BANWARI LAL AND ORS Vs. RAM GOPAL

JUDGEMENT

(1.) This is a reference by the Taxing Officer for decision of the question whether Section 7(iv-B)(b) of the Court Fees Act is applicable to the relief of demolition of constructions in a suit where possession over the site only is claimed by the Plaintiff. In all the three appeals there were suits for possession over land after demolition of the constructions alleged to have been made by the Defendants. In Second Appeal No. 274 the relief of mandatory injunction calling upon the Defendants to remove the constructions was expressly sought for. In Second Appeal No. 640 the relief of permanent injunction to restrain the Defendants from interfering with the Plaintiff's use of the land also was sought for. All the three Plaintiffs valued the relief of possession according to the value of the land. They all valued the relief of mandatory injunction or demolition of the constructions at Rs. 50/ - and paid ad valorem court-fee on it. In Second Appeal No. 640 the Plaintiff also paid more court-fee on the relief of permanent injunction which was also valued at Rs. 50/ -

(2.) In Second Appeals 274 and 640 the Plaintiff's suits were dismissed and they have filed these appeals; in the third appeal the Plaintiffs suit was decreed and the appeal is by the Defendant. It is not disputed that whatever was the court-fee payable on the plaint in each case, is the court fee payable on the memorandum of appeal. The court-fee payable on the relief of possession over the land is not in dispute. Nor is there any dispute about the valuation of the relief of Mandatory injunction; Rs. 50/ - is the minimum valuation that can be placed upon the relief of mandatory injunction. The relief must be valued under Section 7(iv-B)(b) at not less than 1/10th of the market value of the property involved in, or affected by, the relief. The property involved in, or affected by, the relief of mandatory injunction for demolition, is the market value of the constructions desired by the 'Plaintiffs to be demolished by the Defendants. So long as the market value of the constructions in the three appeals does not exceed Rs. 500/ - the relief of mandatory injunction would not be required to be valued at more than Rs. 50/ - at which it has been valued in each case. It is not contended in any of the three cases that the market value of the constructions exceeds Rs. 500/ -. The only dispute is whether the relief of mandatory injunction is to be valued under Section 7(iv-B)(b) or under Article 17(vi) of Schedule II. Court-fee is payable under Article 17(vi) in a suit where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided for by the Act. If the subject matter in dispute can be valued under Section 7(iv-B)(b), it follows that it cannot be valued under Article 17(vi). Section 7(iv-B)(b) lays down how the relief of an injunction is to be valued. Injunction includes not only a prohibitory injunction but also a mandatory injunction. Requiring a Defendant to demolish certain constructions illegally made by him, is a mandatory injunction and the relief for it must be valued as laid down in Section 7(iv-B)(b).

(3.) In Mst. Kulsumun nisan v. Khushaudi Begam,1953 AWR 617it was laid down by Brijmohan Lal, J. that the relief of demolition of constructions is to be valued as laid down in Article 17(vi). He did not consider whether it could be valued under Section 7(iv-B)(b). The dispute before- him was not whether Section 7(iv-B)(b) was applicable or not. It seems to have been 'taken' for granted that Article 17(vi) was applicable. Therefore, that case is no authority for the proposition that the relief of demolition of a construction is not a relief for an injunction within the meaning of Section 7(iv-B)(b).