Uttarakhand High Court
Maa Chandi Devi Temple Trust And Another vs Rohit Giri And Others on 27 April, 2016
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 683 of 2016 (M/S)
Maa Chandi Devi Temple Trust & another ....... Petitioners
versus
Rohit Giri & others ....... Respondents
Mr. Arvind Vashisth, Senior Advocate assisted by Mr. Nikhil Singhal,
Advocate for the petitioners.
Mr. Rakesh Thapliyal, Advocate along with Mr. Kartikey Hari Gupta,
Advocate for respondent nos. 1 to 3.
U.C. Dhyani, J.(Oral)
By means of present writ petition, the petitioners seek writ in the nature of certiorari quashing the order dated 06.02.2016, passed by Civil Judge (Sr. Div.), Haridwar, in O.S. no. 77 of 2014, Maa Chandi Devi Temple vs Rohit Giri and others. A further prayer has been sought to allow the application (paper no. 377C) filed by the plaintiff / petitioner.
2) Plaintiffs/petitioners filed O.S. no. 77 of 2014 in the court of Civil Judge (Sr. Div.), Haridwar seeking following reliefs:
"(a) A decree of permanent prohibitory injunction be passed in favour of the plaintiff against defendant nos. 1 to 3 restraining them to interfere in the activities of the officials of the plaintiff trust, in the management of the trust and other activities relating to worship, accepting offerings, payment of receipts and other activities done in the public 2 interest, directly or indirectly, either themselves or through their agents, employees and office bearers.
(b) A declaratory decree in favour of the plaintiff and against defendant nos. 1 to 3 be passed to declare that defendant no. 3 Trust has no connection with the property of Maa Chandi Devi Temple and defendant nos. 1 to 3 have no right to accept offerings or gifts relating to the property in question.
(c) Award cost of the suit to the plaintiffs from defendant nos. 1 to 3.
(d) Any other relief as the court may deems fit be also provided to plaintiff from defendant nos. 1 to 3."
3) Respondent nos. 1 to 3 filed counter claim in the selfsame court praying for following reliefs:
"(a) A declaratory decree be passed to the effect that the Trust deed dated 23.01.2013, which was registered in Sub Registrar Office, Haridwar at bahi no. 4, sl. no. 31 of page nos. 17 to 38 of zild 80 on 24.01.2013, was unauthorized and illegal. A declaratory decree be also passed to the effect that the executers of the Trust deed dated 23.01.2013 had no power to create the Trust and vest in themselves the management of the property or offerings in Maa Chandi Devi Temple and its properties, as a consequence of which, the registration of the Trust deed is contrary to law and facts.
(b) A decree for permanent prohibitory injunction be passed that the plaintiff and defendant nos. 4 to 9 either themselves or through their agents, 3 representatives, contractor or employees be restrained from interfering in the management of Maa Chandi Devi Temple, Haridwar by defendant nos. 1 to 3 or in the right of offerings by defendant nos. 1 to 3 as per directions dated 03.01.2012 issued by Hon'ble High Court of Uttarakhand.
(c) Award the cost of counter claim and any other award in the counter claim to defendant nos. 1 to 3 which was proper and justified in the facts of the case."
4) In the suit, the suit property was valued at rupees six lacs and, accordingly, court fee was paid.
5) In the counter claim, the suit property was valued at rupees three lacs for relief 'c' and another rupees three lacs for relief 'b'. Accordingly, the counter claim was filed for rupees six lacs and court fee was paid thereof.
6) For ascertaining the market value of the property, the plaintiffs filed application for Amin's report, so that valuation of the said property be arrived at correctly. That application being paper no. 377C was dismissed by learned trial court and, hence, present writ petition.
7) Learned Senior Counsel appearing on behalf of the petitioners referred to the following provisions of the Court Fee Act, 1870, which are being highlighted here-in- below:
"7. Computation of fees payable in certain suits for money. -The amount of fee payable under this Act in the 4 suits next hereinafter mentioned shall be computed as follows:
.....
For cancellation or adjudging void instruments and decrees;
.....
For an injunction. -(b) to obtain an injunction: .....
Explanation 1. -When the relief sought is with reference to any immovable property the market-value of such property shall be deemed to be the value computed in accordance with sub-section (v),(v-A) or (v-B) of this section, as the case may be.
....
For possession of lands, buildings or gardens. -(v) In suits for the possession of land, buildings or gardens- according to the value of the subject-matter; and such value shall be deemed to be- .
