Patna High Court
Bishwanath Agarwalla vs Smt. Nathi Bai Sharma And Ors. on 27 July, 1972
Equivalent citations: AIR1972PAT487, AIR 1972 PATNA 487
JUDGMENT G.N. Prasad, J.
1. The petitioner is the plaintiff of Title Suit No. 34 of 1971 in tie Court of the First Subordinate Judge at Dhanbad. He has filed this application in revision against the order of the learned Subordinate Judge dated the 23rd August, 1971, demanding court-fee on the plaint on ad valorem basis, after rejecting the petitioner's contention that he is liable to pay a fixed court-fee of Rs. 22.50, inasmuch as the suit which he had instituted is purely one for declaration only. According to the learned Subordinate Judge, the suit is really one for declaration with a consequential relief, for which the plaintiff is liable to pay ad valorem court-fee amounting to Rs. 618.75.
2. Mr. Bishwanath Agrawal, who has appeared on behalf of the petitioner, has taken me through the plaint, a copy of which is Annexure "1" to the revision application. Learned Counsel has drawn my attention to the reliefs as claimed in paragraph 19 of the plaint, which are to the following effect:
"That the plaintiff therefore prays
(a) that a decree may be passed in favour of the plaintiff as against the defendant declaring that the decree dated 2-8-67 passed by Munsif 1st. Court in Title Suit No. 193 of 1966 is without jurisdiction, null, void and inoperative and bad and is not executable;
(b) A decree for costs of the suit;
(c) A decree for any other or further reliefs to which the plaintiff is entitled to."
Learned counsel has also drawn my attention to paragraph 14 of the plaint which reads:
"That the. decree is a nullity, without jurisdiction, void and inoperative and the defendants have no right to execute the same."
3. It is well established that in order to determine whether a suit is one for a mere declaration or for a declaration and consequential relief, the Court must look to the real nature of the plaint, shorn of its verbiage, and decide what is its real substance, as opposed to its ostensible form. Even where a mere declaration is sought, the Court must look to the real nature of the plaint and consider whether or not the plaintiff has also sought some consequential relief by necessary implication. If the Court finds that the suit is for a mere declaration with no consequential relief, then it cannot call upon the plaintiff to pay ad valorem court-fee. On the other hand, if it finds that though ostensibly the suit is one for a mere declaration, but some consequential relief is involved therein by necessary implication, then it must call upon the plaintiff to pay court-fee on ad valorem basis. I am tempted in this context to repeat what I said in Ramkishun Mahton v. Smt. Nero Devi, AIR 1965 Pat 486. This is what I said at page 488 of the report "In approaching this question, we must bear in mind that there is a distinction between decrees or documents which are wholly void and decrees or documents which are not wholly void, but voidable on account of causes like fraud, mistake or undue influence. The importance of this distinction lies in the fact that so far as wholly void decrees or documents are concerned, they do not require to be set aside since they have no existence in the eye of law and only a finding of fact is necessary to give the plain plaintiffs the necessary relief. In cases of voidable decrees or document1;, on the other hand, it is necessary to have them set aside before the relief claimed in the plaint can be granted to the plaintiff. It is well established that in cases of the latter category, the Court has to make a declaration in the true sense and, therefore, the true nature of the relief claimed in such cases, is that of declaration and consequential relief, as envisaged in Section 7 (iv) (c) of the Court-Fees Act. But the cases or the former category, stand on a different footing, because in those cases no declaration is necessary in the true sense and only a finding of fact is necessary to the effect, that the impugned document or decree is wholly void and as such it has no existence in the eye of law, so as to stand in the way of giving the relief, which the plaintiff-has claimed. Such cases do not fall within Section 7 (iv) (c) or 7 (v) of the Court-Fees Act."
In Ramkishun Mahton's case, AIR 1965 Pat 486 (supra), I further pointed out that in order to determine whether the relief sought is one for a declaration in the true sense or one of declaration with consequential relief, the Court has to look to the impugned document or the decree and to see whether the plaintiff was a party to it or not. If the Court finds that the plaintiff was not party to the impugned transaction or the decree, then the Court must hold that the suit is one for a mere declaration, inasmuch as the Court has only to record a finding to that effect. In the reported case, the impugned transaction which was one of a compromise, was assailed on the ground that the signature of the plaintiff appearing thereon was a rank forgery, meaning thereby that the plaintiff was not party to it. I, therefore, took the view that it was not a case of a declaration in the true sense and that the plaintiff was not liable to pay court-fee on ad valorem basis. It must follow that where the plaintiff is a party to the impugned transaction or decree, the declaration sought in the suit involves a consequential relief by necessary implication, because in such category of cases, the plaintiff cannot get any relief unless the court comes to the conclusion that the impugned document or decree is not binding upon the plaintiff.
4. In regard to a decree to which, the plaintiff was a party, it is impossible to hold that the suit brought for its declaration as void is one for a mere declaration. Such a suit must necessarily be one for a declaration with consequential relief for the simple reason that no declaration can be granted to the plaintiff as sought without setting aside the decree to which he was a party on some ground or the other. Reference may be made in this context to the observations of B. P. Sinha, J., (as he then was) in the Full Bench decision in Ramdeo Singh v. Raj Narain Singh, AIR 1949 Pat 278 (KB). At page 286 of the report his Lordship referred to a Division Bench decision of the Calcutta High Court in Raj-lakshmi Dasee v. Katyayani Dasee, (1911) JLR 38 Cal 639 and distinguished that case by observing thus:
"Those observations of their Lordships of the Calcutta High Court, in my opinion, do not apply to the facts of the present case, inasmuch as those observations were made in relation to a litigant who was not a party to the decree which was impugned as void for want of pecuniary jurisdiction. In the present case the appellants were defendants to the suit, and could and should have raised, at the earliest opportunity, an objection to the under-valuation. They have taken a judgment against themselves. Is it open to them to ignore that judgment as a mere nullity? In my opinion, it is not. The Code of Civil Procedure has made pro-Visions for getting rid of a judgment by a party against whom that judgment may have been given. That judgment may be without jurisdiction; but it would still be binding on the parties to that judgment unless, of course, it is vitiated for other reasons, for example, fraud on the Court or on any of the parties. The Appellate Court, or a Court of revision tinder Section 115 of the Code, is certainly entitled to set aside a judgment which is vitiated by the Court which rendered it exceeding its powers; but, so long as the judgment stands, it is binding on the parties."
