Gujarat High Court
Ghodadara Batukbhai Mepabhai & 2 vs Jikadara Panbaiben Lavjibhai & on 12 March, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/178/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 178 of 2013
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GHODADARA BATUKBHAI MEPABHAI & 2....Petitioner(s)
Versus
JIKADARA PANBAIBEN LAVJIBHAI & 1....Respondent(s)
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Appearance:
MR VM PANCHOLI, ADVOCATE for the Petitioner(s) No. 1 - 3
NOTICE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 12/03/2014
ORAL ORDER
Heard learned advocate for the petitioners. 1.1 Though served, no one has entered appearance for the respondents.
1.2 In this case, the Court issued notice to the respondents vide order dated 10.1.2013. Since then more than about one year has passed, however, the respondents have not entered appearance and any reply opposing the petition is not filed.
2. The petition involves and raises issue related to pecuniary jurisdiction of the Court to try the Page 1 C/SCA/178/2013 ORDER suit.
3. In present petition, the petitioners have brought under challenge an order dated 29.11.2012 passed below application (Exh.10) submitted by the defendants under Section 9 of the Civil Procedure Code ["Code" for short], whereby the said application (Exh.10) is rejected. The petitioners are aggrieved by the said order. Hence, present petition.
4. In the suit proceedings, the petitioners herein are the original defendant Nos.1 to 3 and the respondent No.1 herein is the original plaintiff, whereas the respondent No.2 herein is the original defendant No.4.
4.1 The respondent No.1 herein has filed a suit for declaration and injunction on the allegation that the defendants are obstructing peaceful possession and enjoyment of their property and therefore, declaration and permanent injunction against the respondents restraining them from disturbing his i.e. plaintiff's possession over the suit property may be Page 2 C/SCA/178/2013 ORDER issued.
4.2 While the suit was pending for further proceedings, the defendant Nos.1 to 3 submitted an application under Section 9 of the Civil Procedure Code and requested the learned trial Court to dismiss the suit for want of pecuniary jurisdiction claiming that the valuation of the land is more than Rs.4 lakhs and that therefore, the learned trial Court where the suit is filed does not have pecuniary jurisdiction to entertain the suit.
4.3 The learned trial Court considered the said application and also considered the submissions by contesting parties. Thereafter, the learned trial Court passed the impugned order dated 29.11.2012 and rejected the application holding, inter alia, that having regard to the dispute, the subject matter of the dispute and the relief prayed for by the plaintiff are not susceptible to monetary valuation and therefore, the suit is valued for the purpose of jurisdiction to Rs.300/- and for the purpose of court fees at Rs.100/- which is in consonance with the Page 3 C/SCA/178/2013 ORDER provisions under Section 6(12) of the Gujarat Court Fees Act, 2004 read with the Suit Valuation Act, 1887.
5. Learned advocate for the petitioners submitted that the suit in question is filed in respect of certain parcel of land and the constituted attorney of the owner of the land has executed a sale deed in their (i.e. in petitioners') favour and sold the land in question for consideration of Rs.4 lakhs and that therefore, the valuation of the suit land is about, or more than, Rs.4 lakhs. On such ground, learned advocate for the petitioners contended that the learned trial Court (where the suit is filed) does not have pecuniary jurisdiction to try the suit, however, the learned trial Court failed to appreciate the said contention. According to the learned advocate for the petitioners, the impugned order deserves to be set aside and the suit is required to be rejected.
6. I have heard learned advocate for the petitioners and also considered the material on Page 4 C/SCA/178/2013 ORDER record.
7. It is pertinent to mention at the outset that in the suit/plaint the plaintiff, i.e. respondent No.1 herein, has asserted that they (i.e. the plaintiffs) are owners and in possession and occupation of the land in question, however, the defendants are trying to disturb their (i.e. plaintiff's) possession and occupation over the land which is not only in petitioner's possession and occupation, but even the ownership and title of the suit land is in name of the plaintiff's husband and even the revenue record reflects name of plaintiff's husband and he continues as owner and occupier of the land in question. 7.1 On such premise, the plaintiff prayed for declaration that the respondents have no right to enter into the suit land. The petitioner also prayed for order of permanent injunction restraining the defendants from obstructing the possession (of the plaintiff).
7.2 Thus, the suit is for declaration and permanent Page 5 C/SCA/178/2013 ORDER injunction wherein any declaration as regards ownership of land is not prayed for.