(I) Where the subject-matter is land, and -
(a) where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such an estate, and is recorded in the Collector's register as separately assessed with such revenue and such revenue is permanently settled -
thirty times the revenue so payable;
.....
(II) Where the subject-matter is a building or garden -
according to the market-value of the building or garden, as the case may be, Explanation. -The word 'estate' as used in this sub- section, means any land subject to the payment of revenue for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government or which, in the absence of such engagement, shall have been separately assessed with revenue...."
8) Emphasis is also laid on Section 9 of the Court Fee Act, 1870, which is being reproduced here-in-below for reference:
"Power to ascertain net profits or market-value . -In every suit the plaintiff shall file with the plaint a statement, in such form as may be prescribed for the purpose of particulars and valuation of the subject-matter of the suit, unless such particulars and valuation are 5 contained in the plaint itself. If the Court sees reason to think that the annual net profits or the market-value of any such land, house or garden as is mentioned in Section 7, Paragraphs 5 and 6 have or has been wrongly estimated, the Court may, for the purposes of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other investigation as may be necessary, and to report thereon to the Court."
9) Learned Senior Counsel for the petitioners next relied upon a decision of the Hon'ble Apex court in Shailendra Bhardwaj and others vs Chandra Pal and another, 2013 (1) U.D. 272. Paragraph 9 of said judgment appears to be relevant for discussing the controversy in hand and is, therefore, being excerpted here-in-below for convenience:
"On comparing the above mentioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be 6 applicable. But if such relief is covered by any other provisions of the Court fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the court fees have to be commuted according to the value of the subject matter and the trial Court as well as the High Court have correctly held so."
10) In Dayanand Shiksha Sansthan vs M/s Ambe Associates and others, 2011 (2) U.D. 101, learned Single Judge of this Court while referring the case of Shefali Roy vs Hero Jaswant Dass and others, AIR 1992 Allahabad 254, observed as under:
"7. A division Bench of the Allahabad High Court in the case of Shefali Roy (supra) has observed in para no. 22 as under:7
"22. The payment of court-fee depends upon the averments of the plaint and the relief claimed and not on the averments of the written statement. A suit for mere declaration that the plaintiff is owner of the property in suit as claimed by the plaintiff in the instant case and incidentally claiming a declaration that the alleged sale deed be declared null and void, does not fall within the ambit of Section 7(IV-A) (State of U.P. Amendment). See State of U.P. v. Ramkrishan Burman, AIR 1971 SC 87 : (1971 All LJ 1), wherein considering this State of U.P. Amendment Their Lordships of he Apex Court ruled that in a suit for mere declaration that the plaintiff is owner of certain properties, this U.P. Amendment is not attracted for the purposes of payment of Court-fee. According to Their Lordships this U.P. Amendment relates to a decree for recovery of money or other property. It however does not include a decree concerning title to money or other property, and hence where mere declaration is involved, the payment of court-fee is governed under Art. 17, Schedule II of the Court-fees Act. In view of the decision in Ramkrishna Burman's case (supra), we are of the opinion that the plaintiff has paid proper court-fee."
"14. A perusal of the record reveals that in the case at hand, the plaintiff has sought relief of declaration of title and to declare the sale deeds void and ineffective. The plaintiff, in addition, has sought the relief of permanent injunction as a consequential relief. In may view, the learned trial court has rightly held that the provisions of Section 7(iv-A) of the Court Fees Act are applicable and not the provisions of Article 17 of Second Schedule of the Court Fees Act. Accordingly, the learned trial court has rightly held that the court fee paid by the plaintiff-appellant is not sufficient and has rightly 8 directed the plaintiff-appellant to make the deficiency of court-fee good with a time frame."
11) The following was observed by Hon'ble Allahabad High Court in Parsottamanand Giri vs Mayanand Giri, AIR 1932 Allahabad 593, as under:
"In the case of Mohommad Gause In re (8) the facts were very similar to those of the case now in question. The suit was for a declaration that the plaintiff is the Sajjada Nishin of a Dargah and for possession of its properties. It was argued in that case also that the subject matter in dispute was the right of management of a religious endowment and that such subject matter is incapable of valuation. It was also argued that as the plaintiff was only suing for trusteeship and had no beneficial or personal interest in the properties, no ad valorem court fee should be paid. Both these contentions were repelled and it was held that the court fee was payable under S. 7 Cl (v). I agree with the learned Judge who decided that case that the question whether the plaintiff has or has not any beneficial interest in the properties does not make any difference as regards the court fee payable by him. The legislature lays down certain rules governing the court fees payable on suits for possession of immovable properties and I see no justification for interpreting "possession" as meaning possession as beneficial owner".
