BHAGWAN DEI Vs. FIRM HET RAM SURESHCHANDRA

JUDGEMENT

(1.) This is a plaintiff's appeal under Section 6A of the U. P. Court-Fees Act against an order of the Additional Civil Judge, Jhansi directing her to pay an additional court fee of Rs. 408/12/- on her suit for a declaration that her house is not liable to attachment in a suit pending before another court. The plaintiff appellant Smt. Bhagwan Dei is the wife of Kidar Nath. A suit was filed (the plaintiff's name is immaterial) against the firm of which Hetram was one of the partners. He and all the other partners were impleaded as co-defendants. The plaintiff in that suit obtained attachment before judgment of a certain house alleging that it belonged to Kidar Nath. His wife, Smt. Bhagwan Dei, filed an objection that the house belonged to her and that her husband had nothing to do with it. It appears that, due to the neglect of her pairokar in reaching the court in time, her objection was dismissed for default. She then filed the present suit in which she prayed for a declaration that she is the exclusive owner of house No. 1843 situate in Mohalla Alayai, Mauranipur (District Jhansi) and that it is not liable to attachment in Suit No. 10 of 1953, Hetram Suresh Chand v. Kidar-nath and others now pending before the Civil Judge, Hardoi. She paid a court fee of Rs. 18/12/-which is payable for a declaratory suit. The Inspector of Stamps objected that the suit, though framed as declaratory, was in fact one to set aside an attachment and that, therefore, under Section 7 (viii) of the U. P. Court-Fees Act the amount of court fee payable must be computed ad valorem according to half of the amount for which the attachment was made or according to half the value of the property or interest attached, whichever is less. The plaintiff contested the objection, but she was overruled. The learned Judge held that the house has been attached under Order 38 Rule 5 C.P.C. and that although the plaintiff's relief has been couched in the form of declaration, in substance it is one to set aside the attachment and is governed by Section 7 (VIII) of the Court-Fees Act." He directed the plaintiff to pay an additional court fee of Rs. 408/12/- within 14 days. Aggrieved by this order the plaintiff has come to this Court in appeal.

(2.) Notice was issued to the Chief Inspector of Stamps under Section 6-A (3) of the Court-Fees Act and he has appeared to oppose the appeal. Mr. T. N. Bajpai entered appearance on behalf of the defendants in the suit but the court declined to hear him in view of its decision in Civil Revision No. 225 of 1957 that the defendant in a suit or a respondent in an appeal has no right to join issue with the plaintiff on the question of sufficiency of court fee. The case was, however, very ably argued on behalf of the Chief Inspector of Stamps by Mr. Tej Narain Sapru and on behalf of the appellant by Mr. S. N. Verma, and the Court derived much assistance from the arguments of the two learned counsel.

(3.) Mr. Verma contended that the trial court has erred in computing the court fee on the basis of what it considered the "substance" of the relief and not the relief itself. He argued that the court should have limited its enquiry to the question whether the suit was for a declaratory relief regardless of its effects. Mr. Sapru, on the other hand, contended that the language of the prayer in the suit cannot be divorced from its effects in the event of its being granted, otherwise the gates will be opened wide for evasion of the Court-Fees Act on an extensive scale. Each learned counsel cited a large number of authorities in favour of his argument.