P KARUPPANNAN Vs. SADAYA MAISTRY

JUDGEMENT

(1.) This revision petition is directed against the finding on issue No. 12 in O. S. No. 10 of 1958, on the file of the Sub Court, Nilgiris, Ootacamund, relating to court-fee payable on the plaint.

(2.) The plaintiffs are the petitioners. They obtained a decree for possession of certain properties in O. S. No. 81 of 1951, against the first respondent, but when they proceeded to execute the decree, they were obstructed by respondents 2 to 4. Thereupon, they filed I. A. No. 149 of 1956 under O. 21, R. 99 C.P.C. for removal of obstruction. That application was dismissed. O. S. No. 10 of 1958 was instituted to set aside the order passed in E. A. No. 149 of 1956. The petitioners valued the suit as if the subject matter had no market value and fixed Rs. 400 for the purpose of jurisdiction and paid a court-fee of Rs. 30 under S. 50(3) of the Madras Court-fees Act. The suit was contested by the respondents, and one of the issues raised related to the court-fee payable on the plaint. The learned Subordinate Judge held that S. 41(2) of the Madras Court-fees Act, 1955 would apply to the case, and that the petitioners should value the relief on 1/4th of the market value of the property, forming the subject matter of the suit, that is, the property in respect of which a decree for possession was passed in O. S. No. 81 of 1951. He, accordingly, directed the petitioners to make necessary amendments to the plaint and pay the requisite court-fee. The petitioners have filed this civil revision petition., questioning the correctness of the order of the lower Court. Section 41(2) of the Court-fees Act states:

(3.) The learned counsel for the petitioners contended that the suit does not relate to any property but is concerned only with the setting aside of the summary order passed in E. A. 149 of 1956, and hat the subject matter of the suit should be held to be the summary order itself, which could have no market value and that, therefore, the court-fee payable was only under S. 50. In support of that contention, reference was made to the principle established in Phul Kumari v. Ghanshyam Misra, ILR 35 Cal 202. In that case, a defeated claimant in execution proceedings filed a suit for declaration of the right to the property and for an injunction to restrain the other party from executing the decree. The Privy Council held that the suit was in essence one to review the summary decisions in the claim petition, and that Art. 17(1) of Schedule II of the Court- fees Act of 1870 would apply to the case. Under the Court-fees Act VII of 1870 it had been consistently held that although a suit was for the purpose of setting aside a summary decision and also for incidental reliefs like injunction, possession etc., the suit was substantially one for setting aside the summary order and would fall under Art. 17(1) of Schedule II of the Court-fees Act 1870 and the fee chargeable would be only that mentioned therein. Vide Dondo Sakharam v. Govind Babaji, ILR 9 Bom 20, Udai Chand Lal v. Firm Pannalal Champalal, AIR 1941 Pat 174, and Kalliani Kutti v. Kunhilakshmi, 1947-1 Mad LJ 1: (AIR 1947 Mad 275). Under the provision, a fixed court-fee was payable in respect of suits for altering or setting aside a summary order. The decisions referred to accepted the principle that where the substantial relief was to set aside the summary order the fact that incidental reliefs were prayed for could not alter the nature of the suit and that the court-fee should be paid under Art. 17(1) of Schedule II. Those decisions did not proceed on the basis that a suit to set aside a summary decision was necessarily incapable of valuation but that there was a specific provision in the enactment prescribing a fixed fee for such suits. But under the Madras Court-fees Act of 1955, suits to set aside summary orders are divided into two categories, those in which the subject matter is capable of valuation and those in which it is not so capable. The principle that where a suit is substantially to set aside a summary order, the inclusion in the suit of incidental reliefs like injunction possession etc., will not alter the character of the suit, would also apply to cases under the new enactment. But even so, the question would still be as to whether the subject matter of a particular suit to set aside a summary order has a market value.