I hold that the court fee is payable ad valorem under S. 7 Cl. (v) upon the value of the properties of the Mutt. In calculating the value of such properties the temple itself should be left out of consideration as having no market value."
912) In a Division Bench judgment rendered by Allahabad High Court in the case of Kailash Chand vs V A.C.J., Meerut and others, 1999 (1) Allahabad Rent Cases 529, following was observed in para 11 of said judgment:
"On a bare perusal of Article 17 (iii) it would appear that this Article shall be applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. The question is whether in case where a decree declaring the will as null and void is sought, there is any provision under the Court Fees Act to cover the question of payment of Court Fees on the relief of such declaration. In case the answer to the question is that there is no other provision under the Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will on the question of payment of Court Fees, then Article 17 (iii) of Schedule II of the Court Fees Act shall be applicable and if such relief is covered by another provisions of the Court Fees Act then provisions of Article 17 (iii) of Schedule II will not be applicable. Careful reading of Section 7 (iv-A) makes it abundantly clear that it also covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. The question, therefore, is whether a will would be treated as an instrument securing money or other property having such value. This question specifically arose before the Full Bench of this Court in the case of Smt. Bishnu Shri v. Smt. Suraj Mukhi and others (supra). The majority view of the Court after considering the provisions of Indian Succession Act and 10 the Court Fees Act was that the word 'Instrument' in Section 7(IUV-A) includes formal or legal documents in writing. It is sufficient broad to include wills also. In para 7 the Court held that:
"The question is whether a will can be regarded as a legal document which makes any property secure or safe. Section 2(h) of the Indian Succession Act define a will as a "legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. It is well known that during the life-time of the executant, the will is ambulatory. It could be revoked by him at his will. Accordingly a will does not secure any property during the lifetime of the executant. Section 7(IV-A) does not require that an instrument should secure money or property having money value from the moment of its birth. It seems to us that whether an instrument secures money or property having money value within the meaning of Section 7(IV- A) is to be decided with reference to the date of the institution of the suit. It is to be seen whether particular instrument secures on the date of the institution of the suit money or property having money value. This reference necessarily follows from a collocational reading of this Section with Section 39 of the Specific Relief Act. If this is so, we think, then there is little doubt that on the date of the institution of the suit in this case the will did secure property."
The Court further held that:-
"The word "securing" is the present participle from verb "to secure". It has got various meanings (Words and Phrases) (Permanent Edition), Vol. 38 (page-
458) "Secures" as used in a contract whereby a vendor agrees to execute a conveyance thereof as soon as the 11 vendee secures the payment of purchase money, means not a payment in money but the giving by the vendees of something by means whereof payment at some future time can be procured or compelled (ibid), Webster defines "secures" to mean "to make certain" "to put beyond hazard of losing or of not receiving, as to secure a debt by a mortgage; it also means to get safely in possession, to obtain to acquire certainly, as to secure an inheritance or a price (ibid 459)."
13) Hon'ble Supreme Court has observed in para 12 of its judgment rendered in Badri Nath and another vs Mst. Punna (Dead) by L.Rs. and others, (1973) 3 SCC 71, as under:
"12. There is thus no doubt that the right to receive a share in the offerings is subject to the performance of onerous duties. But then it is apparent that none of these duties is in nature priestly or requiring a personal qualifications. On the other hand all of them are of a non-religious or secular character and may be performed not necessarily by the baridar personally but by his agents or servants so that their performance boils down to mere incurring of expense. If the baridar chooses to perform those duties personally, he is at liberty to do so. But then the obligation extends merely to the making of necessary arrangements which may be secured on payment of money to others, the actual physical or mental effort involved being undertaken by those others. The right is, therefore, a transferable right as envisaged in the passage above extracted from Balmukund vs Tula Ram (supra) which has not been challenged before us as erroneous and which we regard 12 as laying down the law correctly. The contentions raised by Mr. Sinha to the contrary is thus repelled."
