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Pandit Dhanukdhari Tewari v. Mani Sonar
Factual and Procedural Background
The opinion arises from a reference made by the Taxing Officer under section 5 of the Court-fees Act in connection with second appeals filed by the plaintiffs (proprietors of mauza Amehta). The defendants occupy a house in khata no. 196, khasra no. 47, on 2 acres entered as gair majruha of the maliks.
The plaintiffs' substantive case was that the land had been given to the defendants' ancestor as jagir in lieu of services to be rendered on condition that the plaintiffs could take khas possession if services ceased; the plaintiffs alleged that the defendants stopped rendering services from Srawan 1328 Fasli, refused to quit, and refused to pay rent. The plaintiffs sought (1) a declaration that the land is the proprietors' gair majruha and that the defendants' possession is trespass and (2) consequential relief either to recover possession or, in the alternative, an order assessing ground rent (they suggested Rs. 10 per katha annually and sought rent from Sawan 1328 Fasli to date of suit).
At first instance the Munsif disallowed the prayer for khas possession but assessed rent at Rs. 10 per katha per year from Sawan 1328 Fasli to date of suit. On appeal the Subordinate Judge reduced the fair rent to Rs. 8 per katha and dismissed the defendants' cross-appeal. The plaintiffs then filed second appeals in this Court, valuing the memorandum of appeal at one year's rent under sub-section 11 of section 7 of the Court-fees Act, deducting the rent decreed by the lower appellate court.
The Stamp Reporter objected to the court-fee paid on the plaint and on the memoranda of appeal (both in this Court and in the lower appellate court), contending that because the suit sought alternatively recovery of khas possession or assessment of rent, the higher court-fee applicable to the alternative relief (Article 17 to Schedule II — a fee of Rs. 15) should be applied. The Taxing Officer accepted the Stamp Reporter's view. The appellants (plaintiffs) disputed the Taxing Officer's determination. Because the dispute raised a question of principle, the Taxing Officer referred the question to the judge (Jwala Prasad, J.) for determination as a Taxing Judge.
Legal Issues Presented
- Whether the plaintiffs' alternative prayer for assessment of fair and equitable rent is to be treated as a declaratory relief attracting the fee under Article 17 of Schedule II of the Court-fees Act (and thereby the higher fixed fee cited by the Stamp Reporter), or whether it is a consequential relief attracting assessment under section 7, clause (4)(c) of the Court-fees Act (ad valorem under Schedule I).
- If the relief for assessment of fair and equitable rent is not a purely declaratory relief, what is the proper basis for assessing court-fee on the plaint and on the memorandum of appeal (including the effect of amounts already received by the plaintiffs)?
Arguments of the Parties
Plaintiffs (Appellants)
- The plaintiffs characterised their memorandum of appeal in the second appeal as valued at one year's rent under sub-section 11 of section 7 of the Court-fees Act (they relied on the clause dealing with suits between landlords and tenants and argued valuation on the principle of section 7 clause (ii) of the Act).
- The plaint originally claimed alternative reliefs (khas possession or assessment of rent); plaintiffs treated the assessment as consequential on a declaration of title and, in the second appeal, reduced their claim because they had already received Rs. 3 out of Rs. 10 per katha proposed — thus the plaintiffs' present claim for assessment was for Rs. 7 per katha.
Stamp Reporter and Taxing Officer
- The Stamp Reporter contended that because the suit claimed alternative reliefs (recovery of khas possession, or in the alternative assessment of rent), the court-fee should be that applicable to the higher of the alternative reliefs; specifically, the assessment of rent (alternative relief) is assessable with a court-fee of Rs. 15 under Article 17 to Schedule II of the Court-fees Act, and that fee should therefore be levied.
- The Taxing Officer accepted the Stamp Reporter's report, concluding that the plaint and the memoranda of appeal were not properly stamped and that the plaintiffs (and the defendants with respect to their cross-appeal) should make up the deficiency in court-fee.
