MANINDRA MOHAN BANERJEE Vs. NIRMAL KUMAR BANERJEE

JUDGEMENT

(1.) This Rule was issued at the instance of Defendant No. 1 of a Title Suit being suit No. 316 of 1955 of the 4th court of the Munsif of Alipur. It appears that opposite parties Nos. 1 to 4 of this Petition filed a suit in the court of the learned Munsif for certain reliefs, to which I shall presently refer. Before the filing of that suit there was a partition suit between the present parties and a final decree had been made in that partition suit to which opposite No. 4 Angurbala Devi was a consenting party on her own behalf and also on behalf of her three sons, namely, opposite parties Nos. 1 to 3 who are said to have been minors at that time. That partition decree has been put to execution by Defendants Nos. 1 and 2 of Title Suit No. 316 of 1955 and the number of the execution case is 26 of 1954 of the 1st Court of the Subordinate Judge at Alipore. Opposite parties Nos. 1 to 4 instituted Title Suit No. 316 of 1955 for a declaration that the decree passed in the previous partition suit, namely, Suit No. 2 of 1947 of the 1st Court of the Subordinate Judge, Alipore, was not binding upon them being void and illegal. A consequential prayer was also made for restraining Defendants Nos. 1 and 2 of the present title suit from proceeding with the execution case already mentioned. The title suit was valued by opposite parties Nos. 1 and 4 at Rs. 410 and court-fees were paid upon that amount. An objection was taken by Defendant No. 1 that the valuation was hopelessly inadequate inasmuch as the value of the suit should be Rs. 8,00,000 which was the value of the previous partition suit and court-fees should have been paid on that amount. This objection was overruled by the learned Munsif who accepted the valuation put by the Plaintiffs. This Rule is directed against the legality and propriety of that order.

(2.) I heard Mr. Bhose who appeared on behalf of the present Petitioner at some length and he argued the case with great thoroughness. Mr. Bhose could not dispute the fact that so far as the question of payment of court-fees is concerned, the suit would be governed by Section 7(iv) Clause (c) of the Court-fees Act, because there is a prayer for a declaration that a certain decree previously passed by a certain Court is not binding upon the present Plaintiffs and there is a prayer for a consequential relief that the execution case arising out of the decree should be stayed. The relief sought by the Plaintiffs has been valid in the present case at Rs. 410 and they have paid court-fees on that amount.

(3.) Mr. Bhose contended that Section 7(iv) (c) of the Court-fees Act should be read along with Section 8C of the same Act and if the Court is of opinion that the subject-matter of the suit has been wrongly valued, it may revise the valuation and determine the correct valuation of the suit. In support of this contention Mr. Bhose drew my attention to several cases. One such case is Balaram Mondal v. Sahebjan Gazi, 1949 54 CalWN 139; in that case it was held by Das J. that the provision of Section 7(iv) (c) of the Court-fees Act is controlled by Section 8C of the same Act and if the Court is of opinion that the Plaintiff has valued his relief inadequately, the Court has got the power to revise the valuation. Mr. Bhose further drew my attention to a ease Saroj Mohan Chatterjee v. Jiban Mull Babu,1953 57 CalWN 909. This case, as I read it, is against the contention put forth by Mr. Bhose. There the suit before the Court was for a declaration that certain kabalas were not valid and binding on the Plaintiffs. There was also a prayer for a permanent injunction. Originally the plaint also contained a prayer for setting aside the kabalas but that prayer was later on deleted at the instance of the Plaintiffs.