14) Learned Senior Counsel for the petitioners, therefore, concluded that the valuation of the property ought to have been taken consideration by the court below and for that market value has to be ascertained, which could only be done either by the Advocate Commissioner or the Amin and, therefore, the application has wrongly been dismissed by the trial court.
15) Learned counsel for the respondents, on the other hand, traced the genesis of this dispute to an order passed by the Division Bench of this Court in Writ Petition (PIL) no. 02 of 2011, titled as J.P. Badoni vs State of Uttarakhand and others, decided on 03.01.2012. Relevant portion of said judgment is reproduced here-in-below for ready reference:
"Since collections, thus, made by Ganga Sabha and the said two temples are in the nature of collection of donations for public religious and charitable purposes, it is incumbent on the part of the trustees to keep and maintain proper and perfect accounts in respect thereof and to ensure utilization thereof only in relation thereto and for no other purpose....
...but permit them to collect donations against receipts to be issued by the trustees thereof. Ganga Sabha and the trustees of those temples shall maintain proper account of such donations collected as well as offerings given to the deities of those two temples either 13 in cash or in the form of valuable materials purposes and for no other purpose. ...
.... Billboards at appropriate places where the same can be viewed by anyone visiting Har-Ki-Pairi or the said two temples denoting that such a register is available at the office of the Senior Superintendent of Police, Hardwar where all and every type of complaints, as mentioned above, may be registered and if registered, the same will be inquired within 24 hours."
16) Hon'ble Supreme Court while deciding SLP no. 5414 of 2015 and at the time of hearing on application for modification of its earlier order dated 27.02.2015, observed as under on 31.07.2015:
"The application for modification of the order dated 27.02.2015 is allowed.
The order dated 27.02.2015 shall be read as follows:
"Since the impugned order is in the nature of an interim order, we decline to exercise our jurisdiction under Article 136 of the Constitution of India.
The suit is of the year 2012. After hearing learned counsel for the parties to the lis, we feel that the hearing of the suit requires to be expedited. Therefore, we direct the learned 1st Additional District Judge, Haridwar to conclude the hearing of Original Suit no. 77 of 2014 as early as possible, at any rate within twelve months' time. We request both the parties to co-operate in the early disposal of the suit.14
The learned Trial Judge shall decide the suit purely based on oral and documentary evidence that may be led in by both the parties, without being influenced by any of the observations and findings made by the High Court while disposing of the Appeal from Order no. 610 of 2014, dated 20.01.2015.
The special leave petition is disposed of."
I.A. no. 2 of 2015 stands disposed of, accordingly."
17) Learned counsel for respondent nos. 1 to 3 then relied upon a judgment rendered by Calcutta High Court in Smt. Hiranbala devi vs Bishnupada Bhattacharya and others, AIR 1976 CALCUTTA 404. Relevant portion of said judgment reads as under:
"Counsel on behalf of the defendants contended that insufficient court-fees had been paid. He contended that the shebaitship is property. The plaintiff has asked for possession and assertion of the rights of shebaits. Therefore, the plaintiff has under-valued this originating summons. In view of the nature of the claim I accept the plaintiff's assertion that the claim was not capable of being objectively valued. In the aforesaid view of the matter the fact that the suit has been valued at Rs. 100/- cannot be said to be incorrect or incomplete. In the premises, I give the answer to question no. (d) as formulated and indicated before. The other question in the view of the disputed facts I decline to answer. In this case I direct the parties to pay and bear their own costs.
Answer accordingly."15
18) In Sri Ratnavaramaraja vs Smt. Vimla, AIR 1961 SC 1299, Hon'ble Supreme Court has observed thus:
"The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognizing that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court of the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. Howe by an order relating to the adequacy of the court- fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under s. 115 of the Code of Civil Procedure is strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move 16 the superior court by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court-fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the Court. Reliance in support of that contention is placed upon sub- s. (2) of s. 12. That sub-section, in so far as it is material, provides:
"Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim....plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the court decides that the subject- mater of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a date before which the plaint shall be amended in accordance with the court's decision and the deficit fee shall be paid....."
