KISANDAS BANKATLAL Vs. RAGHO RAM KRISHNA

JUDGEMENT

(1.) This application arises out of a suit brought by the opponents in the Court of the First Class Subordinate Judge at Jalgaon against the petitioner for setting aside five award decrees obtained by the latter in the Second Class Subordinate Judge's Court at Pimpalgasn and for a permanent injunction restraining the defendant from executing the said decrees. The plaintiffs at first framed the suit somewhat differently; instead of seeking to set aside the five decrees they sought a declaration that they had been fraudulently obtained and were hence not binding on them, as well as an injunction against the defendant, and they applied to the Court to be allowed to amend the plaint as above. As originally framed, the claim in the suit was valued thus : for declaration in the case of each decree Rs. 200 and for injunction in each case Rs. 5. The total valuation thus being Rs. 1,025, it was a suit falling within the description of Section 7, Clause (iv) (c) of the Court-fees Act, i.e. a suit) "to obtain a declaratory decree where consequential relief is prayed." To such a suit Section 8 of the Suits Valuation Act would apply : "Where in suits other than those referred to in the Court-fees Act, 1870, Section 7, paragraphs v, vi, and ix and paragraph x. 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 value of the suit as originally framed for purposes of jurisdiction, therefore, would be Rs. 1,025, i.e. it would be a suit triable by a Second Class Subordinate Judge's Court and not by a Court of the First Class Subordinate Judge ; for under Section 15 of) the Civil Procedure Code every suit must be instituted in the Court of the lowest grade competent to try it.

(2.) The object of the plaintiffs amendment of the plaint appears to be to bring the suit within the jurisdiction of the First Class Subordinate Judge's Court without paying higher court-fees. This result was sought to be achieved by asking the Court to set aside the five award decrees, besides giving a permanent injunction restraining the defendant from executing the said decrees. The Court allowed the amendment. A suit to "set aside a decree or award" falls under Clause (v) of Art. 17 of Schedule II of the Court-fees Act, as amended by Bombay Act II of 1932. That clause is in the following terms :

(3.) The plaintiffs case was that by the amendment they avoided the application of Section 7 (iv) (c) of the Court-fees Act and Section 8 of the Suits Valuation Act, that under Art. 17 (v) \ of Schedule II to the Court-fees Act, the Court-fee payable in respect of each decree was Rs. 15 in respect of the prayer to set it aside and Rs. 5 in respect of a prayer for an injunction, the latter1 prayer having been valued at Rs. 5 under Section 7(iv) :(d) of the Court-fees Act, and that s. S of the Suits Valuation Act could not apply to the main prayer, the court-fee payable in respect thereof not being payable ad valorem) under the Court-fees Act, being a fixed fee of Rs. 15 in respect of each decree.