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Smt. Sakinabi, Since... v. Smt. Zeenathunnisa, ...
Structured Summary of the Opinion
Factual and Procedural Background
This revision under Section 115 of the Civil Procedure Code arises from the judgment and order dated 24-1-1994 passed in Suit No. 1958/1989. The plaintiffs had filed a suit seeking a declaration that an ex parte decree dated 12-9-1995 passed in HRC No. 406/96 on the file of the Additional City Civil Judge, Bangalore, was not binding and executable against the petitioner in respect of premises No. 298/3 or 298/1, Albert Victor Road, Chamarajpet, Bangalore. The plaintiffs also sought permanent injunctions restraining the defendants-respondents and their agents from interfering with the plaintiffs' peaceful enjoyment of the property, restoration of possession, and a mandatory injunction against respondent No. 2 to restore possession allegedly taken unlawfully.
For the reliefs claimed in the suit the plaintiffs valued their claim under Sections 24(d) and 24(c) of the Court-fees Act and paid court-fee according to that valuation. The defendants objected to the valuation and asserted that the valuation and the court-fee paid were incorrect and deficient. The trial court observed that the plaintiffs' method of valuation and payment of court-fee was contrary to mandatory provisions of the Court-fees Act, directed that evidence had not yet commenced, and ordered the plaintiffs to revalue the suit and file the correct court-fee by separate valuation slip.
Legal Issues Presented
- Whether the order of the court below which directed the plaintiffs to revalue and file correct court-fee but did not specify the correct valuation or the correct court-fee, amounted to a failure to apply the mandatory provisions of the Court-fees Act and thus a jurisdictional error under clause (c) of Section 115 CPC.
- Whether the trial court was obliged, under Sections 10 and 11 of the Court-fees Act, to decide the proper valuation and proper court-fee payable (after hearing parties) rather than leaving the question undecided.
- Whether the impugned order should be set aside and the matter remitted with directions to the court below to determine valuation and court-fee in accordance with the statutory provisions and the observations made by the revisional court.
Arguments of the Parties
Revisionists' (Applicants') Arguments
- Learned counsel for the revisionists submitted that the order of the court below did not state what correct valuation or what court-fee should have been paid.
- He contended the lower court did not apply its mind to the relevant provisions of the Court-fees Act while passing the order and that the order was therefore vague and unclear.
- He argued that because disputes on valuation and fee were not decided, the order appeared to suffer from jurisdictional error as contemplated by clause (c) of Section 115 CPC.
Respondents' Arguments
- Learned counsel for the respondents contended that it was the plaintiffs' duty to file the correct valuation and pay the correct court-fee, which the plaintiffs had not done.
- He argued on that basis that the court below had not committed any jurisdictional error.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The revisional court examined Chapters III and specifically Sections 10 and 11 of the Court-fees Act as the statutory framework governing valuation and determination of court-fee:
- Section 10 requires that where the fee depends on the market value of the subject-matter, the plaintiff must file with the plaint a statement of particulars and valuation unless contained in the plaint.
- Section 11(1) requires the court, before ordering registration of the plaint, to decide the proper fee payable on the materials and allegations in the plaint and any statement filed under Section 10, subject to review mechanisms provided in its sub-sections.
- Section 11(2) permits a defendant to plead that the subject-matter has not been properly valued or that the fee is insufficient, and mandates that all questions arising from such pleas be heard and decided before evidence is recorded affecting that defendant on the merits. If the court finds undervaluation or insufficient fee, it must fix a date for amendment of the plaint and payment of the deficit fee, and state consequences (including rejection of plaint) if the plaintiff fails to comply.
- Section 11(4) empowers appellate courts to consider correctness of lower court orders affecting fees and to require payment of any deficit fee, with specified consequences for defaults; subsection (5) deals with questions as to value for determining jurisdiction.
Applying the statutory text, the revisional court reasoned that when a dispute arises as to valuation or sufficiency of court-fee, the trial court has a duty to decide that question after hearing the parties and to apply the correct provisions of the Court-fees Act. The court emphasized that Section 11(1) and (2) impose a positive duty on the court to determine the proper fee and, where a defendant has raised a plea of incorrect valuation or insufficient fee, to hear and decide those questions before evidence affecting that defendant is recorded on the merits.
The revisional court found that the impugned order of the lower court merely directed the plaintiff to revalue and pay correct court-fee without stating what valuation or what court-fee was correct and without indicating the statutory provisions it applied. The revisional court concluded that the trial court passed the order without applying its mind to the relevant legal provisions, thereby failing to exercise the jurisdiction vested in it. The revisional court characterized such an omission as illegality and material irregularity causing delay and injustice.
On this basis the revisional court held that the order impugned suffered from jurisdictional error. The court observed that the correct approach would have been to consider facts, materials and law, possibly record necessary evidence on valuation, and then record a finding as to proper valuation and the court-fee payable and the extent of any deficiency.
Holding and Implications
Revision allowed.
The court set aside the impugned order on the ground that it suffered from jurisdictional error for failing to determine and fix the proper valuation and court-fee as required by Sections 10 and 11 of the Court-fees Act.
The revisional court issued a direction to the court below to decide the valuation and court-fee matter in light of the observations and the provisions of law set out in the opinion. The revisional court concluded by making "Costs made easy." The opinion does not assert that any new legal precedent was established; it directly affects the trial court's obligation to determine valuation and court-fee in the pending suit and remits the matter for that determination in accordance with the statutory provisions discussed above.
Revision allowed.
