KANHAIYALAL Vs. SHANKER PRASAD BHARGAVA

JUDGEMENT

(1.) THIS is a petition to revise an order of the District Judge, Ujjain, directing the petitioners to pay ad valorem Courts fees in a suit filed by them with the consent of the Advocate General under section 92 Civil Procednre Code.

(2.) THE petitioners are two in number. They claim to be the Shwetamber Murti -Poojak Jains and followers of Tapagachha group worshipping the idol of Shri Sheshphar a Parshwanathji. In this capacity they have filed a suit in respect of an alleged public trust for religious and charitable purposes created by Premvijayaji Yeti by his Will. That trust is said to relate to the temple of Shri Parshwanathji Sheshphana situated in Bansphod Gali, Ujjain. The three defendant -opponents, Sarvashri Shankarprasad, Bhanvarlal son of Gyanchand and Deepchand, are alleged to be the three surviving trustees appointed under the Will executed by premvijayaji. The fourth defendant -oppenent Bhanvarlal son of Akheraj is alleged to have obtained certain trust property from his deceased father Akheraj, who was also one of the trustees appointed by the Will of Premvijayaji The plaintiffs have averred that the said Bhanvarlal has been impleaded in the suit as the legal representative of the deceased trustee Akheraj. The plaintiffs have charged the trustees with dereliction of duty and made allegations about the loss of trust property and damage to it. The reliefs claimed by them are(a) removal of the present trustees, (b) appointment of new trustees, (c) rendition of account to the new trustees and the plaintiffs by all the defendants, (d) delivery of possession of the trust property to the new trustees, (e) a decree in favour of new trustees and against the present trustees for the payment of such amount as may be found due on taking of accounts, (f) a decree amages on account of loss and deterioration of trust property, (g) the framing of a scheme for the management of the trust according to the direction contained in the Will of Premvijaji, and (h) the grant of such further or other relief as the nature of the case may require. The plaintiffs have valued the claim at Rs. 1 lakh but they have paid a fixed Court -fee of Rs 20 on the plaint under clause (vi), Art.17 of Schedule II, Court -Fees Act, alleging that it is not possible to estimate at a money -value the subject matter in dispute. The learned District Judge has held that while some of the reliefs claimed by the plaintiffs fall under section 92 C.P.C, the reliefs of damages and a decree for a sum found due on accounting are outside the scope of section 92; that the reliefs of damages and a decree for a sum found due on account are capable of valuation; that the plaintiffs themselves have valued the claim for damages at Rs. 85,000 and have alleged that the amount that will be found due after accounting would be Rs 15,000; and that accordingly on these reliefs the plaintiffs must pay ad valorem Court -fees as required by section 7 (i) and section 8 (iv) (f) of the Court - Fees Act.

(3.) IN my judgment there is no force in the contention advanced on behalf of the petitioners. The Court -Fees Act does not contain any specific provision laying down that a certain fixed Court -fee shall be payable for a suit under section 92 C.P.C. It is true that in numerous cases it has been held that in a suit under section 92 a fixed Court -fee under Article 17 (vi) of the Court -Fees Act is payable. But this is not because of the suit in any of those cases being one under section 92 C.P C. but because of the fact that in all those cases, having regard to the nature of the reliefs claimed, the subject -matter in dispute was incapable of being estimated at a money value. The suits in those cases thus fall within the terms of article 17 (vi). It is easy to see that if in a suit under section 92 C.P.C, the reliefs claimed are strictly confined to those specifically set out in section 92 (1), then it is not possible to estimate at a money value the subject -matter in dispute. As such a suit is not otherwise provided for by the Court Fees Act, article 17 (vi) of Schedule -II becomes applicable, In some suits purporting to be under section 92 C.P.C" while some of the reliefs claimed may be within the scope of section 92, other reliefs may well fall outside the scope of that section, The reliefs claimed may be capable of being estimated at a money value and when they are so capable of valuation, then there is no reason why the plaintiff should not be asked to pay the proper Court fee chargeable of the reliefs so claimed. The true test fun determining the Court -fee possible in suits described as 'under section 92 in my opinion, has been laid down in Mirza Momtazali Khan Vs. Banwari Lal, ILR 1945 (1) Cal. 266. In that case, it has been ruled that in the absence of any specific provision in the Court Fee Act for a suit under section 92 Cr.P.C. the question whether such a suit can be brought within the purview of article 17 (vi) depends on the nature of the allegations made and the relief, claimed in the suit; that for the purpose; of Court -fees it is wholly irrelevant to consider whether the reliefs claimed are within or outside the scope of Section 92 and whether the suit is or is, not maintainable; and if in the suit as framed it is not possible to estimate the relief claimed at a money value and if the suit is not otherwise provided for in the Court -Fees Act, then article 17 (vi) of Schedule -II would apply, otherwise the plaintiff must pay the proper Court -fee charge. Able on the reliefs claimed.