8. In the said suit, the petitioners herein i.e. the defendants, in light of and on the strength of a sale deed allegedly executed in their favour by the constituted attorney of the landlord (i.e. the husband of the plaintiff), filed an application dated 3.8.2012 purporting to be an application under Section 9 of the Code and claimed that for the purpose of jurisdiction of the Court competent to try the suit, the suit should be valued at Rs.4.00 lakhs and that having regard to the value of said sale deed, the Court of learned Senior Civil Judge can try the suit and the Court where the suit is filed (i.e. Court of learned Civil Judge) does not have pecuniary jurisdiction to try the suit.
The learned trial Court heard the parties and rejected the said application vide impugned order dated 29.11.2012.
9. On plain reading of the plaint and the material on record, it appears that in the subject suit the Page 6 C/SCA/178/2013 ORDER plaintiff has not challenged the sale deed and any declaration against or with reference to the said sale deed is not prayed for by the plaintiff and any relief in connection with the sale deed is not prayed for. The said sale deed (reference of which is made by the defendant) is not the subject matter of the suit. The plaintiff has also not prayed for order - decree of possession of or declaration as regards possession of the suit property and/or any declaration as regards the title and ownership of the property in question. The learned trial Court, therefore, in present case, has held that the amount mentioned in the alleged sale deed cannot be the base or criterion for deciding value of suit. Even otherwise, the allegations in defendant's reply / written statement cannot form the basis for suit valuation. The subject matter of the suit, the details in the plaint and relief prayed for in the plaint determines the suit valuation. 9.1 The learned trial Court has described the case of the plaintiff thus:-
"6. In the present case, the plaintiff - Panbaiben Page 7 C/SCA/178/2013 ORDER Lavajibhai Jikadra has filed the suit against the defendants for the relief of declaration that no any person except the plaintiff has right to enter and use the land bearing Revenue Survey No.97 P5 admeasuring Hectare 3-77 Are - 37 Sq. Mtrs. situated at Village:
Vanot, Taluka : Savarkundla; for further declaration that the defendants do not have any right or interest in the suit land recorded in the name of her husband and the plaintiff and her husband has right and interest in the suit land; for perpetual injunction restraining the defendants from legally using the sale deed or gift deed executed in respect of the suit land without the consent of the plaintiff and her husband; and for further perpetual injunction restraining the defendants, their agents and/or servants from entering into the suit land and from carrying out agricultural operations therein and taking yield therefrom and from causing any hurdles or obstacles in the plaintiff doing work in the suit land. In the present matter, the suit land is bearing Survey No.97 P5 admeasuring 3 Hectare - 77 Are-37 Sq. mtrs. situate at Village: Vanot, Tal. Savarkundla."
9.2 The learned trial Court has further described the subject matter of the suit thus:-
"...that defendant No.4 has in collusion with defendant Nos.1 to 3 executed sale deed in favour of defendant Nos.1 to 3 in respect of the suit land by affixing fraudulent thumb impression of her husband and fabricating false and frivolous power of attorney though her husband is insane and accordingly, the suit land is recorded in the revenue records in the name of defendant Nos.1 and 2; that the plaintiffs administers the affairs of the aforesaid lands recorded in the name of her husband in the revenue records and the said lands are in Page 8 C/SCA/178/2013 ORDER her possession; that since the defendant Nos.1 to 3 are causing hurdles in the plaintiff entering into the suit land carrying out agricultural operations, the suit is required to be filed. It is thus clear from the pleadings and the relief clause that the suit is filed by the plaintiff for the declaration and permanent injunction against the defendant in respect of the suit land."
10. In light of the plaintiff's case in the plaint and upon considering the provisions under the Suit Valuation Act and the Gujarat Court Fees Act, the learned trial Court came to the conclusion that the valuation of the subject matter of the suit is not susceptible to the valuation and that therefore, the plaintiff is entitled to set-up valuation for jurisdiction and for court fee. Having reached such conclusion, the learned Court rejected the application under Section 9 of C.P.C. vide impugned order dated 29.11.2012. In the impugned order, learned trial Court has observed that:-
"7. For the adjudication of the present application, it will be advantageous to refer to Section 4 of the Suits Valuation Act, 1887 and Section 6(12) of the Gujarat Court Fees Act, 2004. Section 4 of the Suits Valuation Act provides that where a suit mentioned in the Court fees Act, 1870, Section 7, paragraph iv, or Schedule II, article 17, relates to land or an interest in land of which the value has been determined by rules under the Page 9 C/SCA/178/2013 ORDER last foregoing section, the amount at which for purpose of jurisdiction the relief sought in the suit is valued shall not exceed the value of the land or interest as determined by those rules. Section 6(iv)(j) of the Bombay Court Fees Act is in pari materia with Section 6(12) of the Gujarat Court Fees Act, 2004. Section 6(12) of the Gujarat Court Fees Act provides that in suits where declaration is sought, with or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act, the Court fees shall be Rs.100/- and in all suits under clauses (b), (c) and
(d) of clause (3) and clauses (4) to (11), the plaintiff shall state the amount at which he values the relief sought, with the reasons for the valuation.
