Amritalal Chatterjee v. Hiralal Chatterjee

P.B.Mukharji, J:-

(1) This rule is directed against the order of the learned subordinate judge, alipore, on a point made under the court fees act. It raises interesting and important questions of law and interpretation on section 8c of the court fees act and the amendment introduced by the court fees (west bengal amendment) act, 1963, (west bengal act xviii of 1963). By section 3 (2) of this amending act a new clause va was introduced in section 7 which reads as follows:

" (2) after clause v, the following clause shall be inserted, namely: - "va. In a suit for recovery of possession of immovable property from - (a) a trespasser, where no declaration of title to the property is either prayed for or necessary for disposal of the suit, - according to the amount at which the relief sought is valued in the plaint subject to the provisions of section 8c; (b) a licensee upon revocation of termination of his license, - (i) where a license fee is payable by the licensee in respect of the immovable property to which the suit refers, according to the amount of the license fee of the immovable property payable for the year next before the date of presenting the plaint, or (ii) where no such license fee is payable by the licensee, according to the amount at which the relief sought is valued in the plaint subject to the provisions of section 8c. "

(2) The facts giving rise to this point of valuation under the court fees act in this case are briefly as follows. The suit is a suit for eviction of the licensee. The plaintiff's case is that he is the owner of the property and the defendants were the licensees. The license was revoked on the 19th march, 1964. The plaintiff sues for a decree for recovery of possession in respect of two rooms and a kitchen described in schedule b of the plaint. It is a part or portion of premises no. 11, russa south, third lane, which is a two storied building. The plaintiff valued the suit at rs. 400/ - and the court fees under section 7 (v) a, clause b of sub - clause (ii) of the court fees act was paid. Before proceeding further it may be noted that it is litigation between two brothers and the licensee is a brother.

(3) The licensee brothers' contention is that the subject matter of the suit has been wrongly valued and the court should institute an enquiry under section 8c of the court fees act. The learned subordinate judge following the special bench decision of this court in (1) sisir kumar dutta and others v. Sushil kumar dutta, reported in air 1961 cal 229, and by an interpretation of the amendment as quoted above came to the conclusion that, to use his own words, "now, in a suit for recovery of possession of immovable property from the licensee the court fee is required to be paid on the proper valuation of the subject matter of the suit and the subject matter of the suit in the instant case is two rooms and a kitchen in the first floor of premises no. 11, russa road south, 3rd lane. I think this concrete property, i. E. , two rooms and one kitchen provide the objective standard for determination of the correct valuation. The use of the words "subject to the provisions of section 8c" in sub - clause (ii) of section 7 (v) a (b) of the court fees act is very significant. "

(4) In expressing this view the learned subordinate judge gave an interpretation which requires to be tested. But before testing that interpretation it is necessary to state a little more in detail his finding. According to the court below the present suit was wrongly valued on the ground that the test being the value of the two rooms and one kitchen in the first floor of premises no. 11, russa road south, 3rd lane, which cover a land area of 4 cottahs, 4 chhataks, 20 sq. Ft. As a whole, the plaintiff's valuation of rs. 400/ - was a 'paltry sum'. Therefore, the learned subordinate judge made the following order:

"having regard to the nature of the suit the correct valuation of it can be determined by appointing an expert as commissioner who will carry out necessary investigation. Accordingly, i direct the defendants to take steps for appointment of an expert as a commissioner for the purpose of ascertaining the valuation of the property by 15. 5. 65."

(5) On the face of it the learned judge was wrong in making this order for ascertaining the valuation of the property because the amending act does no longer speak about the valuation of the "property" or "subject matter" but uses the significant words "the relief sought is valued. " valuation of the "relief sought", therefore, is not the same thing as valuation of the "property" itself or the "subject matter" of the suit. "property" or "subject matter" of the suit are expressions which have been used in the court fees act and they have been the subject of many judicial decisions which it will not be necessary for us to discuss here.

(6) This amendment has a history. The object of the court fees (west bengal amendment) act, 1963 (west bengal act xviii of 1963) is declared to be as follows:

"it has been held by a special bench of the high court at calcutta in a recent case that while an owner wanting to evict a licensee in respect of immovable property has to pay a larger amount of court - fees on the basis of the value of the property under section 7 (v) of the court fees act, a landlord wanting to evict a tenant has to pay a smaller amount of court - fees, on the basis of the annual rent payable for the year next preceding the suit under section 7 (xi) (cc) of the act. In order to remove this anomaly, it is proposed to amend the act so as to enable the owner in a suit against a licensee to pay court - fees according to the amount of license fee, or, according to the amount at which the relief sought for is valued, when no license fee is payable."