Appellants' Response to the Taxing Officer
- The appellants (plaintiffs) disputed the Taxing Officer's view and contended that the court-fee should be assessed under section 7 clause (4)(c) (or otherwise as appropriate), rather than by applying Article 17 of Schedule II as proposed by the Stamp Reporter.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kasinath Narayan v. Govinda | Cited by the Stamp Reporter to support the proposition that when alternative reliefs are claimed the court-fee payable should be the higher fee applicable to the alternative relief (Article 17 to Schedule II). | The court records that this case was relied on by the Stamp Reporter, but the judge ultimately did not adopt the Stamp Reporter's view that Article 17 applied to the plaintiffs' claim. |
| Mahanth Mukhlal Gir v. Ramdheyan Rai | Cited by the Stamp Reporter in support of the same principle: that the higher fee applicable to an alternative relief (Article 17) should be levied. | The court notes the citation but does not follow the Stamp Reporter’s conclusion based on these authorities; instead the court analyses the nature of the relief and applies section 7 clause (4)(c). |
| Dasrati Meshy v. Jay Chand Sutradhar | Cited by the Stamp Reporter as another authority for levying the higher fee where alternative reliefs include a declaratory relief assessed under Article 17. | Cited by the Stamp Reporter; the judge did not accept the resulting conclusion that Article 17 applied to the present case. |
| Kali Charan Rai v. Maharaja Kesho Prasad Singh | Held that a suit for assessment of rent and for recovery of specific sums as use-and-occupation damages was to obtain a declaratory decree with consequential relief and that such a suit fell under section 7, clause (4)(c) and not under section 7, clause (2). | The court relied on this ruling to indicate that a suit for assessment of rent comes within section 7, clause (4)(c), supporting the view that such suits are to be treated under the ad valorem provisions rather than under Article 17's fixed fee for purely declaratory suits. |
| Hemnalini Debi v. Maharaja Chandra Mouleshwar Prasad Singh Bahadur | In a suit for khas possession and mesne profits, and in the alternative for assessment of fair and equitable rent, a Bench held that the alternative relief for assessment asked the Court to determine the fair and equitable rent (i.e., it was not merely a prayer for a declaration of title) and refused the Stamp Reporter's view. | The judge found this case to be directly analogous ("on all fours") and followed its reasoning: treating the prayer for assessment of rent as not a purely declaratory relief and therefore not falling under Article 17 of Schedule II. |
| Lakhan Chunder Ash v. Khoda Buksh Mondal | Cited for the principle that where part of a claimed amount has already been received, the value of a claim in a second appeal is reduced accordingly for the purpose of court-fee assessment. | The court applied this principle to note that the plaintiffs' present claim for assessment was reduced from Rs. 10 per katha to Rs. 7 per katha because Rs. 3 had already been received, and that court-fee in the second appeal should be payable on the reduced claim. |
Court's Reasoning and Analysis
The court's analysis proceeds in discrete steps, each tied to the statutory scheme and to the authorities cited in the opinion:
- Statutory starting-point: The judge examined the relevant provisions of the Court-fees Act, focusing on section 7 (its several clauses) and the schedules (Schedule I ad valorem fees and Schedule II Article 17 for certain declaratory suits). The plaintiffs initially relied on section 7 clause (ii) (sub-section 11 was referenced) to value the memorandum of appeal as one year's rent.
- Meaning of section 7 clause (ii): The judge observed that clause (ii) concerns suits between landlord and tenant of kinds that involve rent "payable for the year next before the date of presenting the plaint" — i.e., cases where rent had already been payable. The judge concluded that clause (ii) does not apply to a suit for assessment of rent where there was no prior rent payable (an assessment implies there had been no rent previously).
- Nature of the relief claimed: The court carefully parsed the plaint's reliefs. The plaint first sought a declaration of title and want of the defendants' title, and then consequentially asked for ejectment or, in the alternative, an assessment of ground rent. The judge emphasised that the assessment of rent, as framed in the plaint, followed from and was consequential upon adjudication of title; assessment was not simply a request for a bare declaration. The rent suggested by the plaintiffs (Rs. 10 per katha) was a proposed fair rent, not an extant sum already payable.
