Chhatu Lal Shaw v. Panchanan Shaw

1. This Rule was directed against an order of the learned Subordinate Judge of 24-Par-ganas by which he directed the plaintiff to pay ad valorem court-fees on Rs. 6,000 on the plaint and refused to pass any final orders on the application filed by the plaintiff for amendment of the plaint.

2. The plaintiff along with defendant No. 2 and other co-sharers is in joint possession of the premises in suit. Defendant No. 2 executed a kobala on the 6th of May, 1949, in favour of defendant No. 1 in the present suit. The plaintiff's allegation is that the kobala was obtained by fraud and undue influence and he prayed, first, for a declaration that this sale deed was void and secondly, for a permanent injunction restraining defendant No. 1 from interfering with the plaintiff's possession and thirdly, in the alternative, for an order by the court allowing the plaintiff to pre-empt. The relief for declaration was valued at Rs. 20, the relief for injunction was valued at Rs. 50 and the relief for pre-emption was valued at Rs. 100. The court-fees were paid accordingly. After the court passed an order that the proper valuation of the suit was Rs. 6,000 and the court-fees should be paid thereupon, the plaintiff made an application for amendment of the plaint by deleting the prayer for pre-emption. The learned Sub-ordinate Judge held that the court-fees were payable in accordance with the provisions of section 7(iv)(c) of the Court Fees Act, that the relief should be valued at Rs. 6,000 and that after the court-fees thereupon were paid, he would consider what orders should be passed on the application for amendment.

3. In the first place, we are clearly of opinion that the learned Subordinate Judge failed to exercise his jurisdiction that was vested in him to pass an order on the prayer for amendment. When a plaintiff alter making prayers of several kinds of relief wishes to abandon some of these with a view to save court-fees, the court is bound to allow such application. Whether as the result of deletion of prayers for some reliefs, the suit fails or not is a matter which shall be decided at the time of the hearing of the suit. The plaintiff in asking for deletion of his prayer for certain reliefs takes that risk. We see no reason why the court should refuse the plaintiff to withdraw his prayer for pre-emption.

4. We therefore order that the application for amendment by deleting the prayer for pre-emption should be allowed.

5. The question that remains for consideration is what is the court-fee payable on the plaint after deletion of the prayer for preemption. Obviously the suit is one for declaration with consequential relief in the form of a permanent injunction. Ad valorem court-fees are therefore payable; but it is open to the plaintiff to give his own valuation. Where there is an objective standard, for valuing the relief, the court has the right to amend the valuation to the figure it thinks proper. If there is no objective standard, the plaintiff's own valuation will remain. The question is whether there is any objective standard for valuing the relief in this suit. In our opinion, as the plaintiff himself is in possession along with other co-sharers of the property in suit, there is no objective standard for valuing the relief he seeks. If he was out of possession altogether and was asking for delivery of possession, it would be quite a different matter. The distinction has been drawn in several cases of which mention may be made of the decision of this court in the cases of Bagala Nanda Dutta v. Srish Chandra Nandy (1) [A.I.R (1939) Cal., 278], Mt. Deokali Kuari… v. Mahadeo Prasad Bhagat…Opposite Party. (2) (A.I.R 1939 Patna, 531), Ghulam Nabi v. Umar Baksh (3) (A.I.R 1941 Lahore, 307) and Balaram Mondal v. Sahebjan Gazi (4) (54 C.W.N 139). In our judgment it is obvious that when it is not known as to the portion of the property with regard to which there will be interference or whether there will be interference at all or not, the relief can only be valued at what the plaintiff subjectively thinks it is worth.

6. We notice in the present case that the plaintiff has not followed the correct mode of valuation. As was pointed out in Balaram's case (4), reported in 54 C.W.N 139, the correct mode of valuation in such a case is to put a single valuation, the option of valuing the relief resting with the plaintiff.

7. We therefore set aside the order passed by the learned Subordinate Judge fixing the valuation at Rs. 6,000, and order that the plaintiff be allowed to put his own valuation on the relief for declaration and for the prayer for permanent injunction which will remain in the plaint after the deletion of his prayer for pre-emption and direct that court-fees will be payable ad valorem on the value put by plaintiff.

8. The Rule is accordingly made absolute in the above terms with costs.

A.K.D.G