NAGESHWAR Vs. CHANDMAL

JUDGEMENT

(1.) THE facts of this revision-petition are that the plaintiff-applicant instituted a suit against Chandmal, Bhagwantibai and Gendalal for a declaration that a money decree for Rs. 2. 700 which Chandmal had obtained against Bhagwantibai in Civil suit No. 4/2003 from the Court of District Sub-Judge, Ujjain, was collusive and not binding on the plaintiff and that the decree be declared null and void and be also set aside. The plaintiff sued as a reversioner and paid a Court-fee of Rs. 10 only on the plaint. On an objection being taken with regard to sufficiency of court-fee, the trial Court held that the Plaintiff should have paid ad valorem court-fee on the valuation of the decree sought to be set aside. The order of the trial Court was upheld by Khan j. of Madhya Bharat High Court in Civil Revn. No. 136 of 1949 (A ). When the case went back to the lower Court, the plaintiff was directed to pay up the deficient court-fee within a certain time. The plaintiff then made an application for deletion of his prayer that the decree be set aside and contended that as his suit was now confined to the relief of a mere declaration that the decree was not binding on him, therefore, the suit could proceed on the court-fee of Rs. 10 already paid by him. This contention was rejected by the trial Court. Hence this revision-petition by the plaintiff.

(2.) MR. Oza learned counsel for the applicant relying on Alam Khan v. Mt. Bhag bhari, AIR 1941 Lah 159 (B), argued that as the plaintiff-applicant was not a party to the decree which Chandmal obtained against Bhagwantibai, he was not bound by the decree and that therefore it was not necessary for him to get the decree set aside in order to protect his interest and that therefore, he could sue only for a declaratory relief and pay the requisite fixed court-fee. When it was pointed by me to the learned counsel that the declaratory decree might be ineffective to protect his interest, learned counsel replied that in the matter of court-fees what had to be seen was the actual relief prayed by the plaintiff and not what would be the effect of his success; that a mere declaratory decree may be of no help to the plaintiff in protecting his interest but when he is distinctly asking for merely a declaratory decree and is not praying any consequential relief to set aside a decree, then he cannot be called upon to pay ad valorem court-fees on the amount of that decree.

(3.) IN my judgment this petition must be rejected. The point that arises in this case is covered directly by a decision of this court in Vinayakrao Anardrao v. Mst. Mankunwarbai, AIR 1943 Nag 70 (C ). In that case Bose J. , held:-