SAILENDRA NATH KUNDU Vs. SURENDRA NATH SARKAR

JUDGEMENT

(1.) This Rule is directed against an order passed by the Second Additional Subordinate Judge, 24-Parganas, in title suit No. 12 of 1933, directing the plaintiff in the suit, a shebait, to pay court-fees on the plaint on the value of the subject-matter of the suit. The plaintiff in the suit prayed for a declaration that certain leases executed in respect of debuttar properties were illegal, invalid, and inoperative; there was also prayer for khas possession of the properties, covered by the leases. The leasehold properties which were the subject-matter of the suit were valued by the plaintiff at Rs. 2,000 and ad valorem court-fees were paid on that amount. It appears that a commission was appointed for the purpose of ascertaining the value of the properties in suit irrespective of the leases; and the valuation made by the Commissioner was Rs. 69,921-5-0. The plaintiff was then directed by the learned Judge to pay court-fees on the aforesaid sum of Rs. 69,921-5-0, the value of the subject matter of the suit before the Court.

(2.) A question was raised on the side of the opposite party in the Rule that the case was not one in which the revisional jurisdiction of the Court could be allowed to be invoked in favour of the plaintiff petitioner in this Court. We were not at all impressed with the view presented before us on behalf of the opposite party, that because there was the right of appeal by the plaintiff in the suit after his plaint has been rejected on the plaintiffs not employing with the Court's order in the matter o? payment of deficit court-fees this Court should not interfere in revision, if we were convinced that the order directing the payment of additional court-fees was not supportable under, the law, and was passed in the illegal exercise of jurisdiction by the Court below. In our judgment the order complained of is illegal. On a perusal of the plaint filed in Court, there can be no doubt that court-fees in the case were leviable under Section 7, Sub-section (4) and Clause (c), Court fees Act, as the suit instituted(SIC) by a the plaintiff was one to obtain a declaratory decree where consequential relief was prayed. Four leases specified in the plaint were sought to be avoided, by the plaintiff as shebait; and, it was necessary to pray for possession of the properties covered by these leases as a prayer for a declaration could not be considered to be sufficient under the law, in cases, of the present description.

(3.) The question then was, what was that value of the subject-matter of the suit as mentioned in Section 7, Sub-section (5), Court-fees Act? The primary relief claimed in the suit was the cancellation of the leases in respect of the debuttar properties, and possession was sought to be obtained by the plaintiff of the lease-holds created by the documents alleged by the plaintiff to be illegal, invalid and inoperative. In our opinion there can be no question that the valuation required to be put on the properties covered by the plaint before the Court was the valuation of the leasehold interests created by the different leases, and not the valuation of the properties irrespective of the leases. In the above view of the case we are unable to agree with the Court below in holding that the plaintiff in the suit, the petitioner in this Court was required to pay ad valorem court-fees on the plaint filed by him, on the value of the properties in suit, which has been ascertained to be Rs. 69,921-5-0 irrespective of: the leases in question. The subject-matte of the suit were the the leaseholds created by documents alleged by the plaintiff to be invalid under the law, and the valuation put by the plaintiff on the subject-matter appears to be adequate regard being had to the fact that the annual rent payable for debsheba by the lessees in possession was only Rs. 75. The plaintiff was under the law entitled in a case of the present description to put his own valuation on the lessees interest, the subject-matter of the suit, as it cannot be said that the leasehold was capable of strictly accurate valuation.