H RPATEL Vs. C GVENKATALAKSHAMMA AND

JUDGEMENT

(1.) The suit is for a declaration that the defendant who is constructing a house next to that of the plaintiff is bound to construct it in accordance with the conditions laid down by the Municipality when it formed the sites and for an injunction restraining the defendant from constructing the house contrary to those conditions and for the removal of such portion of the building as has been built contrary to the conditions. The point for consideration in this appeal is whether the court-fee paid by the plaintiff according to his valuation is correct as held by Venkataramalya J. or whether he has to pay court-fee on half the value of the property calculated, as if the suit is for possession of the house, as held by Balakrishnaiya J. The latter would be correct if Clause (iv) (c) of Section 4, Mysore Court-fees Act, is applicable with its proviso. If the proviso is not applicable, the plaintiff is entitled to put any value on the relief claimed whether the suit falls under Clause (c) or (d) or (e) of Section 4, Mysore Court-fees Act. That section reads:

(2.) The main relief sought by the plaintiff in the plaint is injunction. The said relief can be said to be a consequential relief only if it cannot be granted except on a declaration of the right of the plaintiff and not merely on proof of that right. The plaintiff in a suit for recovery of possession of land, if entitled to possession on proof of title -- and there is no cloud on the title occasioned for instance by a sale either by himself or through court which has to be removed by a declaration before possession can be given -- is bound to pay court-fee on the basis that it is a suit for possession only though as a matter of fact there is a prayer in the plaint for a declaration of his title. The court in such a case should be guided by the substance of the case of the plaintiff as set out in the plaint and treat it as if he had not prayed for the superfluous and unnecessary prayer for declaration. To hold otherwise would result in the plaintiff evading payment of legitimate court-fee under Clause (v) of Section 4, Mysore Court- Fees Act by merely adding an unnecessary prayer for declaration of title. This view is supported by the decision in -' Rama-swami Ayyangar v. Rangachariar', AIR 1940 Mad 113 (PB) (A) which follows the observations el their Lordships of the Privy Council in -- 'Bijoy Gopal v. Sm. Krishna Maheshi', 34 Cal 339 (B). Now in this case there is no legal impediment to be removed for the grant of injunction if the plaintiff is otherwise entitled to it and the suit has therefore to be regarded as one for injunction falling under Clause (d) of Section 4 (iv), Mysore Court-fees Act. This view is supported by the observation of Wadsworth J. In -- 'Venkata Banga Rao v. Sita Rama Chandra Rao', AIR 1941 Mad 91 (C), The plaintiff must be held to have the right to give his own valuation for purposes of court-fee and Jurisdiction.

(3.) The main relief claimed by the plaintiff in the suit is injunction and not easement or any A other right to some benefit to arise out of land. The suit cannot therefore be said to be one under Clause (iv) (e) of Section 4, Mysore Court Pees Act. Assuming that the suit is for declaration of plaintiffs right to an easement and for a consequential relief, viz., injunction, it cannot be said that proviso to (c) is applicable as the main and in fact the real relief asked for is injunction and not declaration. The point would arise for consideration if there was a proviso to (iv) (d) in Section 4, Mysore Court Pees Act, as has since been introduced to the corresponding Clause in the Madras Court Fees Act that proviso being as follows: