BHAGWAT PARSHAD Vs. MUKAT LAL

JUDGEMENT

(1.) This revision petition is directed against the order and judgment of the learned Sub -Judge (1), Shimla dated 21 -8 -1980 whereby the learned Sub -Judge while allowing the application for the amendment of the plaint, directed the petitioner (hereinafter to be referred to as the plaintiff) to affix the court -fee on the value of the suit property as assessed by him at Rs. 40,0(0,

(2.) A few facts as reflected in the revision petition as also in the plaint may be stated. The plaintiff filed a suit for permanent prohibitory injunction restraining the deceased -respondent No. 1 and respondents 2 to 4 (hereinafter to be referred to as the defendants, from alienating, transferring or creating any charge on the ancestral property of the parties as mentioned in the plaint. The plaintiff also obtained a temporary Injunction against the defendants in this behalf, but the same was ultimately vacated on 26th June, 19 0 The deceased -defendant No 1 and defendants 2 to 4 soon thereafter transferred the property by sale for a total consideration of Ks. 80,Uv0 in favour of respondents Nos. 5 and o (hereinafter to be referred to as the transferee defendants). The deed of sale was duly registered and, according to the sale deed, the possession of the property was delivered to the transferee -defendants. Consequently, the plaintiff filed application for amendment so as to join transferee -defendants as parties to the suit and inter alia also to add a prayer for a declaration that the sale dated 4 -7 -80 registered at No. 48 } is null, void and illegal and is inoperative against the rights of the plaintiff and the same is not binding on the plaintiff. The amended plaint was also filed by the plaintiff thereafter. Both the applications, that is, one for the addition of transferee -defendants as defendants under Order 1, Rule 10 and the other for the amendment of the plaint were allowed by the trial court. However, while allowing the amendment of the plaint, the plaintiff was directed to affix the court -fee on the value of the suit property assessed by the plaintiff at Rs. 40,000, on or before 6 -9 -1980. The plaintiff thereafter filed an application praying that time be granted to him to pay the court -fee. Before any order was passed on the said application, the plaintiff filed this revision petition and obtained an order from this Court on 5 -9 -1930, staying further proceedings in the case. 3 It is contended by Mr. K. D Sud, learned Counsel for the plaintiff, that the direction as given by the trial court to affix court -fee at Rs. 40,000, is illegal and deserves to be set aside. It is argued by him that only the allegations in the plaint are to be seen for determining the court -fee to be paid in a suit. It is further stressed by him that court -fee can even be avoided by skilful drafting. According to him, the plaintiff can seek separate district reliefs. It is also contended that the proper course for the court was to allow the amendment and to ask the defendants including the transferee -defendants to fil written statement and in case they raised objections regarding court -fees, such objections could be decided. He has referred to a decision in Smt. Surjit Kaur alias Shankari v. Sawaran Singh and another, AIR 1965 Current Law Journal (Pb) 466, In this judgment, it has been held that in a suit by a person for a declaration that the property sold by an auction sale was his property and was not liable to be sold in execution of a decree passed in a suit in which he was not actually or constructively represented falls under Schedule IT, Article 17 (iii) and not under section 7 (iv) (c) of the Court -fees Act. He has also referred to some other decisions but they are not relevant to the facts of the present case.

(4.) On behalf of the transferee -defendants, it is contended by Mr, Kailash Chand that the present suit is governed for the assessment of the court -fees under section 7 (iv) (c) of the Court -fees Act. According to him, it is a suit for declaration with consequential relief. He has referred to sections 31 and 34 of the Specific Relief Act, 1963 and has emphasised that no court shall make any declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. It is desirable to reproduce section 31 of the said Act for a ready reference : "31. (1) Any person against whom a written instrument is void or avoidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or avoidable, and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) if the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered, and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation - It is also pointed out by Mr. Kailash Chand that under Volume -I, Chapter -I -C (vi) of the Rules and orders of the Punjab High Court as applicable to Himachal Pradesh, it is provided that on the presentation of receipt of a plaint, the Court should examine it with special reference to the following points : (i) (ii) (iii) (iv) (v) (vi) Whether the plaint is liable to be rejected for any of the reasons given in Order VII, Rule 11." The learned Counsel has also drawn my attention to the Himachal Pradesh Court Fees Act, 1968. He has referred to section 7 (iv) (c) and the same may also be extracted : "7. Computation of fees payable in certain suits. -The amount of fee payable under this Act in the suit next hereinafter mentioned shall be computed as follows : (i) (ii) (iii) (iv) In suits (a) (b) (c) for a declaratory decree and consequential relief -to obtain a declaratory decree or order, where consequential relief prayed ; according to the amount at which the relief sought is valued in the plaint or memorandum of appeal: Provided further that in suit coming under sub -clause (c) in cases where the relief sought is it reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by paragraph (v) of this section -.