CHAUDHARI KANHAIYALAL KESHRIMALJI Vs. SHANKARPRASADJI BABU RAMPRASAD BHARGAVA

JUDGEMENT

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

(2.) THE petitioners are two in number. They claim to be the Shwetambar Murti-Poojak Jains and followers of Tapagachha group worshipping the idol of Shri sheshphana 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, Bnan-varlal son of Gyanchand and Deepchand, are alleged to be the three surviving trustees appointed under the will executed by premvijayaji. The fourth defendant-opponent 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 Bhanvarial has been impleadcd 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 the accounts, (f) a decree for damages on account of loss and deterioration of trust property, (g) the framing of a scheme for the management of the trust according to the directions contained in the will of Premvijayaji, 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 11, 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 7 (iv) (f) of the Court-fees Act.

(3.) IT was argued by Shri Joshi, learned counsel appearing for the petitioners that as the plaintiffs' suit was one under Section 92 filed with the consent of the advocate-General, Article 17, clause (vi) of Schedule II of the Court-fees Act 'ipso facto' applied and the fixed fee as therein provided was all that was payable; that the suit was in substance claiming a relief falling under Section 92 and even if some reliefs did not fall within the purview of Section 92, yet s fixed court-fee was payable.