8. Now, Section 6(12) of the Gujarat Court-Fees Act, 2004 refers to suits where declaration is sought with or without injunction or other consequential relief and the subject-matter in dispute is not susceptible of monetary evaluation. It is obvious on a combined reading of Section 4 and Section 6(12) that where a suit mentioned in Section 6(12) and that would be a suit in which the subject-matter in dispute is not susceptible of monetary evaluation -
related to land or interest in land, is filed, the plaintiff may value the relief sought in the suit for the purpose of jurisdiction but such valuation shall not exceed the value of the land or interest as determined by the rule made under Section 3. If these two provisions are conjunctively read, then, it is clearly contemplated that even in a suit in which the subject-matter in dispute is not susceptible of monetary evaluation the plaintiff may put his own valuation on the relief sought in the suit for purpose of jurisdiction. There would always be a valuation of the subject-matter for the purpose of jurisdiction even in case where the subject-matter is of such a nature that it is ordinarily not capable of being satisfactorily valued in terms of money. Even if the subject-matter of a Page 10 C/SCA/178/2013 ORDER suit or proceedings is not susceptible of the monetary evaluation, it must be valued by the plaintiff for the purpose of jurisdiction and the jurisdiction of the Court would be governed by the valuation put by the plaintiff, subject of course to correction by the Court in case of defective valuation due to improper motive. If such valuation does not exceed Rs.2 lacs, the suit or proceeding would be within the jurisdiction of this Court.
9. It is pertinent to note at this stage that under the Gujarat Court-Fees Act, 2004 where the subject-matter of a suit or proceeding is not susceptible of monetary evaluation, the Legislature may have provided a fixed court-fee but so far as valuation for the purpose of jurisdiction is concerned there has to be a valuation of the subject-matter. The Suits Valuation Act 1887 lays down the principles for valuation of the subject matter of a suit for the purpose of jurisdiction. But there may be suits where the subject-matter may not be capable of being satisfactorily valued in terms of money. It is, therefore, clear that where the suit is of such a nature that the subject-matter does not admit of being satisfactorily valued in terms of necessity the plaintiff is at liberty to put his own valuation on the plaint and such valuation is ordinarily required to be accepted as the correct valuation of the subject-matter for the purpose of jurisdiction.
10. In the case on hand, the plaintiff has filed the suit for the relief of declaration and permanent injunction against the defendants in respect of the suit land, as stated above, and therefore, the subject matter in dispute in the present suit is not susceptible of monetary evaluation. The plaintiff has valued the suit for the purpose of jurisdiction at Rs.300/- and accordingly has affixed the court fee stamp of Rs.100/-. Though it is the argument of the defendants that the market value of the suit land exceeds Rs.2 lacs, but, since the plaintiff Page 11 C/SCA/178/2013 ORDER has sought the relief of declaration and permanent injunction in respect of the suit land, this Court is of the prima facie view that looking to the pleadings and reliefs prayed for the plaintiff has rightly and correctly valued the subject matter for the purpose of jurisdiction. Therefore, the argument of the learned Advocate for the defendants that since the market value of the suit land is exceeding Rs.2 lacs this Court will have no pecuniary jurisdiction to try and decide the present suit is misconceived and baseless. Reliance was placed by the learned Advocate for the defendants upon the judgement of the Hon'ble High Court of Gujarat delivered in the case of Goswami Kalyanji Govindraiji vs. Goswami Vallabhrai Govindraiji replorted in 2003 GCD (A) 2036, and judgment of the Hon'ble Allahabad High Court delivered in the case of Ghanshiam Das vs. Sub-Divisional Magistrate, Muzaffarnagar reported in AIR 1965 Allahabad 442, however, on perusal of the said judgements, it prima facie transpires that the ratio of the said cases is not applicable to the facts of the case on hand and the Hon'ble High Court has laid down the law in the peculiar facts and circumstances of those cases."
11. In present case, it emerges from the observations by the learned trial Court in the impugned order that the learned trial Court appears to have taken into account the facts of the case, subject matter of the suit, the relief prayed for and having regard to the said aspects, the learned Court took into consideration the provision under Section 6(12) of the Gujarat Court Fees Act, 2004 and has passed the impugned order having regard to the above-
Page 12 C/SCA/178/2013 ORDER mentioned aspects and in light of the said Section 6(12) of the Court Fees Act.