- Treatment of "assessment" as consequential vs. declaratory: The judge distinguished a pure declaratory suit from a suit seeking consequential relief. He reasoned that assessment of rent in a pleadings framework like this is a consequential relief that the court is asked to determine (to fix a fair and equitable rent), not a mere declaratory pronouncement of title unconnected to consequential remedies.
- Authority and analogy: The judge relied upon Kali Charan Rai (which held that suits for assessment of rent fall under section 7 clause (4)(c) rather than clause (2)) and, particularly, Hemnalini Debi (a directly analogous decision where a Bench held that the alternate prayer for assessment of fair rent was not a prayer for declaration of title but a prayer to determine fair and equitable rent). The court followed Hemnalini Debi and treated the assessment prayer as consequential and not falling under Article 17 of Schedule II.
- Conclusion on applicable fee provision: Given the foregoing analysis, the judge held that the appropriate basis for assessing the court-fee on the plaint and on the memoranda of appeal (both in this Court and in the lower appellate court) is section 7, clause (4)(c) of the Court-fees Act (ad valorem under Schedule I for matters "not otherwise provided for"). Article 17 of Schedule II (applying to purely declaratory suits) was determined not to apply to the present case.
- Effect of amounts already received: Applying the principle from Lakhan Chunder Ash v. Khoda Buksh Mondal, the court noted the plaintiffs had already obtained Rs. 3 out of their Rs. 10 per katha claim; thus the value of the plaintiffs' claim in the second appeal was reduced to Rs. 7 per katha, and court-fee in the second appeal should be assessed upon that reduced amount.
Holding and Implications
Holding: The court held that the fee payable upon the plaint and upon the memorandum of appeal in this Court, as well as in the lower appellate court, must be assessed in accordance with section 7, clause (4)(c) of the Court-fees Act, treating the relief for assessment of fair and equitable rent as a consequential relief. Article 17 of Schedule II of the Court-fees Act, which applies to purely declaratory suits, does not apply to the present case.
Implications:
- Direct effect on valuation: The plaintiffs' present claim for assessment of rent is reduced to Rs. 7 per katha for the purposes of valuing the second appeal (because Rs. 3 had already been received), and court-fee must be assessed on that reduced amount in the second appeal (citing Lakhan Chunder Ash v. Khoda Buksh Mondal).
- Basis for fee assessment: The plaint and the relevant memoranda of appeal are to attract court-fee under section 7, clause (4)(c) and the ad valorem Schedule I provisions applicable to matters not otherwise provided for, rather than the fixed fee in Article 17 of Schedule II for purely declaratory suits.
- No expansion beyond the case facts: The judgment applies the statutory scheme and existing precedents (notably Hemnalini Debi and Kali Charan Rai) to the facts at hand. The opinion does not announce a novel legal principle beyond the application and reconciliation of existing authorities to decide which provision of the Court-fees Act governs the present plaint and appeals.
Jwala Prasad, J.:— This is a reference by the Taxing Officer under section 5 of the Court-fees Act, and it arises in connection with the second appeals filed by the plaintiffs in this Court.
The plaintiffs are proprietors of mauza Amehta. The defendants hold a house in khata no. 196, khasra no. 47, on land measuring 2 acre in the said village. The land has been entered in the survey record of rights as gair majruha of the maliks.
