RAJ KRISHNA DEY Vs. BEPIN BEHARY DEY

JUDGEMENT

(1.) A preliminary objection has been taken to the competency of this appeal. The appeal arises out of a suit in which the plaintiff seeks for declaration that he is the sole shebait of Lakhi Baraha Jieu, and the principal defendant is not a shebait of the idol, and also for an injunction to restrain the defendant from interfering with his possession of the endowed properties. In the plaint as originally framed, there was no prayer for an injunction. Objection was thereupon taken by the defendant to the effect that the suit was not maintainable in view of the proviso to Section 42 of the Specific Relief Act. The plaintiff then amended the plaint and inserted the prayer for injunction to which reference has just been made. He valued the suit for the purpose of jurisdiction at Rs. 11,005, but, for the purpose of payment of Court- fees, valued the prayer for injunction at Rs. 1,000. He then paid Rs. 10 as Court-fees for the declaration under Schedule II, Article 17(iii) and Rs. 75 for the injunction under Schedule I, read with Section 7(iv)(d) of the Court Fees Act, 1870. The suit was heard on the merits and dismissed. The plaintiff has appealed to this Court, and upon the memorandum of appeal, he has paid Court-fees in the same manner as in the Court of first instance. It has been contended on behalf of the respondents that under Section 8 of the Suits Valuation Act, the valuation for the purpose of Court-fees is identical with the valuation for the purpose of jurisdiction, and that, consequently, if the value assigned by the plaintiff for purposes of jurisdiction be accepted, the plaint and the memorandum of appeal are both insufficiently stamped, while, if the value assigned by the plaintiff for purposes of Court-fees be accepted, the appeal lies to the District Judge and not to this Court.

(2.) Section 8 of the Suits Valuation Act provides as follows: "Where in suits other than those referred to in the Court Fees Act, 1870, Section 7, paragraphs 5, 6 and 9 and paragraph 10, Clause (d), Court-fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same." The suit, as framed falls within Section 7, Clause 4, Sub-clause (c) of the Court Fees Act, 1870. Consequently, the value as determined for purposes of jurisdiction, namely, Rs. 11,005, must also determine the value for the purpose of payment of Court-fees.

(3.) The same conclusion follows from another point of view. Section 7(iv)(c) of the Court Fees Act provides that the amount of fee payable in suits to obtain a declaratory decree, where, as here, consequential relief is prayed, shall be determined according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It was pointed out by this Court in the case of Umatul Batul v. Nanji Kuar 6 C.L.J. 427 : 11 C.W.N. 705 at p. 710 that in cases falling under Section 7(iv) of the Court Fees Act, although the plaintiff is to state the amount at which he values the relief sought, the Legislature never intended that the plaintiff should be at liberty to assign any arbitrary value and thus be free to choose capriciously the forum of trial or appeal. The same view was taken in Dayaram v. Gordhandas 31 B. 73 : 8 Bom. L.R. 885 and is implied in Boidyanath v. Makhanlal 17 C. 680. In the case before us, there is no room for controversy that the prayer for injunction has been arbitrarily under-valued. The plaintiff contends that he is the sole shebait of the idol Lakhi Baraha Jieu, and is entitled, as such, to exclusive possession of the disputed properties on behalf of the idol. He further contends that the principal defendant has been improperly placed in joint possession of the endowed properties under an erroneous order of the Revenue Authorities made on the 6th May 1908. If he succeeds in these contentions, he will obtain exclusive possession of the endowed properties, of which, according to his allegation, he was in joint possession at the date of the commencement of the suit. The value of the prayer for injunction, therefore, is the value of the relief claimed by the plaintiff, and upon the facts stated, that value, as estimated by the plaintiff himself, is Rs. 11,005. The plaintiff is, therefore, bound to pay ad valorem Court fees upon the plaint and memorandum of appeal, on the basis that the value of the relief claimed is Rs. 11,005. The Court-fees payable upon Rs. 11,005 is Rs. 520; but the plaintiff has paid only Rs. 75; he is thus liable to pay the difference, Rs. 445, both upon the plaint and the memorandum of appeal; he is accordingly directed to pay Court-fees to the extent of Rs. 890 within three weeks from this date. If the amount is paid, the appeal will be heard. If it is not paid, the Court will consider what further order should be passed. The appeal will stand adjourned for three weeks.