12. The said provision, i.e. Section 6(12) of said Act reads thus:-
Section 6(12) - In suits where declaration is sought, with or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act - one hundred rupees, In all suits under sub-clauses (b), (c) and (d) of clause (3) and clauses (4) to (11), the plaintiff shall state the amount at which he values the relief sought, with the reasons for the valuation."
12.1 According to the said provision, the plaintiff in specified and prescribed cases, can set-up proper valuation for jurisdiction.
13. At this stage, it is also relevant to take into account the provision under Sections 6, 9 and 15 of the Code of Civil Procedure which read thus:-
"6. Pecuniary Jurisdiction. - Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
Page 13 C/SCA/178/2013 ORDER
9. Courts to try all civil suits unless barred. - the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
[Explanation I]. - A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
[Explanation II] - For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]
15. Court in which suits to be instituted. - Every suit shall be instituted in the Court of the lower grade competent to try it."
It would also be appropriate to take into account the provision under Section 14 of the Gujarat Civil Court Act, 2005 which read thus:-
"14. Jurisdiction of a court of Civil Judge. - The jurisdiction of a Court of Civil Judge shall extend to all original suits and proceedings of a civil nature, not otherwise excluded from the jurisdiction of a Court of Civil Judge by any other law, the value of the subject matter of which does not exceed two lakh rupees or such other sum as the High Court may, from time to time specify."
14. A conjoint reading of the above-mentioned Page 14 C/SCA/178/2013 ORDER provisions gives out that a Civil Court has jurisdiction to try all suits of civil nature except the suits of which the cognizance is barred and the suits wherein the value of the subject matter is higher than the pecuniary jurisdiction of the Court and that a suit must be instituted in a Court of lowest grade competent to try it and that so far as the Court of learned Civil Judge is concerned, the pecuniary jurisdiction extends to original suits whose subject matter's value does not exceed Rs.two lakhs (or such other sum as may be fixed by the High Court). There is nothing in the Code which shall give any Court jurisdiction over the suits where the value of the subject matter exceeds the pecuniary limits of its ordinary jurisdiction.
14.1 In this context, it is relevant to mention that the valuation of the suit should be made on the basis of the averments in the plaint itself and substance of the relief prayed for. The defence taken in the written statement and/or the allegations in the written statement would not be relevant. The pecuniary jurisdiction of a Court is determined by Page 15 C/SCA/178/2013 ORDER the value of the subject matter of the suit, i.e. by the relief claimed and that therefore, question of valuation on the basis of the sale deed and/or the amount of alleged consideration mentioned in the said sale deed would not, and does not, arise.
15. Therefore, it is relevant to recall that the plaintiffs have not prayed for any relief and/or declaration and/or direction with regard to the sale deed and that any dispute with regard to the sale deed is not raised in the plaint and the plaintiffs have not prayed for any relief or direction to cancel the sale deed and the plaintiffs, according to their own submission, have not prayed for any declaration as to the title and ownership of the land. 15.1 It is also pertinent to note that it is not even the case of the defendants before the learned trial Court that the plaintiff has deliberately undervalued the subject-matter of the suit. The defendant has also not alleged that by misrepresentation or fraud, the plaintiff has not made proper and adequate valuation. On examination of the case, learned trial Page 16 C/SCA/178/2013 ORDER Court has also not found that there is any misrepresentation or fraud by the plaintiff so far as the suit valuation is concerned.
15.2 In this view of the matter and when in the suit/plaint the plaintiffs have asserted that they (i.e. the plaintiffs) are owners and they are in possession and occupation of the land in question, however, the defendants are trying to disturb their (i.e. plaintiff's) possession and occupation over the land which is not only in petitioner's possession and occupation, but is under their ownership and title of the suit land is in name of the plaintiff's husband and the revenue record also reflects name of plaintiff's husband and he continues as owner and occupier of the land in question and when the plaintiffs have not challenged the sale deed and any declaration against or with reference to the said sale deed is not prayed for by the plaintiffs and when any relief in occupation with the sale deed is not prayed for and when the said sale deed is not the subject matter of the suit and when the plaintiff has also not prayed for decree of possession of or Page 17 C/SCA/178/2013 ORDER declaration as regards possession of the suit property and/or any declaration as regards the title and ownership of the property in question, then any fault cannot be found with the conclusions by the trial Court.