The plaintiffs' case is that the land was given to the defendants in lieu of services to be rendered by the defendants on condition that the plaintiffs would be entitled to take khas possession of the land either when the services were no longer required or when the defendants ceased to render those services; and that the defendants refused to render services from Srawan 1328 Fasli and are not inclined to do so and that they refused to quit the land or to pay rent. The plaintiffs, therefore, seek the following reliefs:
(1) That it may be adjudicated that the land or house is the gair majruha of the proprietors and was given as jagir to the ancestor of the defendants in lieu of rendering services on the condition that they would have no right to hold possession of the land in the event of not rendering services to the plaintiffs or of not paying ground rent; that the possession of the defendants is a trespass and the plaintiffs we entitled to recover possession;
(2) That on a declaration of the plaintiffs' title and want of title of the defendants, possession may be awarded to the plaintiffs by ousting the defendants, or in the alternative an order may be passed for recovery of ground rent at the rate of Rs. 10 per katha annually as per account given in the plaint, or any amount that may be considered proper by the court from the defendants.
The plaintiffs valued the suit at Rs. 6-8-0 in the case of Mani Sonar and another, at Rs. 19-8-0 in the case of Dahin Sonar and others and at Rs. 16-4-0 in the case of Baijnath Sonar, and paid court-fee thereon. The Munsif disallowed the prayer for khas possession, and allowed the prayer for assessment of rent fixing Rs. 10 per katha annually to be paid from Sawan 1328 Fasli up to the date of the suit.
On appeal the Subordinate Judge fixed the rate of rent at Rs. 8 per katha as a fair and equitable rent. The cross-appeal of the defendants was dismissed.
The plaintiffs have come to this Court in second appeal and seek to have the decrees of the Muns if restored, assessing the rent at Rs. 10 per katha, and have valued the memorandum of appeal at one year's rent under sub-section 11 of section 7 of the Court-fees Act, deducting therefrom the amount of rent decreed by the lower appellate Court.
The Stamp Reporter objected to the court-fee paid by the plaintiffs on the plaint and the memoranda of appeal in this as well its in the lower appellate Court. He contended that the suit of the plaintiffs being for recovery of khas possession, or in the alternative for assessment of rent, the court-fee payable is on the higher of these alternative reliefs claimed by them. The alternative relief for assessment is assessable with a court-fee of Rs. 15 under Article 17 to Schedule II of the Court-fees Act. This fee being higher than the court-fee payable for the relief for khas possession should be levied in view of the decisions in Kasinath Narayan v. Govinda, Mahanth Mukhlal Gir v. Ramdheyan Rai and Dasrati Meshy v. Jay Chand Sutradhar.
Accordingly, the plaint and the memorandum of appeal were not properly stamped and the plaintiffs must make the deficiency good with respect to the fee paid by them on the plaint in the trial Court and on the memorandum of appeal filed in this Court as well, as in the lower appellate Court. The defendants respondents similarly should have paid Rs. 15 with respect to the cross-appeal filed by them in the lower appellate. Court and should be called upon to make up the deficiency in the court-fee paid by them.
The Taxing Officer has accepted the report of the Stamp Reporter. The appellants dispute the view taken by the Taxing Officer, and the dispute thus raised between the Taxing Officer and the appellants has been referred to me for determination as a Taxing Judge, inasmuch as the dispute raised involves a question of principle.
The plaintiffs valued the relief upon one year's rent claimed by them on the principle of section 7 clause (ii) of the Court-fees Act. Under that clause court-fee is to be paid according to the amount of rent of the immovable property to which the suit refers payable for the year next before the date of presenting the plaint. The clause relates to suits of various kinds between landlord and tenant, such as, a suit for delivery by a tenant of a counter part of the lease, to enhance the rent of a tenant having right of occupancy, for the delivery by a landlord of a lease, for the recovery of immovable property from a tenant holding over after the termination of tenancy, to contest a notice of ejectment, to recover occupancy of immovable property from which a tenant has been illegally ejected by the landlord and for abatement of rent. The clause does not provide for a suit for assessment of rent which implies that no rent was paid previously by the defendant. The court-fee payable under this clause is upon the rent
“payable for the year next before the date for presenting the plaint.”
In a suit for assessment of rent there being no rent payable previously the clause does not apply. So far the Taxing Officer seems to be correct.
