RATAN LAL Vs. ROSHAN LAL

JUDGEMENT

(1.) THIS is a plaintiff's revision against the order of the learned District Judge, Udaipur dated 23. 5. 85 by which his application for amendment of the plaint was rejected.

(2.) THE plaintiff Ratan Lal had filed a suit against Roshan Lal and others on the allegation that he being the brother of Hira Lal had a right to pre-empt the sale made by Hira Lal in favour of the defendants Roshan Lal and others in respect of a house. THE house was sold, according to the averments in the sale deed for a sum of Rs 20,000/ -. However, according to the plaintiff, this sale price was fictitious and in fact, only a sum of Rs. 12,000/- had been the consideration for this sale. He also alleged that the market value of the suit house was also Rs. 12,000/- only and, therefore, he claimed the right to purchase this house on pre-emption for a sum of Rs. 12,000/ -. He valued the suit at Rs 12 000/-and presented the plaint in the Court of the District Judge, Udaipur. THE defendants raised an objection about the pecuniary jurisdiction of the Court. THEy moved an application u/s 31 of the Rajasthan Court Fees Act (hereinafter called 'the Act') alleging that the plaintiff has alleged that the sale price of Rs. 20. 000/-was fictitious and the real price was only Rs. 12,000/- and has wanted pre-emption and has thus tried to avoid the consideration of Rs. 8,000/- only. THE defendants further urged that in these circumstances, the plaintiff ought to have valued the suit for the purpose of jurisdiction at Rs 8,000/- only and if so valued, the suit was within the jurisdiction of the Civil Judge and not of the District Judge. Faced with this situation, the plaintiff moved an application that if the contention of the defendants is accepted and the valuation of the suit is taken to be Rs. 8,000/- only, then the suit would become triable by Civil Judge although in the plaint, the plaintiff has valued the suit house at Rs. 12,000/- and in these circumstances, the Civil Judge would not be able to grant a decree for the possession of the house. THErefore, the plaintiff wants to amend the plaint by substituting the words*************

(3.) FOR the consideration of question whether the court fee in this case was payable on the sum of Rs. 8000/- or 12,000/- or 20,000/-, a reference to s. 31 of the Act would be necessary, which reads as under:- " 31. Pre-emption suits-In a suit to enforce a right of pre-emption, fee shall be computed on the amount of the consideration for the sale which the pre-emptor seeks to avoid or on the market value of the property sold whichever is less. " On a plain reading of this section, I am clearly of the opinion that what this section lays down is that the fee has to be computed on the amount of consideration for the sale, which a pre-emptor seeks to avoid or on the market value of the property sold whichever is less. In other words, the section means that the fee shall be computed either on the amount of the consideration of the sale mentioned in the deed of sale or on the market value of the property whichever is less. The purpose of pre-emption is that the plaintiff has to be substituted in place of the purchaser in whose favour the sale deed had been executed by the seller and thus the plaintiff avoids that sale and gets it affected in his own favour and in order to avoid that sale and get himself substituted in place of the purchaser, he files the suit. By filing such a suit, the plaintiff must be deemed to be avoiding the sale and not the consideration because he will be substituted in place of the purchaser only on the payment of the sale consideration or the market value of the property. In these circumstances, it clearly appears that the learned District Judge wholly enormous by came to the conclusion that u/s 31 of the Court Fees Act, the suit has to be valued on the amount which the plaintiff wants to avoid. As already stated above, the plaintiff does not want to avoid the amount but wants to avoid the sale. Grammatically also the word 'sale' immediately precedes the words 'which the pre-emptor seeks to avoid' and, therefore, the clause ' which the pre-emptor seeks to avoid' must govern the word 'sale' and not the word consideration'. This position will be clear by taking a case where the plaintiff does not allege that the sale price is fictitious nor that the market price is less than the sale price but claims pre-emption in respect of such a sale. Here he cannot be said to be avoiding or wanting to avoid any amount of the consideration for sale and, therefore, he may not pay any court fee according to s. 31 of the Act. Such a situation cannot be envisaged.