Bhikamdas Balaram v. Motilal Gambhirmal

This is a revisional application filed by the Petitioners who were originally defendants Nos. 1, 2 & 3 and it raises a question of court-fees. The plaintiff-opponent has filed a suit, being suit No. 6 of 1955, against the petitioners for dissolution and accounts of an alleged partnership between himself and the first petitioner. The plaintiff has also asked for a declaration that the transactions entered into by the first petitioner with the other petitioner were not binding upon him and did not in any way affect his rights to the suit properties and prayed that the accounts of the alleged partnership be taken after taking this fact into consideration. He has also prayed for partition of the partnership properties and possession thereof from the petitioners and for the amount found due upon taking accounts from the first petitioner. There is also a prayer for the appointment of a receiver or commissioner for the custody of properties and for taking accounts.

2. The suit was originally filed in the Court of the Joint Civil Judge, Junior Division, Poona and it was resisted by the petitioners upon several grounds, one of the grounds being that proper court-fee stamp was not paid by the Plaintiff and the Court had no jurisdiction as the value of the subject-matter exceeded the pecuniary jurisdiction of the Court. Certain preliminary issues were raised. Issue No. 5 was: “Is the Court-fee stamp paid by the plaintiff proper?” Issue No. 7 was: “Has this Court jurisdiction?” and Issue No. 12 was: “Is plaintiff entitled to relief against defendants 2 and 3 without payment of Court-fee stamp on the market value of the plaintiff's share in the properties in the possession of defendants 2 and 3?” The learned Judge tried all these preliminary issues and by his judgment dated 2-12-1954, he held that the plaintiff must pay ad valorem court-fee on the suit properties as he had, besides dissolution and accounts of alleged partnership between himself and the first petitioner, asked for partition and possession of suit immoveable properties from strangers to the alleged partnership. In view of this finding, the learned Judge held that the Court had no jurisdiction and he ordered the plaint to be returned for presentation to the proper Court and gave the plaintiff time till 10-12-1954 to amend the plaint, failing which the suit was to stand dismissed. In place of the above-said two orders, the learned Judge by his order dated 8-12-1954 called upon the plaintiff to amend the plaint so as to valuate it properly within a week. The first petitioner thereupon filed civil revision application No. 199 of 1955, contending that the orders passed by the learned Judge were without jurisdiction. Mr. Justice Gajendragadkar, by his judgment dated 29-9-1955, confirmed the order of the learned Judge by which the plaint was directed to be returned for presentation to the proper Court, but he set aside the other two orders. The plaint was accordingly returned to the plaintiff on 5-1-1956 and on the same day the plaintiff presented it in the Court of the Joint Civil Judge, Senior Division. Poona and the suit was numbered as Special Civil Suit No. 6 of 1956. As the plaintiff had not valued the suit for jurisdiction, he on 21-4-1956 made an application for amendment of the plaint giving the valuation for jurisdiction at Rs. 22,500. The learned Judge raised a preliminary issue regarding valuation of the suit for the purposes of court-fee and an issue to whether the plaintiff's contentions were barred by res judicata. It was contended on behalf of the petitioners that the plaintiff could not agitate the question as it had already been held that he must pay ad valorem court-fee. It was also contended that the plaintiff not only wanted dissolution and accounts of the alleged partnership and a declaration that the transactions entered into by the first petitioner with the other petitioners did not affect his rights, but he also wanted partition and possession of properties from those who were strangers to the alleged partnership and, therefore, he must pay court-fee accordingly. It was also submitted for the petitioners that in view of the reliefs claimed by the plaintiff, the valuation for court-fee and jurisdiction must be governed by S. 7, sub-s. (iv), Cl. (c) of the Court-fees Act read with S. 8 of the Suits Valuation Act and he must accordingly pay ad valorem court-fee. The learned Judge by his judgment dated 4-7-1956 held that the plaintiff could be asked to pay court-fee for the properties of his share which could be ascertained only after taking accounts. It was also held that the suit was merely for accounts & the plaintiff could pay court-fee at the stage of the final decree. The learned Judge accordingly held that the court-fee paid by the plaintiff was proper and he ordered that the suit be proceeded with. It is from this order of the learned Judge that the present revisional application has arisen.

3. Mr. Tarkunde for the petitioners has contended before me that the learned Judge acted with material irregularity in the exercise of his jurisdiction in not taking into consideration the nature of the reliefs claimed by the plaintiff-opponent. It is contended that the learned Judge should have seen that the plaintiff prayed for dissolution and accounts of the alleged partnership between himself and the first petitioner, for a declaration that the transactions entered into by the first petitioner with the other petitioners in respect of suit properties were not binding on his share, for accounts in the light of the said declaration and for partition and possession of his share in the suit properties from the petitioners. Mr. Tarkunde says that the plaintiff valued the suit for dissolution and accounts at Rs. 65/- and for a declaration at Rs. 200/-, his total valuation for court-fee thus being Rs. 265/-. Mr. Tarkunde contends that the valuation for the purposes of Court-fee was not proper. According to Mr. Tarkunde, the learned Judge acted with material irregularity in the exercise of his jurisdiction in not taking into consideration the fact that the plaintiff had asked for further reliefs also which were incidental to the declaratory relief.