(7) The amending act was intended to counter the effect of the decision of the special bench of this court in (1) sisir kumar dutta and others v. Sushil kumar dutta, air 1961 cal 229, where it was held that the subject matter of a suit for eviction against a licensee whose license stands revoked or terminated and who thereupon becomes a trespasser to the property which is sought to be recovered. The value of the relief is now the value of the suit. That is the new criterion under the amendment. The learned subordinate judge by emphasizing the words "subject to the provisions of section 8c" in the amendment has practically repealed the amendment act and made it completely nugatory. Therefore, that interpretation cannot stand.

(8) Section 8c of the court fees act is an independent section which provides for enquiry in case of a wrong valuation. The actual words of the section are: -

"if the court is of opinion that the subject matter of any suit has been wrongly valued it may revise the valuation and determine the correct valuation and may hold such enquiry as it thinks fit for such purpose."

The whole purpose and object of this section is based on the court's power to revise a wrong valuation and the court's power to determine a correct valuation and for that purpose to make such enquiry as the court thinks fit. The basis of action by the court under this section 8c of the court fees act is wrong valuation. The modus operandi of correcting that wrong valuation is the court's power to hold such enquiry as it thinks fit. Even without the words "subject to the provisions of section 8c" in section 7 (v) a (b) (ii) , of the new amendment, section 8c would in any event apply in any case of wrong valuation whether it is a case of a license under section 7 (v) a (a) (ii) or any other case under any other section of that act. Out of abundant caution the amendment expressly preserved court's power to correct a wrong valuation and to hold an enquiry for that purpose, lest it was thought that under the amendment that power of the court was lost.

(9) Having pointed out this significance of the expression "subject to the provisions of section 8c" it will now be appropriate to examine and focus our attention to the actual provisions for valuation in the case of a revocation or termination of license. In the first place the language of the amendment quoted above under the amending act makes it clear that the legislature divides the license cases into two categories. The first category is where a license fee is payable. In that case the valuation proceeds according to the amount of the license fee of the immovable property payable for the year next before the date of presenting the plaint. That is an objective standard. It is limited to the case where a license fee is payable. It is only thereafter that the second category is mentioned and that category includes only the case "where no such license fee is payable by the licensee. " the present case before us is such a case where no license fee is payable by the licensee. It was a brother's license to stay in two rooms of another brother's property without any fee. The amending act here provides that it has got to be valued according to the amount at which the relief sought is valued in the plaint. The relief sought is valued in the plaint according to the plaintiff at rs. 400/ -.

(10) The question now is, - is this correct either in principle or on fact? the question of principle is a question of importance. The impressive consideration that at first strikes this court is the fact that the valuation could not be more in the case where no license fee is payable than in the case where license fee is payable. To say so would be against all commonsense and against the interpretation and classification as provided in the amending act. We are of the opinion that the valuation in the case where no license fee is payable is necessarily lower than in the case where a license fee is payable.

(11) To illustrate the commonsense aspect of this problem is to take the following instance. X gives his friend y the use of 2 rooms for a short time without any fee and without any consideration. Thereafter the friend y refuses to vacate. X has to take legal proceedings. He revokes his license to his friend y to continue. If x brings a suit against y after the revocation or termination of the license, for recovery of the use of the property, is it going to be said that the valuation of the property would be valuation of the suit? that would be most unfair in the eyes of law. That is why the subjective element is introduced in valuation of the relief sought and as valued in the plaint.

(12) But is the valuation entirely subjective? mr. Ganguly for the petitioner has submitted that it was so. That view we find is difficult to accept without qualification. It is partly subjective; it is party objective. It is subjective in the sense that the plaintiff will necessarily have to value the relief in the plaint. In making that valuation he is naturally valuing not the property as such nor the subject matter as such but really the valuation of the right that he gave the licensee to use the property without any fee. There is the subjective element and the relationship between the licensor and the licensee, a brother, a relation or a friend in need, etc. May enter into this subjective consideration in the mind of the plaintiff in valuing the relief in a particular case. At the same time there any also be certain objective considerations. The valuation of the property and its amenities which are used may provide materials for guiding the valuation of the relief as required by the amending act. But it can never be that the value of the property is the value of the relief sought in such a case. In other words this valuation is not a wholly subjective valuation in the sense that the plaintiff can put an arbitrary or whimsical valuation. If he does it then that will be a "wrong valuation" within the meaning of section 8c of the court fees act which the court will be entitled to revise and in order to arrive at a correct valuation the court might hold an enquiry that it thinks fit for the purpose. That is the utility of making this amendment subject to the provisions of section 8c of the act.