19) Hon'ble Allahabad High Court in Radha Charan Das vs Th. Mohini Behariji Maharaj and others, AIR 1975 ALLAHABAD 368, in para 2 of said judgment, has observed thus:
17"The brief facts are these. The plaintiffs filed the suit against the defendant seeking the relief of mandatory injunction removing the defendant from the Tattisthan and a prohibitory injunction was also claimed that he should not frequent the said Tattisthan and should not interfere with the management of the same and the other properties connected therewith. These reliefs were claimed in Cl. (a) of the reliefs claimed in the plaint. In clause (b) of the reliefs claimed in the plaint, the plaintiff sought that if in the opinion of the Court it was necessary, then the possession of the office held by the defendant be given to the plaintiffs. In the body of the plaint it was alleged that the plaintiff no. 1 Thakur Mohini Behariji was an idol Birajman in the temple situated on the Tattisthan. The entire property vested in the idol and the management of the idol was entrusted to the plaintiff nos. 2 to 6 who were the trustees. It was further alleged that the trustees appointed a person who looked after and managed the affairs of the idol and such person was described as the Mahant. By an agreement dated 30th September, 1937 the defendant was appointed such Mahant and he was a licensee and agent of the plaintiffs bound by the terms of the agreement. The defendant committed breach and acted against the terms laid down in the said agreement. Some of the breaches were detailed in clauses (a) to (d) of paragraph 5 of the plaint. Certain complaints against the defendant were lodged with the plaintiffs against the defendant were lodged with the plaintiffs and the trustees enquired into the said complaints and found them to be correct. An explanation was sought from the defendant but he submitted none. Hence the trustees (plaintiffs nos. 2 to
6) acting on behalf of the idol (plaintiff no. 1) held a 18 valid meeting and removed the defendant from his office.
In paragraph 8(a) of the plaint it was stated that the defendant had removed many valuable manuscripts and religious books from the Tattisthan and had buried some of these books in the ground and some of the books were thrown into the river Jamuna. It was further alleged that the defendant was denying the rights and title of the plaintiff no. 1 and he was also denying the right of management of the plaintiff nos. 2 to 6. In fact, he was denying that the plaintiff nos. 2 to 6 were the trustees and he claimed the right of management in himself. On all these grounds the defendant was no fit to continue in the office of the Mahant and he was fit to be removed from the said office. In paragraph 8(b) of the plaint it was alleged that the defendant had alienated a property owned by the plaintiff no. 1 and situated in Madhya Pradesh and this was done without the knowledge and permission of the plaintiffs trustees and he (the defendant) had misappropriated and squandered the receipts from the sale of the said properties. It was further alleged that the alienation of the said property was made on the false representation that the property belonged to the defendant. On all these grounds the defendant was unfit to continue as the Mahant and was liable to be removed from the said office. In paragraph 9 of the plaint it was stated that the defendant was directed to remove himself from the tattisthan and not to visit the same and not to interfere in the management of the same, but he did not pay any heed to the plaintiff's direction. In paragraph 10 of the plaint it was stated that the plaintiff was entitled to a mandatory injunction removing the defendant from the Tattisthan and the plaintiffs were also entitled to a prohibitory injunction against the defendant restraining 19 him from frequenting the Tattisthan and from interfering with the management of the same. Further, in case it was found necessary that possession should be got back from the defendant, then the plaintiffs were also entitled to get back possession. In paragraph 12 of the plaint it was said that for the purposes of determining the jurisdiction of the Court and paying court fee the suit was being valued at Rupees 500/- as the property in question belonged to the idol. Further, the office and the management were not capable of any valuation. Hence court-fee was paid on the said amount of Rs. 500/-."
20) The observations by a Full Bench of Hon'ble Madras High Court in Rajagopala Naidu vs Ramasubramania Aiyar and another, AIR 1924 Madras 19, are being excerpted here-in-below for reference:
"I am of the opinion that under the Court Fees Act a temple which is mainly the abode of the deity cannot be said to be a "house" the "market value" of which is capable of being ascertained. A temple being extra commercium is ex hypothesi incapable of having a market value. It is well known that, to construct structures similar to numerous temples in India, sums amounting to lakhs or tens of lakhs of rupees would be required, and I do not think that the Legislature intended that a Court-fee should be levied on what is described before us as the "market value" of the temples. I am therefore inclined to hold that it is not possible to estimate at a money value, a temple and the idols in it and that, in any event, so far as the subject matter comprises the aforesaid, the case falls within Art. 17B of 20 the Schedule II of the Court-fees Act V of 1922. (Mad. Amending Act.)"
21) Learned counsel for the respondents drew attention of this Court towards Section 149 of the Code of Civil Procedure, which is being referred here-in-below for convenience:
"149. Power to make up deficiency of Court-fees. - Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."