16. As observed earlier, on plain reading of the plaint, it has emerged having regard to the fact that the plaintiff, i.e. present respondent, has (a) not prayed for any relief with regard to the sale deed of which reference is made by present petitioner, i.e. defendant, in the suit in their written statement,
(b) similarly, the plaintiff has also not prayed for any declaration or direction against the sale deed; and (c) has not prayed that the sale deed may be declared void or unlawful; and (d) the plaintiff has also asserted that any relief qua title and ownership of the land in question, i.e. any declaration with regard to the title and ownership of the land in question, is not prayed for and having regard to the fact that (e) it is the defendant, who has made reference of the valuation of the land mentioned in the sale deed it would be appropriate to mention and Page 18 C/SCA/178/2013 ORDER take note of the observation of Hon'ble Apex Court in case between Kamaleshwar Kishore Singh v. Paras Nath Singh & Ors. [AIR 2002 SC 233] to the effect that the defence taken in the written statement would be relevant and that if the plaintiff is, ultimately, found to have omitted to seek essential relief which ought to have prayed for and without which the relief sought for in the plaint as framed and filed cannot be allowed, then the plaintiff shall suffer the consequences, including consequence of dismissal of the suit. Thus, learned trial Court is right and justified in holding that when any relief is not prayed for, then, valuation of the suit, even for the purpose of pecuniary jurisdiction of the Court, cannot be made on the basis of the relief, which is not prayed for.
16.1 At this stage, it would be relevant to also take into account the observations in the decision in case between M/s. Fakirchand Makandas, Firm v. Jagadguru Shankaracharya & Ors. [1970 Vol.XI GLR 686] wherein this Court observed, inter alia, that:-
"5. .....He, therefore, came to the conclusion that, Page 19 C/SCA/178/2013 ORDER in effect and substance, the plaintiff desires a declaration about the ownership of the defendants Nos.1 and 2 in the suit property and therefore, according to him the provisions of sec. 6(iv)(d) are applicable to the suit. In my opinion, that is not the correct appreciation of the relief claimed by the plaintiff. The plaintiff does not say, anywhere in the plaint, that the defendants Nos.1 and 2 are not the owners of the property. He proceeds on the basis that they are the owners of the suit property and that the contract is binding upon them and he claims a declaration that he is entitled to get it specifically performed. It may be that on the contention raised by defendants Nos.1 and 2 in their written statement a question whether the defendants Nos.1 and 2 are the owners of the property or not, will arise for decision. But the valuation of the suit cannot be made on the basis of the contentions raised in the written statement of the defendants. The valuation of the suit should be made on the basis of the averments and allegations made in the plaint itself. Therefore, in my view, the learned trial Judge was wrong in holding that in order to make himself entitled to a declaration about specific performance, the plaintiff was in effect and substance asking for a decision about the ownership of the defendants Nos.1 and 2 in respect of the suit property."
17. In light of the above quoted observations, it emerges that the learned trial Court has not committed any error in rejecting the application preferred by present petitioner and the impugned order does not warrant any interference.
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18. In the case of Kamaleshwar Kishore Singh (supra) Hon'ble Apex Court has observed in paragraph 8 thus:-
"8. ....It is the substance of the relief sought for and not the form which will be determinative of the valuation and payment of court fee. The defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. If the plaintiff is ultimately found to have omitted to seek an essential relief which he ought to have prayed for, and without which the relief sought for in the plaint as framed and filed cannot be allowed to him, the plaintiff shall have to suffer the dismissal of the suit. These principles of law were over-looked by the trial court in passing the impugned order which was put in issue before the High Court. We are further of the opinion that though the revision preferred by the plaintiff was directed against the order dated 1.3.97, the real question arising before the High Court was to find out whether the suit was properly valued and proper court fee was paid thereon in accordance with law. While doing so if the High Court was required to examine the correctness or otherwise of the order dated 17.12.96 it should not have felt inhibited from doing so. ..."