(13) The net result of the amending act appears to be first that the special bench decision of this court in (1) air 1961 cal 229 can no longer be taken to be good and effective law on the subject. That decision in its effect was changed by this amendment. The amendment was obviously intended both expressly and by necessary implication of the language used in the amendment to make it clear that an owner wanting to evict a licensee should not be put into a position where he has to pay either the same or even a larger amount of court fee than a landlord wanting to evict a tenant. That overriding purpose of the amending act, therefore, has to be respected and that is grant of relief to a person evicting a licensee on the ground of revocation or termination of his license. That relief should not be rendered illusory by any construction or interpretation introducing value of the "property" or "subject matter" and ignoring the value of "relief sought" which was the only object of the amendment. Secondly the use of the expression "subject to the provisions of section 8c" in the amending act quoted above does not make any difference. With or without such an expression section 8c would apply in every case where the court is opposite party opinion that there has been a wrong valuation and it should be revised and for that purpose the court is competent to hold any enquiry it thinks fit. That power is expressly preserved in the amendment ex abundanti cautela. Thirdly, to value the relief sought in the plaint there can be no hard and fast rule. Every relevant consideration might be considered by the court. It will be inappropriate for us to lay down any fixed principle in this respect for the legislature has not done so. Negatively stated the valuation must be sought of the relief and not of the property or the subject matter. That however, does not mean that the relief is to be valued completely dehors the context. The context can nevertheless even after the amending act in an appropriate case be examined, namely - the property, its amenities, the nature and right of user, residential or business and all relevant and cognate factors bearing on the value of the relief. But then under no circumstances the value of the immovable property can be the value for such a suit against a licensee without a fee. As already pointed out they may provide materials from which guidance may be taken to come to a valuation of the relief in the particular context of a particular case. In this connection it may be appropriate also to remember that the value of relief is mentioned in section 7 (iv) (e) of the act. In case of section 7 (iv) (e) referring to suits for a right to some benefit to arise out of land with the marginal note regarding use. Valuation of relief was the principle in such suits for enforcing a right for some benefit to arise out of land. It is that principle which is extended to the licensee in the amending act. Another look at section 7 (v) of the court fees act will show that with regard to suits for possession of lands, houses and gardens, it was the value of the subject matter as distinguished from the value of the relief which was a principle of valuation of court fee thereunder. The court fees act, therefore, expressly and impliedly makes a distinction between value of "relief" and value of "subject matter" according to the nature of suits described in the act. The amending act, therefore, in permitting valuation of the "relief" was not adopting any unusual principle but a very well recognised principle.

(14) Mr. Ganguly for the petitioner made reference to two cases - (2) kanailal banerjee v. Satyabati devi, reported in air 1939 cal 265, and (3) star trading and investment limited v. Ashutosh mukherjee and others, reported in air 1939 cal 627. We do not consider it necessary to discuss these authorities because we do not think they are applicable here having regard to the interpretation and construction of the amending act that we have adopted and having regard to the facts f the case before us. The first decision related to a preliminary decree passed in a suit for partition on the basis of a petition of compromise and there it was held that value of the property which would be affected by the preliminary decree could not be taken as an objective standard for the purpose of determining the value of the relief in the suit and it was held that in the absence of any other satisfactory valuation the plaintiff's valuation was to be taken as correct and final for purposes of the suit. It is necessary to state here that in that case the plaintiff instituted a suit for rectification of the solenama upon which the preliminary decree was made and that was on the ground of fraud or mutual mistake of the parties. The plaintiff valued the suit there at only rs. 101/ - and it was contended that that was a wrong valuation because the plaintiff would be entitled to have her title and joint possession of the property worth about rs. 8000/ -. The second case was also not a case of this kind and was also not a case of this kind and was also concerned with a compromise decree in a partition suit which was alleged to have been obtained by fraud. It was held there by a division bench that in suits coming within section 7 (iv) (c) of the court fees act to obtain a declaratory decree where consequential relief was prayed for the plaintiff had not an absolute right to value the relief at any sum he pleased but the court might enquire into the matter and raise the valuation if it found the relief claimed as undervalued.

(15) For these reasons we set aside the judgment and order of the learned subordinate judge and make the rule absolute. There will be no order for costs. Let the records be sent down as early as possible.