4. In my view, Mr. Tarkunde's criticism of the learned Judge's judgment dated 4-7-1956 is a valid criticism and must be upheld. The learned Judge was in error in overlooking the fact that the valuation for court-fee was governed by S. 7, sub-s. (iv), Cl. (c) of the Court-fees Act read with S. 8 of the Suits Valuation Act. S. 8 of the Suits Valuation Act provides:

“Where in suits other than those referred to in the Court-fees Act, 1870 (VII of 1870), S. 7, paragraphs v, vi and ix and x, Cl. (d), court-fees are payable ad valorem under the Court-fees Act, 1870 (VII of 1870), the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.”

5. It is not disputed that the present suit does not fall in any of the excepted categories mentioned in S. 8. It is clear, therefore, that the value for the purposes of jurisdiction and the value for the computation of court-fee have to be the same. The plaintiff having valued his claim for jurisdiction at Rs. 22,500/-, the learned Judge ought to have held that either under S. 7, sub-s. (iv), Cl. (c) or under S. 7, sub-s. (iv), Cl. (f) of the Court Fees Act, the valuation for the purposes of Court-fee should be Rs. 22,500/-. In Bansilal Lalchand v. Bhikubai, 49 Bom LR 545 : (AIR 1948 Bom 8) (A), it was held that the determination of the value for the payment of court-fees automatically determined the value for the purposes of jurisdiction under S. 8 of the Suits Valuation Act. As the plaintiff himself has put the value for the purposes of jurisdiction at Rs. 22,500/-, the learned Judge erred in holding that the value for the purposes of the court-fee was a different amount.

6. Although it is clear that the value for the purposes of court-fee and the value for the purposes of jurisdiction in this case should both be Rs. 22,500/-, the question is whether this Court in the exercise of its revisional jurisdiction under S. 115 of the Code of Civil Procedure should interfere with the order passed by the learned Judge. In this connection, Mr. Tarkunde relies upon a Full Bench decision of this Court in Shankar Maruti v. Bhagwant Gunaji, 49 Bom LR 72 : (AIR 1947 Bom 259) (B). Mr. Justice Weston who delivered the judgment of the Full Bench in that case observed:

“It was held as long as 1886, Vithal Krishna v. Balkrishna Janardan, ILR 10 Bom 610 (FB) (C), and as recently as a year ago, Mahadeo Gopal v. Hari Waman, AIR 1945 Bom 336 (D), that this Court has power to interfere in revision under S. 115 of the Code of Civil Procedure in proper cases where the trial Court has placed a suit under a wrong provision of the Court-fees Act, and the competence of the present revision application, therefore calls for no further discussion.”

7. It cannot be denied that the present case is a proper case in which interference in revision under S. 115 of the Code of Civil Procedure is called for. I have pointed out above that under S. 8 of the Suits Valuation Act, the value for jurisdictional purposes and the value for the computation of court-fee have to be the same. Therefore, there can be hardly any controversy that this is an eminently fit case in which interference in revision under S. 115 is called for. This is a case where the trial Court has placed the suit under a wrong provision of the Court-fees Act. The learned Judge has placed the suit under S. 7, sub-s. (iv), Cls. (c) and (f) of the Court-fees Act. Clause (c) deals with a relief to obtain a declaratory decree or order where consequential relief is prayed and Cl. (f) deals with accounts. As the plaintiff has asked for a declaration that the alienations made by defendant No. 1 in favour of defendants Nos. 2 and 3 are not binding upon him and for a consequential relief and has also asked for accounts, the learned Judge has placed the suit under Cls. (c) and (f) of sub-s. (iv) of S. 7. Mr. Tarkunde says that this is a wrong placing of the suit and he contended that the suit should have been properly placed under S. 17 of the Court-fees Act. In my view, Mr. Tarkunde is right. S. 17 of the Court-fees Act provides:

“Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act.”