1. This revision application under Section 115, CPC arises from the judgment and order dated 24-1-1994 passed in suit No. 1958/1989. The plaintiffs had filed the suit for declaration for ex parte decree dated 12-9-1995 passed in HRC No. 406/96 on the file of the Additional City Civil Judge, Bangalore, is not binding and executable against the petitioner in respect of either premises No. 298/3 or 298/1, Albert Victor Road, Chamarajpet, Bangalore and for injunction restraining the defendants-respondent and their agents and servants permanently from interfering with the peaceful enjoyment of the property by the plaintiffs and for restoration of possession and for mandatory injunction against the respondent No. 2 directing them to restore back the possession of the property which they have unlawfully taken. The plaintiffs had valued the reliefs claimed in the suit under S. 24(d) and 24(c) of the Court-fees Act. The defendants filed objections challenging the valuation given by the plaintiffs and amount of court-fee paid and asserted that this valuation is incorrect and court-fee paid was deficient. The Court observed that the for (sic) possession of the property and there is separate provision for valuing the immovable property for possession. The Court observed that the method adopted by the plaintiffs on the basis of which valuation of suit has been done and court-fee has been paid as per valuation slip was against the mandatory provisions of Court-fees Act and as the evidence is not yet commenced and the plaintiff was directed to again revalue the suit and the relief claimed therein and file correct court-fee in accordance with law by separate valuation slip.
2. The learned Counsel for the revisionists-applicants submitted that this order does not throw light on what is the correct valuation and what court-fee should have been there? Learned counsel contended while passing the order the learned Court below did not apply its mind to the relevant provisions of Court-fees Act. Learned counsel submitted that order being vague and unclear as well and disputes have not been decided, the order appears to suffer from jurisdictional error as per clause (c) of S. 115.
3. These contentions of the learned Counsel for the revisionists-applicants have been hotly challenged by Sri C.N Seshagiri Rao, learned Counsel for the respondents. Sri Seshagiri Rao contended that it is the duty of the plaintiff to have filed the correct valuation and correct court-fee, but the plaintiff has not done so. So the court below has not committed any jurisdictional error.
4. I have applied my mind to the contentions of the learned Counsel for the parties.
Chapter III of the Court-fees Act deals with subject of Court-fee. Sections 10 and 11 per se read as under:—
“Section 10. Statement of particulars of subject-matter of suit and plaintiff's valuation thereof—
In every suit in which the fee payable under this Act on the plaint depends on the market value of the subject-matter of the suit, the plaintiff shall file with the plaint a statement in the prescribed form, of particulars of the subject-matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint.
Section 11. Decision as to proper fee in courts.—(1) In every suit instituted in any court, the court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any filed under S. 10, the proper fee payable thereon, the decision being however subject to review, further review, and correction in the manner specified in the succeeding sub-sections.
(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant on the merits of the claim. If the court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.
(3) A defendant added after issues have been framed on the merits of the claim may in the written statement filed by him, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim, and if the Court finds that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall follow the procedure laid down in sub-section (2).
Explanation.— Nothing in this sub-section shall apply to a defendant added as a successor or a representative in interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement pleading that the subject-matter of the suit was not properly valued or that the fee paid was not sufficient.
(4)(a) Whenever a case comes up before a Court of appeal, it shall be lawful for the Court, either on its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon.
Explanation.— A case shall be deemed to come before Court of appeal even if the appeal relates only to a part of the subject-matter of the suit.
(b) If the Court of appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it.
(c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrears of land revenue.
(d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it.
(5) All questions as to value for the purpose of determining the jurisdiction of Courts arising on the written statement of a defendant shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.
Explanation.— In this section, the expression “merits of the claim” refers to matters which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the Court to entertain or try the suit or the fee payable but inclusive of matters arising on pleas of res judicata, limitation and the like.
A reading of this section per se reveals that it is the duty of the Court when there is a dispute about the market value of the subject-matter of suit and its valuation and proper court-fee paid, to determine that question and not to leave that question hanging. Section 11(1) per se states in every suit instituted, the court shall decide the proper court-fee payable thereon. Sub-section (2) further provides that if written statement has been filed, then before first hearing of the suit or before evidence is recorded on the merits of the claim, if the defendant has pleaded that subject-matter of the suit has not been properly valued and court-fee paid is not sufficient, then all questions arising from such pleas shall be heard and decided before evidence is recorded affecting such defendant on the merits of the claim. It further says that if the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and deficit fee shall be paid. A reading of the section per se reveals that when the dispute arises as to valuation of the sufficiency of court-fee, the court has to decide after hearing the parties. While deciding that question it will apply its mind to which provisions are applicable and what court-fee has to be paid and then it shall direct the party to make the correct valuation on the lines indicated by the court and make good deficiency in court-fee which will be in accordance with law. Here in this present-case, order impugned has been passed without following the mandatory provisions of law and without indicating the provisions, without indicating what valuation should be and what court-fee should be paid. That order may be said to have been passed without application of mind to the relevant provisions of law as well as amounts to failure to exercise jurisdiction vested in it. Such unreasonable orders or orders not amounting to proper decision may be said to suffer from illegality and with material irregularity resulting in nothing but delay and injustice. Not to decide and not to fix or determine the valuation and not to follow the provisions amounts to court's failure to perform its duty. This is such a case where I have to make such observations. The Court has to apply its mind after looking to the matter of facts, material and law and the value of the property not only given by the plaintiff, but it may record finding after recording the necessary evidence on the question of valuation of subject-matter i.e property involved in suit, as to proper valuation or value of property of suit and court-fees payable and the extent of deficiency to be made good.
Thus considered in my opinion, the order impugned suffers from jurisdictional error. Order impugned is hereby set aside. A direction is issued to the Court to decide the valuation and court-fee matter keeping in view the above observations and provisions of law. Revision is allowed. Costs made easy.
Revision allowed.
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