CHERIYAN VARKEY Vs. CHACKO CHACKO

JUDGEMENT

(1.) The petitioners are plaintiffs in O.S. 336 of 1123 of Ettumanoor Munsiff's Court. The suit is for a perpetual injunction restraining Defendants 1 to 3 from entering on the plaint properties on the allegation that they are in possession of the properties under Ext. X lease from Defendant 4 Devaswom. Plaintiffs valued the suit at 100 fanams and paid court fee of 5 fanams under S. 4, Cl. 4(b), Court fees Act VI of 1087. Defendant 1 contends among other things that the suit is not properly valued, that he is in possession of the plaint properties and that he cannot be restrained by an injunction from entering upon the properties. The Trial Court repelled the defence plea and granted a decree for perpetual injunction. In appeal, the lower Court found that the plaintiffs have to pay court fee on the market value of the right which they claim in the property and remanded the case to lower Court under O. 40, R. 24 for a finding on the net benefit to the plaintiff per annum from the properties after paying the pattom and other dues to Defendant 4 Devaswom. Hence this revision petition by plaintiffs.

(2.) The only point for decision is whether the court fee paid by plaintiffs is adequate. Whether a suit has been properly valued or not must be decided primarily with reference to the relief sought for in the plaint. Paragraph 11 (a) of the plaint contains the relief prayed for: "Defendants 1, 2 and 3 should be restrained by means of a permanent injunction from entering the scheduled properties or from causing any obstruction whatsoever by them to the possession and enjoyment of the same by the plaintiffs and parties under them." Plaintiffs have valued the suit at 100 fanams and have paid a court fee of 5 fanams. This satisfies the requirements of S. 4, Cl. 4(b), Travancore Court fees Act, VI of 1087 under which plaintiffs are entitled to fix the value of the relief sought for. The lower Court finds that plaintiffs are bound to pay court fee under S. 4, Cl. 5(d) viewing the suit as one for declaration of plaintiff's right to property. The lower court bases its conclusion on the decision in Menon v. Koviladhikarikal (27 TLJ 829). That suit arose out of a dispute between 2 kovilagoms. On the death of Rama Varma Raja of plaintiff's kovilagom, the kovilagom of respondents 1 to 6 set up a claim to the properties of plaintiff's kovilagom and with a view to take forcible possession Defendant 1 executed an udampady in favour of Defendant 6 and the latter executed a lease for items 10 to 29 and a portion of item 8 of plaint schedule to Defendants 7 and 8. Plaintiffs alleged that the udampady and lease are invalid and prayed for a permanent injunction restraining the defendants from entering on the properties. The plaintiffs valued the suit for purposes of court fee at fanams 1400 and for purposes of jurisdiction at Rs. 2000 and filed the suit in the Alleppy District Court. Defendants contended that the suit was not properly valued. The Trial Court found that plaintiffs ought to pay court fee on the market value of the property. In revision the High Court held that the relief sought for involved also a prayer for declaration of title and directed the plaintiffs to pay court fee on the market value of the property under S. 4, sub-s. 5, Cl. (d), Court fees Act, and to fix his own valuation for injunction treating the prayer for injunction as a mere consequential relief. With great respect to the learned Judge who disposed of the revision petition we do not feel persuaded to follow the decision. In that suit plaintiff did not pray for any declaration of title nor did they seek to set aside the udampady and lease deed impeached by them. All that they prayed for was a permanent injunction restraining defendants from entering on the property.

(3.) Under S. 4, Cl. 4 (b), Court fees Act, plaintiffs are entitled to fix their own valuation. The valuation of the suit is to be regulated by the relief sought for in the plaint and does not depend on the questions that are raised by the defence or the ultimate gain likely to be secured by the plaintiffs in the suit. The decision in 27 TLJ 829 referred to is based on the decisions Deokali Koer v. Kedar Nath (ILR 39 Cal. at 704) and Vachani v. Vachani ILR 33 Bom. 307 . Both were suits for declaration and for consequential relief by way of injunction. In both, the Court held that the suits came under S. 7, sub-s. 4, Cl. (c), Indian Court fees Act VII of 1870. In the case before us there is not even a shadow of a relief in the nature of a declaration. The prayer is only for a permanent injunction and the plaintiff is free to fix his own valuation. We think it is wrong to assume that a prayer for injunction can be conceived only as consequential relief. A prayer for injunction can stand by itself and that is what we find in the case before us. The position we have taken finds support in 2 decisions of the Madras High Court - Veerappa Chettiar v. Arunachalam Chetti ( AIR 1936 Mad. 200 ) and in Sri Rajha Navani Venkata Rama Rao Bahadur Zamindar Garu v. Shri Rajha Tadakamala Sita Ram Chandra Rao Bahadur Zamindar Garu ( AIR 1941 Mad. 91 ). In the case reported in AIR 1936 Mad. 200 the suit was for a permanent injunction to restrain the defendants from quarrying or removing stones from the plaint property on the allegation that plaintiff has a right to the property and that the infringement entitled the plaintiff to injunction. On the contention of the defendant that the suit was not properly valued the Court held that the plaint cannot be deemed to be one substantially for declaration of title to the property and for injunction. The learned Judge in the course of the judgment observes as follows: