LAKSHMI NARAIN RAI Vs. DIP NARAIN RAI

JUDGEMENT

(1.) The question raised in this application for revision is what is the correct court- fee payable on the applicant's petition of plaint in which he seeks a declaration that he is the owner in possession of certain zamindari property. The plaint recites that Suit No. 24 of 1901 was instituted by the plaintiff when a minor under the guardianship of his mother to get possession of the said property in respect of which Mangla Prasad Rai, the half brother of the plaintiff's grandfather and the father of the defendant, had got his name entered in the revenue papers on the death of Mt. Ram Dei Kuar, the widow of the plaintiff's great-uncle. It further avers that this suit has been struck off through the collusion of the Mukhtar Khas of the plaintiff's mother with Mangla Prasad Rai and that the latter had caused an appeal to be preferred and a compromise to be entered into in the appellate Court by a person incompetent to enter into a compromise on behalf of the minor plaintiff. The allegation in. the plaint is that the compromise decree was obtained by fraud. The relief prayed for in the plaint as originally preferred was that it may be declared by the Court that the plaintiff is the owner in possession of the property in suit. A court-fee of Rupees 10 was paid on the plaint. Thereafter the plaintiff applied for the plaint to be amended by the addition of certain words at the beginning of the prayer for relief. The amended prayer read as follows: On account of the fact that the decree in Suit No. 24 of 1901 is according to law null and void, illegal and ineffectual, it may be declared, etc....

(2.) The Court below held that by the insertion of these words the plaintiff was asking for the cancellation of the decree in Suit No. 24 of 1901 and, this being a consequential relief, an ad valorem court-fee should be paid based on the value of the property concerned. The learned Munsif relied for this view on the decision of the Full Bench of this Court in Kallu Ram V/s. Babu Lal . The correctness of the order of the learned Munsif is challenged by the plaintiff in the present application for revision on the ground that the relief asked for is still only one of declaration and that no consequential relief is prayed for. It is contended on behalf of the applicant that the only effect of the amendment of the plaint is that two declarations are now asked for firstly, that the decree in Suit No. 24 of 1901 is null and void as against the plaintiff, and secondly, that the plaintiff is the owner of property in suit, and that accordingly only the court-fee payable in respect of prayers for mere declaration need be paid. The learned Counsel for the applicant has stated before us in express terms that the consequential relief of the cancellation of the compromise decree is not asked for and that the applicant is prepared to take the consequences of the failure to ask for such consequential relief whatever they may be.

(3.) In view of these clear statements by the applicant's counsel it seems to us that his contention as to the court-fee payable must be accepted. It has been held by this Court in a very similar case that a suit for a mere declaration that a compromise and a decree on its basis are null and void is not to be deemed one in which consequential relief is prayed: Radha Krishna V/s. Ram Narain . In that case the relief originally prayed: and on which a court-fee of Rs. 10 had been paid was for cancellation of a compromise and the decree based upon it on the allegation that the plaintiff was a minor and that he was bound by the compromise and decree which were obtained by fraud. On objection being raised the plaintiff amended his plaint to the effect that it be declared that the petition of compromise and the decree were ineffectual as against the plaintiff and that he was not bound thereby. It was held by a Bench of this Court that the plaint as amended was sufficiently stamped, the suit as framed being to obtain a declaratory decree when no consequential relief was prayed. It was further held that the question of court- fee must be decided on the plaint and the decision is not affected by the question whether the suit is maintainably under Section 42, Specific Relief Act, or by any action subsequently taken by the plaintiff to obtain an injunction otherwise than by amendment of the plaint. Similarly in Brij Gopal V/s. Suraj Karan it was held by a Bench of this Court that, for the purpose of determination of the court-fee, the actual relief asked for should be looked into, and it is entirely beside the consideration of the Court whether the suit is likely or not to fail, because the plaintiff did not ask for a consequential relief.