LAWS(J&K)-1964-8-5

S K DASS Vs. JANKI BROTHERS

Decided On August 14, 1964
S K Dass Appellant
V/S
Janki Brothers Respondents

JUDGEMENT

(1.) THIS revision application is directed against an order of the trial Court holding that the suit for injunction has been properly valued for purposes of the jurisdiction. The suit was filed by the plaintiff for injunction restraining the defendant from obstructing the flow of water into the pit which is in the compound of the defendant. The suit was resisted by the defendant on various grounds and a preliminary objection was taken that the suit was undervalued for purposes of jurisdiction. The trial Court after hearing the parties found that the suit has been properly valued and over -ruled the objection raised by the defendant. Against this order the defendant has come up in revision to this court.

(2.) IT is argued on behalf of the petitioner that under rule 7 clause (5), Special Laws, Chapter XVI the plaintiff should have fixed the value of the suit for purposes of jurisdiction from 3UO to Rs. 1,000 and as the value fixed by the plaintiff is only Rs. 5 the suit is clearly undervalued. On the other hand the contention of Mr. Langar appearing for the respondent is that the suit being purely for injunction rule 7 clause (5) is not applicable. It is well settled that in deciding what proper court -fee payable is, the Court must have regard to the substance of the thing and not to the mere form, in which the relief has been prayed for. In support of this view reliance may be placed on AIR 1929 Madras 396 and AIR Madras 203. In paragraph 5 of the plaint the plaintiff has clearly mentioned that he is enjoying the right of using the drain and the pit for a very long time and on his averment in the plaint he has sought the relief by way of injunction restraining the defendant from obstructing the flow of water from the drain to the pit. It is, therefore, clear from the plaint that the plaintiff is trying to establish his long standing right of passage of water from the drain into the pit. It is true that he has not asked for any declaration of right in the plaint but the very fact that he has prayed for injunction against the defendant clearly amounts to maintaining the right of use over the drain and the pit. Clause (5), Rule 7, Chapter XVI, Special Laws reads as follows : -

(3.) AS pointed out above, the plaintiff has not asked in clear words for any declaration of the right of using the drain but he has prayed for injunction against the defendant restraining him from obstructing the flow of water into the pit. The trial court has fallen into an error in paying more attention to the form of the plaint than to its substance and has held that the plaintiff has correctly valued his suit for purposes of jurisdiction. From the substance of the plaint it is clear that the suit is for establishing a right to maintain the drain and the value for purposes of jurisdiction should have been from Rs. 300 to Rs. 1,000, in terms of rule 7 clause (5) referred to above. I, therefore, allow this revision application, set aside the order of the trial Court and hold that the plaintiff should value his suit for purposes of jurisdiction from Rs. 300 to Rs. 1,000. The plaintiff shall be allowed to amend the plaint accordingly and to fix the value for purposes of jurisdiction as stated above. The parties are left to bear own costs in this Court.