P. J. MATHAI Vs. C. P. SCHARIA

JUDGEMENT

(1.) The sufficiency of court fee paid on the plaint, in a suit for recovery of money and also for mandatory injunction directing the defendant to sign certain papers necessary for the purpose of transfer of the registration certificate of certain motor vehicles, is the subject matter of this revision petition. The plaintiff, who had entered into an agreement with the Ist defendant to purchase three lorries, has filed this suit on the allegation that he had to pay certain amounts due in respect of these vehicles, which he seeks to recover from the Ist defendant. It is also his case that the Ist defendant did not sign the necessary papers to be produced before the Regional Transport Authority for transfer of the motor vehicles so as "to complete the ownership". The court below, in the order, which is under revision, held that the suit is really one for specific performance of the agreement to sell the lorries and, therefore, ought to be valued under S.42(a) of the Kerala Court Fees and Suit Valuation Act, 1960. It is this finding that is attacked before me in this revision petition.

(2.) The learned counsel for the petitioner contends that he has not prayed for any relief by way of specific performance, that he has already paid the consideration for the vehicles and obtained possession, and that nothing more remained than to get a formal transfer of the vehicles effected in the records of the authorities under the Motor Vehicles Act. Prayer (A) is, according to the plaintiff, for damages, and he has paid ad valarum court fee on that prayer. The prayer for mandatory injunction is, according to him, not concerned really with the transfer of ownership of the vehicles. The reference to "complete the ownership" ought not to be understood to mean that be he has not become the owner on the date of the suit. A further argument is raised that assuming that S.42 applied, treating the suit as one for specific performance, it would be sub-s.(a) that should be applied to the case and not sub-s.(a) as has been done by the lower court. It is his case that this is really not a contract to which sub-s.(a) of S.42 has application, as the consideration for the promise sought to be enforced has no market value, and, therefore, S.50 of the Act should apply.

(3.) In paragraph I of the plaint the plaintiff has stated his case as based upon "an agreement to sell", dated 15-10-1962. He has no case that the lorries were sold to him on 15-10-1962, though he would urge such a case before me in the revision. But I cannot go behind the pleadings in the case. There is no averment anywhere in the plaint that there was any sale or transfer of ownership subsequent to 15-10-1962, the date of the "agreement to sell". It is his case that he has performed his part of the obligation under the agreement to sell. Since he is already in possession of the vehicle nothing more is required by him than the transfer to be effected in the records of the Regional Transport Authority. That he seeks by the prayer for a mandatory injunction. Even if the prayer was one for specific performance there would have been nothing more to be done than what is sought for by way of mandatory injunction in the suit. It is in these circumstances that the question whether the lower court was in error in treating the suit as one coming within S.42 of the Kerala Court Fees and Suit Valuation Act, 1960, has to be considered. It is now well settled that the question of court fee has to be considered on the allegations in the plaint and the decision on this question cannot be influenced either by the plea in the written statement or by the final decision of the suit on the merits. If authorities for this proposition are necessary, it is sufficient to refer to the decision of the Supreme Court in Sathappa Chettiar v. Ramanathan Chettiar ( AIR 1952 SC 245 ). But the contention of the revision petitioner being that, going by the prayers made in the plaint there is no justification to apply S.42(a) as he has not prayed for any specific performance, it has to be considered whether the plaintiff has, in effect, prayed for specific performance of the agreement itself. The terminology used in the plaint may not be of much relevance but it is the substance of the averments that matters. The plaintiff cannot avoid payment of the court fee by omitting to claim specific performance, but seeking the reliefs that would follow upon such a prayer in the form of mandatory injunction. It is open to the court to go behind the language which is used by the plaintiff to couch his prayer, to see what is, in substance and in effect, the relief the plaintiff has sought for. This again is a proposition, which is well settled. I would only refer to the decisions in Girrao v. Shrikrishna ( AIR 1957 Nag. 53 ), In re Thiruppathi Amma ( AIR 1955 Mad. 179 ), and Krishna v. Smt. Mem Devi (AIR 1965 Patna 436). In the last of these cases the court held that a relief not asked for cannot be imported so as to charge court fee thereon but that very same decision accepts the principle that it is open to the court to see whether the plaintiff had really made a prayer by necessary implication.