18.1 It comes out from the said observation that the defence taken in the written statement is not relevant and it is the substance of relief prayed for which is relevant for the purpose and if some relief is not prayed for or if the plaintiff has omitted to seek essential relief which ought to have been prayed for, then it cannot be granted and ultimately the Page 21 C/SCA/178/2013 ORDER plaintiff may suffer for such lapse or choice. 18.2 In the decision in case between Chhagan Karsan v. Bhagwanji Punja & Anr. [1972 (13) GLR 835] wherein the Court has observed that:-
"5. .... Now if the argument of the appellant were correct that where the subject matter of the suit or proceedings is not capable of monetary evaluation, it cannot be predicated that the subject-matter does not exceed in amount or value ten thousand rupees and, therefore, the suit or proceeding would not fall within the jurisdiction of the Civil Judge (Junior Division); under the third paragraph of Section 24 the same argument must equally apply to negative the special jurisdiction of the Civil Judge (Senior Division) in respect of the suit or proceeding under Section 25. The special jurisdiction of the Civil Judge (Senior Division) under Section 25 is attracted only where the subject-matter the suit or proceeding exceeds the Pecuniary jurisdiction of the Civil Judge (Junior Division) that is, ten thousand rupees and if the subject-matter of the suit or proceeding is incapable of monetary evaluation, how can it be predicated, on the argument of the appellant, that the subject-matter exceeds in amount or value ten thousand rupees and, if it cannot be so predicated the condition defining the special jurisdiction of the Civil Judge (Senior Division) would not be satisfied and the Civil Judge (Senior Division) would have no jurisdiction to try and dispose of the suit or proceeding. The curious and extraordinary result of this line of reasoning would be that neither the Civil Judge (Junior Division) would have jurisdiction to try and dispose of such a suit or Page 22 C/SCA/178/2013 ORDER proceeding under the third paragraph of Section 24 nor would the Civil Judge (Senior Division) have special jurisdiction to try and dispose of such a suit or proceeding under Section 25. There would be no Judge having jurisdiction to try and dispose of such a suit or proceeding. That surely could not have been intended by the Legislature. To accept such a construction would be to attribute remissness to the Legislature. We would be, extremely slow to accept a construction which has the effect of producing such a serious lacuna and bringing about a situation where a whole category of suits would be without a Judge to try and dispose them of what other meaning then must we give to the third paragraph of Section 24 in order to avoid such a serious and startling result ?
6.The answer is fairly clear. The third paragraph of Section 24 and Section 25 postulate that all suits and proceedings of a civil nature are divisible only into two classes one class of those where the subject-matter does not exceed in amount or value ten thousand rupees and the other, of those where the subject-matter exceeds in amount or value ten thousand rupees. The former class is dealt with in the third paragraph of Section 24 while the latter in Section 25. There is no third class of suits or proceedings contemplated by the Legislature where the subject-matter may be incapable of monetary evaluation so that it is not possible to say whether the value of the subject-matter exceeds or does not exceed ten thousand rupees. The reason is that in every suit or proceeding of a civil nature, the subject-matter has to be valued in terms of money for the purpose of jurisdiction. It may be that under the Bombay Court-Fees Act, 1959, where the subject-matter of a suit or proceeding is not susceptible of monetary evaluation, the Legislature may have provided a fixed court-fee, but Page 23 C/SCA/178/2013 ORDER so far as valuation for the purpose of jurisdiction is concerned, there has to be a valuation of the subject- matter. The Suits Valuation Act, 1887, lays down the principles for valuation of the subject-matter of a suit for the purpose of jurisdiction. But there may be suits where the subject-matter may not be capable of being satisfactorily valued in terms of money ,and no rules having been made by the High Court under Section 9, no guidance may be furnished by the Suits Valuation Act, 1887, as to how the subject-matter of such a suit should be valued. Can the Court throw up its hands in such cases and say that the subject-matter shall have no valuation ? The answer is clearly no. It is now well settled that in such cases the plaintiff may put his own valuation on the subject-matter and such valuation would be accepted by the Court as prima facie true unless the Court is satisfied that it is defective on account of some improper motive, in which case the Court would always consider what should be regarded to be the proper value. .... The Division Bench took the view that where a suit is such that its subject-matter cannot be evaluated in terms of money, it would be open, to the plaintiff to put his own valuation on the plaint and such valuation would ordinarily govern the question of jurisdiction, unless the Court comes to the conclusion that it is vitiated by some improper motive such as a deliberate design to give the Court a jurisdiction which it has not. Chandavarkar, J. delivering the judgment of the Division Bench observed :-
"It is contended before us on the authority of Aklemannessa Bibi v. Mahomed Hatem, (1904) ILR 31 Cal 849, that the suit for restitution of conjugal rights, out of which this second appeal arises, did not lie in the Court of the Second Class Subordinate Judge by whom it was tried, because, according to the Bombay Civil Page 24 C/SCA/178/2013 ORDER Courts Act, that Court has jurisdiction to try no suit other than that the subject-matter of which is of the value of less than Rs. 5,000, whereas a suit for restitution of conjugal rights (it is urged) is not one the subject-matter of which can be valued. What is meant by this argument is, as we understand it, that a suit for restitution of conjugal rights is not one the subject-matter of which can foe precisely and definitely valued. In such cases the law leaves it to the plaintiff to put his own valuation on the plaint and accepts it for the purposes of jurisdiction unless it is vitiated by some improper motive such as a deliberate design to give the Court a jurisdiction which it has not. As was said in the case of Lakshman Bhatkar v. Babaji Bhatkar, (1906) ILR 8 Bom 31, what prima facie determines the jurisdiction is the claim or subject-matter of the claim as estimated by the plaintiff, and this determination having given the jurisdiction, the jurisdiction itself continues unless a different principle comes into operation to prevent such a result or to make the proceedings from the first abortive."
