Calcutta High Court (Appellete Side)
Smt. Sova Rani Dutta vs Sri Ashis Kumar Dutta & Anr on 6 August, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 1062 of 2013 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Smt. Sova Rani Dutta.
Versus Sri Ashis Kumar Dutta & anr.
For the petitioner: Mr. Amitabha Ghosh. For the opposite parties: Mr. Joy Saha, Mr. Subhojit Saha.
Heard On: 17.07.2013.
Judgement On: August 6, 2013.
Prasenjit Mandal, J.: This application is at the instance of the plaintiff and is directed against the Order No.12 dated September 15, 2011 passed by the learned Civil Judge (Senior Division), 2nd Court, Barasat in Title Suit No.12 of 2011 thereby directing the plaintiff to pay the ad valorem court fees on the valuation of the property mentioned in the alleged deed of gift.
The plaintiff/petitioner herein instituted the aforesaid title suit for a decree of declaration that the alleged gift deed bearing No.2423 of 2010 is not acted upon and binding upon the plaintiff, a decree of declaration that the alleged deed of gift is prepared fraudulently and by practising fraud upon the plaintiff, a decree of permanent injunction restraining the defendant no.1 not to enter into the suit property and/or physical possession and not to disturb the plaintiff in the suit property and/or not to cause wastage or damage of the suit property and/or not to change the nature and character of the suit property and other consequential reliefs.
The defendants are contesting the said suit and they filed an application under Section 151 of the C.P.C. contending, inter alia, that the suit has not been properly valued at the time of institution and as such, the plaintiff should be directed to pay the ad valorem court fees on the valuation as made in the deed of gift. That application was allowed by the impugned order. Being aggrieved, this application has been preferred.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the deed of gift in question is the subject matter of the suit and the reliefs sought for by the plaintiff / petitioner herein are over the said deed of gift challenging that the deed was not acted upon and binding upon the plaintiff and that the same was obtained by practising fraud upon the plaintiff. The valuation of the deed of gift has been made to the tune of the Rs.19,78,640/-.
Mr. Amitabha Ghosh, learned Advocate appearing for the petitioner, has contended that since this is a suit for declaration and permanent injunction, according to the provisions of Section 7(iv)(c) of the Court-fees Act, 1870, when a suit is for declaration and consequential relief, such as, injunction, Court fees are payable according to the amount at which the reliefs sought for is valued in the plaint, i.e., the own declaration of the plaintiff as has been done in the case.
In support of his contention, he has relied upon the decisions of Paresh Chandra Nath v. Naresh Chandra Nath & ors. reported in 2006(1) CHN 526 and submitted that when a suit is for declaration simpliciter and the relief for setting aside the deed is consequential, the suit is not required to be valued on valuation of the property. He has also relied on the decision of Suresh & ors. v. Chand & ors. reported in AIR 2007 Allahabad 113 and thus, he has submitted that when the suit relates to declaration to be half owners of property in question on the basis of a registered will left by their mother and the second relief was for cancellation of the sale deed executed by the defendant in respect of their alleged share of the property, the suit was not for cancellation of an instrument securing money and other property having a market value. So, the provisions of Section 7(iv)(A) as applicable in Uttar Pradesh or Article 17(iii) of the Court-fees Act, 1870, would not be applicable. Section 7(iv)(a) would be applicable inasmuch as the provision applies to suit filed for obtaining declaratory decree with consequential relief.
On the other hand, Mr. Joy Saha, learned Advocate appearing for the opposite parties, has contended that in consideration of the reliefs sought for by the plaintiff, the claim by the petitioner is virtually for cancellation of the deed of gift in question and other reliefs. Under such circumstances, according to him, the provisions of Section 7(iv)(c) of the Court-fees Act, 1870 would not apply.
Mr. Saha has relied on the decision of Shamsher Singh v. Rajinder Prashad & ors. reported in MANU/SC/0261/1973 wherein it has been clearly indicated that the relief for declaration that the alienation not binding on other members of the family really have the effect of declaring execution decree as null and void - in such circumstances plaintiff is bound to pay the Court fees as per valuation of property given in the plaint. This is the judgment of the Division Bench and as such, in my view, this has the binding effect on us under Article 141 of the Constitution.