22) In Dan Singh and others vs Khaleel Higher Secondary School, Kutubkhana, Bareilly through its Principal, 2007 (103) RD 21, the learned Single Judge of the Allahabad High Court observed as below:
"In the present case, the defendant/respondents filed a composite written statement and counter-claim, which are brought on record. Perusal of the counter- claim shows that later part of the written statement is counter-claim, valuation has been given, cause of action and relief has been mentioned as well as the Court fee is paid. In the circumstances, I am not in agreement with the submission of the Counsel for the appellants that the counter-claim was not in proper format and was liable to be dismissed on this ground alone. The lower appellate 21 court has discarded objection of the plaintiff/appellants on the ground that injunction suit was valued at Rs.1,000/- by the plaintiffs and the court fee paid was Rs.189.50 paise in accordance with Schedule 1 of he Court Fees Act and, therefore, claim of possession by the defendants in the counter-claim was also for the same property and the lower appellate court recorded a categorical finding that no two different yardsticks can be adopted while assessing valuation of the same property, which is subject matter of the same suit. Perusal of the lower appellate court's judgment clearly shows that cogent reasons have been given while rejecting the objection of the plaintiffs."
23) Thus, no two different yardsticks can be adopted while assessing valuation of the same property which is subject matter of the same suit. The plaintiffs have valued the suit at rupees six lakhs. The defendants, in the counter-claim, have also valued the suit property at rupees six lakhs and, accordingly, the court fee was paid by the plaintiffs as well as by the defendants (in their counter-claim). The reliefs sought by them are almost identical. In response to a query as to why the plaintiffs have not valued the suit property according to its market value, learned Senior Counsel for the petitioners/plaintiffs replied that the same has not been challenged by the defendants, whereas the plaintiffs have challenged the valuation of the suit property by the defendants in their counter-claim. The question is whether two different yardsticks can be adopted by the plaintiffs while valuing their suit and while assailing the 22 valuation of the suit property in the counter-claim, especially, when the subject matter of the dispute is the same.
24) In First Appeal no. 14 of 2011, Bihari D. Chhabaria vs Mohan Das Disciple of Swami Uttam Das Udasin and 8 others, decided by a co-ordinate Bench of this Court on 05.05.2015, a preliminary issue regarding to the valuation of suit and payment of court fee was formulated. Since the property, in question, was in the nature of public charitable trust, so it was tentatively assessed at rupees ten lakhs for seeking the relief of declaration and injunction. Defendant no. 1 in that case, pleaded that since the possession of the property has been sought from him, so its value should have been assessed on the market rate and ad valorem court fee should have been paid. The Court, however, got the market value assessed through its Amin and the suit was valued accordingly. The said order was challenged by the plaintiff by filing Civil Revision. It is not necessary to reproduce the history of the said Civil Revision. Suffice will it be to say that the question of suit valuation and payment of court fee came up before the co-ordinate Bench of this Court in First Appeal no. 14 of 2011.
25) In the first appeal, i.e. F.A. No. 14 of 2011, it was contended on behalf of the plaintiff/appellant that the suit is not to be valued on the market value of the 23 property, inasmuch as such property was being claimed as that of the public charitable trust used for benevolent and religious purposes. The co-ordinate Bench of this Court has held that the suit valuation must have not been assessed on the market rate and, therefore, there was no question of asking the plaintiff to pay the ad valorem court fee. This Court does not know as to whether the order dated 05.05.2015 was challenged before the Hon'ble Apex Court or not?
26) Neither a public charitable trust can be transferred, nor purchased, nor sold and has, therefore, no market value.
27) When the hearing resumed today, an affidavit of Rohit Giri alongwith a copy of order dated 02.04.2016 (Annexure no. 1) passed by learned I Additional District Judge, Haridwar has been filed by learned counsel for the respondent no. 1 to show that the issue of court fees has been decided against the defendants nos. 1 to 3, who had filed the counter claim. The court below was held that court fee paid by the defendants no. 1 to 3, in the counter claim, is not sufficient. They were directed to make good the deficient court fee.
28) It is the statement of learned counsel for the defendant nos. 1 to 3 that the deficient court fee 24 has been made good and the suit has been listed for final hearing.
29) Learned counsel for the parties, therefore, submit that present writ petition has rendered infructuous.
30) In view of the above statement, the writ petition stands disposed of as infructuous.
(U.C. Dhyani, J.) Dt. April 27, 2016.
Negi 25