It is, therefore, clear that where the suit is of such a nature that its subject-matter does not admit of being satisfactorily valued in terms of necessity the plaintiff is at liberty to put his own valuation on the plaint and such valuation would ordinarily be accepted by the Court as the correct valuation of the subject- matter for the purposes of jurisdiction,unless the Court comes to the conclusion that a wrong valuation has been put by the plaintiff out of improper motive, in which case the Court would decide what should be considered to be the proper valuation. There is also implicit support for this view of the law to be found in Section 4 of the Suits Valuation Act, 1887. Section 4 provides that where a suit mentioned in clauses (c), (e), (g), (i) or (j) of paragraph (iv) in Section 6 of the Bombay Court-fees Page 25 C/SCA/178/2013 ORDER Act, 1959, relates to land or interest in land of which the value has been determined by rules under Section 3, the amount at which, for purposes of jurisdiction, the relief sought in the suit is valued shall not exceed the value of the land or interest as determined by those rules. Now Section 6 (iv) (j) of the Bombay Court Fees Act, 1959, refers to suits where declaration is sought, with or without injunction or other consequential relief, and the subject-matter in dispute is not susceptible of monetary evaluation. It is obvious on a combined reading of Section 4 and Section 6 (iv) (j) that where a suit mentioned in Section 6 (iv) (j) - and that would be a suit in which the subject-matter in dispute is not susceptible of monetary evaluation - relates to land or interest in land, the plaintiff may value the relief sought in the suit for the purpose of jurisdiction but such valuation shall not exceed the value of the land or interest as determined by rules made under Section 3. These two provisions read together clearly contemplate that even in a suit in which the subject-matter in dispute is not susceptible of monetary evaluation, the plaintiff may put his own valuation on the relief sought in the suit for purposes of jurisdiction. Section 18 of the Bombay Pleaders Act, 1920, read with the Rules in Schedule III to that Act, also reinforces the same view. It is, therefore, not possible to contemplate a case where there would be no valuation of the subject-matter of a suit or proceeding for purpose of jurisdiction. There would always be a valuation of the subject-matter for the purpose of jurisdiction even in cases where the subject-matter is of such a nature that it is ordinarily not capable of being satisfactorily valued in terms of money. The concept of subject-matter being incapable of monetary evaluation is a total stranger when we are considering the valuation of the subject-matter for the purpose of Page 26 C/SCA/178/2013 ORDER jurisdiction. ..... Even if the subject-matter of a suit or proceeding is not susceptible of monetary evaluation, it can and must be valued by the plaintiff for the purpose of jurisdiction and the jurisdiction of the Court would be governed by the valuation put by the plaintiff, subject of course to correction by the Court in case of defective valuation due to improper motive. ...." (emphasis supplied) 18.3 When the facts of present case are examined in light of above-quoted observations, it becomes clear that in this case, neither the defendant has alleged that the plaintiff has deliberately undervalued the suit nor the Court has reached to such conclusion. Moreover, as mentioned earlier, the alleged sale deed is not challenged in the suit. Any relief against the alleged sale deed is not prayed for by the plaintiff and the plaintiff has also not prayed for any declaration as regards the ownership or title of the suit property.
18.4 When the plaintiff has not prayed for any declaration as regards the ownership or title, then the Court would not grant such relief. This being conscious choice of the plaintiff, if any consequences follow, then it would be at plaintiff's Page 27 C/SCA/178/2013 ORDER own choice and of his own making. However, when, according to the plaintiff, any declaration and direction and any relief in connection with and/or against the sale deed is not prayed for and when any relief or direction or declaration as to the title and ownership is not prayed for and it is not even the case of the plaintiff that any relief of such nature is prayed for by him in the plaint/suit, then, it cannot be termed as subject matter of the suit.
19. It emerges from the above quoted observations in the above mentioned decisions that the suit being suit for declaration and injunction, the impugned order and the conclusion / decision by the learned trial Court does not warrant interference.