The same principle was adverted to by Meredith, J., (as he then was) sitting singly in Shyam Sunder Singh v. Kaluram Agar-wala, AIR 1949 Pat 291. At page 293 of the report his Lordship observed:
"My second reason is this. A sale by the Court of property which the Court has no jurisdiction to sell may be nullity in the sense that it can be ignored by any third party, but it is not a nullity as between the parties to the proceedings. Where a sale Is made by the Court in the very presence of the judgment-debtor, he being a party to the execution proceedings, and after consideration of all objections made by him and rejection thereof, the judgment-debtor cannot assert that it is a complete nullity so far as he is concerned. He cannot, in my judgment, get any relief as against the Sale unless he can get that sale set aside. The position is similar to that in the case of a decree passed by a Court without jurisdiction. As regards third parties, it may be a nullity fit to be ignored, but as between the parties to the suit it can only be avoided, even on the score of want of jurisdiction, by getting it set aside."
His Lordship further observed:
"No party to a legal decision of a properly constituted Court can be heard to say that it is a complete nullity which he can ignore, though he may, in suitable cases, get it set aside for want of jurisdiction or other proper cause."
5. In the instant case, as the plaint Itself shows, the plaintiff was a party to the Title Suit of 1966, the decree in which is sought to be declared as without jurisdiction, null and void. Further, it appears that the decree has been put under execution in Execution Case No. 100 of 1967. Paragraph 15 of the plaint shows that the plaintiff had also filed an objection in the execution case under Section 47 of the Code of Civil Procedure, which was rejected. It has been clearly stated in paragraph 16 that no other remedy being available to the plaintiff, he has instituted the present suit for declaration. Upon the principles adopted in the two cases reported in AIR 1949 Patna, to which I have already referred, the conclusion must be that though framed as a suit for a mere declaration, it is really a suit for declaration with consequential relief. Therefore, the plaintiff is liable to pay ad valorem court-fee on his plaint under Section 7 (iv) (c) of tile Court-Fees Act.
6. It is, however, necessary to refer to two decisions of this Court which have been cited by Mr. Bishwanath Agarwal. One is the decision of H.K. Choudhuri, J., sitting singly in Abdul Hassan v. Rajbansi Dass, 1958 BLJR 390. There the question was whether the plaintiff was liable to pay Courtfee on ad valorem basis in a suit brought by him for declaration that a zarpcshgi deed which he had executed in favour of the defendant was farzi, without consideration and had conferred no title upon the defendant. His Lordship took the view that a plaintiff need not sue for cancellation in all cases in which, he is a party to an instrument. But if the instrument is not absolutely void, he must sue for its cancellation because unless it is set aside, it will be binding upon him. In the latter event, the plaint would be deemed to include a prayer for cancellation although in form it seeks only a declaratory relief. On the other hand, if the instrument is absolutely void, a mere declaration would enable the plaintiff to avoid it, although he was a party to the instrument. The true test, according to his Lordship, is "if a judicial setting aside of the instrument is necessary". Applying that test to the case in hand, his Lordship held that the plaintiff was not liable to pay ad valorem court-fee as he had attacked the instrument as sham and void absolutely. It will thus be seen that the decision of H.K. Choudhuri J., proceeded upon the particular facts and circumstances or the case. His Lordship did not lay down any different principle, contrary to the principle laid down in the two cases reported in AIR 1949 Patna, to which I have already referred. On the contrary, his Lordship affirmed the same principle by observing that the true test was whether a judicial setting aside of the instrument was necessary in the particular case. Here, as I have already indicated, the plaintiff cannot get the declaration which he seeks unless the decree passed against him in Title Suit No. 193 of 19G6, which is staring him in the face, is set aside for mistake of law or some other ground. Therefore, the decision of H.K. Choudhuri, J., does not assist the petitioner.
7. The other decision upon which Mr. Agarwal relies is a Bench decision in Harekrishna Das v. Sunamani Dei, AIR 1940 Pat 158. The relevant facts of that case were that the reversioners had instituted a suit whereby they had challenged sixteen alienations made by a Hindu widow and had asked for declaration that they did not bind the reversioners. But they had paid a fixed court-fee which was then Rs. 15/-. Following a Bench decision of the Madras High Court in Daivachilaya Pillai v. Ponnathal (1895) 18 Mad 459, Harries, C. J., held that the plaintiff must pay Rs. 15/- as court-fee in respect of each of the alienations. Therefore, no question arose in AIR 1940 Pat 158 as to whether the plaintiffs there were liable to pay ad valorem court-fee or not. This was naturally so because the plaintiffs in that suit were not party to the alienations which they had impugned in the suit, nor the widow who had made those alienations was in law the predecessor-in-interest of the reversioners. Therefore, this decision also is of no assistance to Mr. Agrawal
8. For the above reasons I hold that the order of the learned Subordinate Judge is correct. This application fails and is, accordingly, dismissed with costs. Hearing fee Rs. 32/-.