manner in directing return of the plaint in the facts and circumstances of the case and in the position of law referred to above, as the learned Munsif was patently lacking in jurisdiction to entertain the suit. I accordingly find no reason for interference with the orders passed by the said Courts.
20. The revisional application is accordingly dismissed. Interim order, if any, stands vacated. There will be no order as to costs.
21. Revision dismissed.