20. In this context, it is profitable, appropriate and relevant to take into account the observations by this Court in the decision in case of M/s. Fakirchand Makandas (supra) wherein the Court has asserted that:-
"3. Coming to the merits of the dispute, it appears that the plaintiff has asked for the main relief of a declaration that he is entitled to ask for specific Page 28 C/SCA/178/2013 ORDER performance of the contract and for the further reliefs by way of mandatory injunctions against defendants Nos.1 and 2. In the first alternative relief the plaintiff claims an amount of Rs.5000/- from defendants Nos.1 and 2 and asks for certain damages as determined by the Court. In the second alternative relief he requests the Court to rescind the contract between him and defendants Nos.1 and 2 and to order defendants Nos.1 and 2 to pay to the plaintiff an amount of Rs.5000/- and whatever damages are found appropriate by the Court. The plaintiff has paid Court fee at the rate of Rs.30/- per each of the reliefs for declaration and each of the three mandatory injunctions. In respect of the declaration and three mandatory injunctions, the plaintiff has paid Rs.120/- in all; while in respect of the relief for the recovery of Rs.5,000/- he paid a Court fee of Rs.350/-. In all, therefore, the plaintiff paid of total Court fees of Rs.470/-. For the purpose of jurisdiction, the plaintiff valued the suit at Rs.43,662/-.
4. The defendants raised a contention that the plaintiff has not valued his reliefs properly. The case of the defendants was that the suit for declaration and mandatory injunctions ought to have been valued under sec. 6(iv)(d) of the Act. The learned trial Judge accepted this contention of the defendants and on the basis that the suit falls under sec. 6(iv)(d) of the Act, he came to the conclusion that the plaintiff should pay a total Court fee of Rs.1160/-. Deducting Rs.350/- that the plaintiff has already paid, the trial Court directed him to pay an additional amount of Rs.810/-.
5. The plaintiff's contention before me is that the suit does not fall under sec. 6(iv)(d) but it falls under sec. 6(iv)(j) of the Act. It was conceded by Mr. Page 29 C/SCA/178/2013 ORDER S.N.Shelat on behalf of the contesting opponents that if the suit does not fall under sec. 6(iv)(d), the valuation made by the plaintiff would be proper except for the amount claimed by way of damages. Therefore, the only question which requires consideration is: Whether the suit is governed by sec. 6(iv)(d) of the Act or not ? Sec. 6(iv)(d) deals with a declaration of a right of ownership or some other right in immovable property. The learned trial Judge has held that in order to make himself entitled to a specific performance the plaintiff will have to prove the ownership of the defendants Nos.1 and 2 in respect of the suit property. He, therefore, came to the conclusion that, in effect and substance, the plaintiff desires a declaration about the ownership of the defendants Nos.1 and 2 in the suit property and therefore, according to him the provisions of sec. 6(iv)
(d) are applicable to the suit. In my opinion, that is not the correct appreciation of the relief claimed by the plaintiff. The plaintiff does not say, anywhere in the plaint, that the defendants Nos.1 and 2 are not the owners of the property. He proceeds on the basis that they are the owners of the suit property and that the contract is binding upon them and he claims a declaration that he is entitled to get it specifically performed. It may be that on the contention raised by defendants Nos.1 and 2 in their written statement a question whether the defendants Nos.1 and 2 are the owners of the property or not, will arise for decision.
But the valuation of the suit cannot be made on the basis of the contentions raised in the written statement of the defendants. The valuation of the suit should be made on the basis of the averments and allegations made in the plaint itself. Therefore, in my view, the learned trial Judge was wrong in holding that in order to make himself entitled to a declaration about specific performance, the plaintiff was in effect and substance Page 30 C/SCA/178/2013 ORDER asking for a decision about the ownership of the defendants Nos.1 and 2 in respect of the suit property.
6. The plaintiff claims a declaration that he is entitled to specific performance of the agreement of sale. Now, an agreement of sale does not by itself create any interest in the immovable property. The declaration, therefore, asked by the plaintiff is not of that kind which would fall within the provisions of sec. 6(iv)(d) of the Act. In my opinion, therefore, the learned trial Judge was in error in coming to this conclusion. The plaintiff's contention, therefore, that the suit is governed by sec. 6(iv)(j) of the Act should be accepted."
(emphasis supplied) 20.1 From the foregoing discussion, it emerges that the learned Court has not committed any error in the impugned order and the petitioner has failed to make out any case to interfere with the impugned order. 20.2 In the result, and for the foregoing discussion and reasons and having regard to the plaint and the averments in the plaint and the relief prayed for in the plaint and the above quoted observations in various decisions, the petition is rejected. No order as to cost.
21. With aforesaid observations and discussions Page 31 C/SCA/178/2013 ORDER present petition stands disposed of. Notice is discharged.
(K.M.THAKER, J.) kdc Page 32