8. There is no doubt that in this case the plaintiff's suit embraces more than two reliefs. He has asked for dissolution of partnership & accounts, for declaration and also for partition and possession. It would be wrong to treat the relief for possession as a mere consequential relief, consequential to the relief for declaration. The two reliefs are distinct reliefs. The declaration sought by the plaintiff is a declaration that the alienations made by defendant No. 1 in favour of defendants Nos. 2 and 3 were not binding upon him (plaintiff). Had the plaintiff stopped there, it might have been a different matter; but he has not stopped there. The substantial relief which the plaintiff wants is the relief of possession of property which might fall to his share upon taking accounts of the partnership. In these circumstances, I must uphold Mr. Tarkunde's contention that in this suit the plaintiff has asked for more than two distinct reliefs and, therefore, the learned Judge ought to have placed the suit under S. 17 for the purposes of court-fee. His not having done so would be a ground for the interference by this Court in the exercise of its revisional jurisdiction under S. 115 of the Code of Civil Procedure.

9. Mr. Desai for the plaintiff-opponent has invited my attention to certain observations at page 429 of Mulla's Civil Procedure Code, 12th Edition, Vol. I, wherein the learned author has said:

“An order demanding improper court-fee, if unfavourable to the plaintiff, is equivalent to telling the plaintiff that the Court will not proceed with the trial although the plaintiff has in fact paid the proper court-fee. It is, therefore, a refusal to exercise jurisdiction and the High Court will interfere in revision.”

10. These observations are based upon the authority of a decision of this Court in 47 Bom LR 350 : (AIR 1945 Bom 336) (D). It was held in that case that an application in revision under S. 115 of the Civil Procedure Code, 1908, lay against an order passed by the Court that the Court-fees paid by the plaintiff on his plaint were insufficient, as the order was tantamount to a finding that the Court would not proceed with the trial unless the court-fees demanded were paid and was thus a refusal to exercise jurisdiction. Mr. Justice Lokur who delivered the judgment in that case observed:

“On the second issue the lower Court found that the plaintiffs must pay court-fees on the value of the share of defendant No. 2. In other words, the plaintiffs were called upon to pay court-fees as if they had asked for possession of the entire share of defendant No. 2, Yeswant. It is against that order that the petitioners have now come in revision and a preliminary objection is urged that such an application is not maintainable under S. 115 of the Civil Procedure Code. But the view taken by this Court in certain unreported cases is that an order that the Court-fees paid by the plaintiff on his plaint are insufficient is really tantamount to a finding that the Court would not proceed with the trial unless the plaintiff paid the court-fees demanded. It is thus a refusal to exercise jurisdiction although, according to the plaintiff, proper court-fees have been paid, and he is entitled to have his suit tried on merits.”

11. With respect, the proposition laid down in Mahadeo Gopal v. Hari Waman (D), is indisputable. But this case is not an authority for the proposition which Mr. Desai is propounding in this case. Indeed, the learned author (Sir Dinsha Mulla) of the commentary on the Civil Procedure Code has pointed out in the same paragraph at page 429, Volume I:

“But if plaintiff's valuation is too low, it can be revised, otherwise, says the Patna High Court, the plaintiff would be able to drag the defendant into any Court he pleased.”

12. If the plaintiff's contention that the value for the purposes of Court-fee should be Rs. 265/- were to prevail, the value for the purposes of jurisdiction would have to be the same, in which case the plaintiff would be able to drag the petitioners defendants into the Court of the Civil Judge, Junior Division, back again from the Court of the Civil Judge, Senior Division.

13. There is one other circumstance also which calls for interference in revision under Section 115 of the Code of Civil Procedure. If the order challenged is not revised, there would be no later stage at which the plaintiff could be called upon to pay an additional court-fee for possession. Mr. Desai has not been able to point out to me any section of the Court-fees Act under which an additional court-fee for possession could be asked later from the plaintiff. Mr. Desai has invited my attention to S. 11 of the Court-fees Act. But S. 11 cannot be invoked for calling upon the plaintiff later to pay an additional court-fee for possession. S. 11 says:

“In a suit for the recovery of possession of immoveable property and mesne profits or for mesne profits or for an account, the difference, if any, between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount found due shall, on delivery of judgment, be taxed by the Court ………………”

14. Under this section, the plaintiff, in the present suit, cannot be called upon later to pay the difference between the court-fee actually paid by him and the court-fees which would be payable for possession of immoveable property. That being so, if the impugned order is to be maintained, the plaintiff, would get away with it and would obtain possession of his share in the immoveable property without having to pay court-fee in that behalf.

15. For the reasons stated above, I am of the view that this case clearly calls for revisions under S. 115 of the Civil Procedure Code. I set aside the findings recorded by the learned Joint Civil Judge, Senior Division, at Poona on 4-7-1956 on the two issues: (1) is the suit valued properly for court-fee? and (2) is the plaintiff's contention barred by res judicata? and direct that the value for the purposes of court-fee would be Rs. 22,500/-. The trial Court should give adequate time to the plaintiff to pay the court-fee. The application is allowed. The plaintiff-opponent will bear his own costs and will also pay the costs of the petitioners of this application.

V.B.B

Application allowed.