He has also relied on the decision of Jai Singh v. Jai Bhagwan & ors. reported in MANU/PH/0362/2000 and thus, he has contended that when the suit is for cancellation of a sale deed, then, of course, the plaintiff could have been asked to pay the ad valorem court fees in view of the observations of the Apex Court in Anil Rishi v. Gurbaksh Singh reported in MANU/PH/0223/1998.
He has also relied on the decision of Chellakannu, Son of Pichamuthu v. Kolanji, wife of Shanmugam reported in MANU/TN/0747/2005 wherein it has been held that when the allegation in the plaint in substance amounted to cancellation of a document but the prayer was couched in form of seeking declaration that the document was not valid and not binding, the relief in substance indirectly amounted to seeking for cancellation of a deed - Therefore, the Trial Court was right in ordering the payment of the Court fees under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955.
While deciding the issue, the learned Trial Judge has also referred to the decision of Goutam Ghosh v. Magma Fincrop Ltd. reported in 2009(4) CHN 425 (passed by a Division Bench of this Hon'ble Court), wherein this Single Bench was a Member of the Division Bench, it has been decided therein that when the amount of the loan of Rs.17 lac is an admitted fact, the suit for declaration should have been valued at the amount which was admittedly received and the plaintiff was directed to pay ad valerom court fees on the amount claimed therein, although the suit was valued at Rs.50/- for declaration and further sum of Rs.50/- for permanent injunction.
The learned Trial Judge has also referred to the decision of Suhrid Singh @ Sardool Singh v. Randhir Singh & ors. reported in 2010(2) CHN (SC) 156 wherein it has been held that where a suit is for declaration that the sale deeds were void and not binding upon the coparcenary and for consequential relief of joint possession - The Trial Court and the High Court held that the ad valorem court-fees are to be paid on the sale consideration in respect of the sale deed since the prayer relating to sale deed amounted cancellation of the sale deed. The plaintiff is required to pay fixed court fees of Rs. 19.50 under Article 17(iii) of the Second Schedule to the Act when he is a non-executant and is in possession and simply sues for a declaration. But if a non-executant is not in possession and seeks not only for a declaration that the sale deed is invalid, but also consequential relief of possession, he has to pay an ad valorem court fees as provided under Section 7(iv)(c) of the Act and so, the plaintiff is required to pay the court fees computable under Section 7(iv)(c) of the Act of 1870 as amended in Punjab.
If the executant of deed, seeks cancellation of the deed, he has to pay ad valorem court fees on the consideration stated in the sale deed.
Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the decisions referred to, in my view, the decisions of Paresh Chandra Nath (supra) will not be applicable because the relief sought for in the instant suit is not for declaration simplicitor and consequential relief but in effect a decree for cancellation of the deed and other reliefs. So, the case of Paresh Chandra Nath (supra) is quite distinguishable from the present case and as such, I am of the view that this decision will not be applicable.
Similarly, the decision of Suresh & ors. (supra) is quite distinguishable from the instant suit as the said suit was filed only for declaratory relief with consequential reliefs. In order to ascertain the reliefs sought for, the entire plaint including the reliefs sought for is to be considered and then it is to be decided what are the reliefs actually meant for by the prayers made in the plaint. As noted above, the present suit having come within the virtually relief for cancellation of the deed of gift in question, I am of the view that the plaintiff is required to pay the ad valorem court fees on the valuation indicated in the deed of gift in question. The contention of the petitioner that Section 7(iv)(b) of the West Bengal Court-fees Act, 1970 would be applicable cannot be accepted. In my view, the ratio of the decisions of Shamsher Singh (supra), Suhrid Singh @ Sardool Singh (supra) and Goutam Ghosh (supra) would be applicable in the instant suit.
The reliefs claimed are, therefore, under valued. The learned Trial Judge shall direct the plaintiff to correct the value of the reliefs properly in the plaint within a specified time and to pay the ad valorem court fees thereon. After amendment of the valuation of the plaint, the learned Trial Judge shall proceed with the suit in accordance with law. If not done so, he shall pass appropriate orders of rejection of the plaint under Order 7 Rule 11(b) of the C.P.C. Accordingly, in my view, the learned Trial Judge has rightly addressed the issue and he has rightly allowed the application under Section 151 of the C.P.C. filed by the defendant.
The suit will not be governed by the provisions of Section 7(iv)(c) of the Court-fees Act, 1870.
In that view of the matter, I am of the opinion that there is no scope of interference with the impugned order. So, the impugned order should be sustained.
The application is, therefore, disposed of in the manner indicated above.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)