He, however, thinks that the prayer for assessment of rent amounts to a declaration, but this is not so. It is obvious from the reliefs quoted above that the plaintiffs firstly, seek a declaration of their right to recover possession of the property and of the absence of any right in the defendants to hold possession thereof and then upon such declaration they want to eject the defendants or to have rent assessed in the alternative. The terms of the second relief make it quite clear. It is in two parts, namely (1) to eject the defendants and (2) to have ground rent fixed in the alternative. Both these prayers in the alternative follow from the adjudication of the plaintiffs' title. Therefore, both these prayers are consequential reliefs sought by the plaintiffs upon a declaration of their the and of want of the defendants' title to the land in question. Therefore, it would be wrong to say that the prayer for ejectment is a consequential relief after adjudication of the plaintiffs' title, whereas the prayer for assessment of rent in the alternative is not a prayer for consequential relief but is only in the nature of a declaration. No rent was payable previous to the institution of the suit and the assessment of rent implies that the rent payable is uncertain and depends upon a determination by the Court. The rent of Rs. 10 per katha stated by the plaintiffs is only a suggestion of what they consider to be a fair and equitable rent.
Therefore, a suit for recovery of possession with mesne profits/and in the alternative for assessment of fair and equitable rent, is a suit for a declaration of the plaintiffs' title to the land and for consequential relief. In the case of Kali Charan Rai v. Maharaja Kesho Prasad Singh the landlord sued for assessment of rent and for recovery of specific sums as damages for use and occupation of the land. It was held that the suit was to obtain a declaratory decree where consequential relief was prayed and that it came within section 7, clause (4)(c), and not under section 7, clause (2) of the Court-fees Act. The latter clause applies to suits for
“maintenance or annuities or other sums payable periodically”
and the court-fee payable is according to the value of the subject-matter of the suit which is deemed to be ten times the amount claimed to be payable for one year. It was held that “other sums payable periodically” in the section must be construed as implying sums payable of the nature of maintenance and annuities upon the rule of ejusdem generis. This ruling indicates that a suit for assessment of rent comes under section 7, clause (4)(c).
The case of Hemnalini Debi v. Maharaja Chandra Mouleshwar Prasad Singh Bahadur seems to be on all fours with the present one. In that case the suit was for khas possession and mesne profits and in the alternative for assessment of a fair and equitable rent. The question of court-fee came before a Bench of this Court presided over by Das and Ross, JJ., the Stamp Reporter having taken the same view as in the present case. The order of the Bench was as follows:—
“We regret that in this case we are unable to agree, with the Stamp Reporter. We have carefully read the plaint and in our opinion the suit is for khas, possession and mesne profits, and in the alternative for assessment of fair and equitable rent. If the plaintiff succeeds in his appeal and if this Court refuses to give him khas possession, he would be entitled to a decree assessing fair and equitable rent payable by the defendant to him. We do not treat the alternative relief claimed by the plaintiff as a prayer for a declaration of title. It is clearly a prayer asking the Court to determine the fair and equitable rent payable by the defendant to the plaintiff.”
In the present case the plaintiffs have been refused khas possession. Their claim is now confined to a decree assessing fair and equitable rent payable to them by the defendants. They also claim a decree at that rate from the date the cause of action arose up to the date of the suit. The prayer for determining a fair and equitable rent was treated in the aforesaid suit to be in the nature of a consequential relief in the same way as the prayer for obtaining khas possession. Both the prayers are consequential reliefs.
Therefore, following this decision the prayer for assessment of rent is not in the nature of a declaratory relief and it does not come under Article 17, Schedule II of the Court-fees Act.
The plaintiffs' prayer is now for assessment of rent at Rs. 7, he having already received Rs. 3 out of his claim for Rs. 10 per katha. This reduces the value of the plaintiffs' claim in the second appeal and the court-fee is payable upon the reduced claim: vide Lakhan Chunder Ash v. Khoda Buksh Mondal.
The assessment of court-fee should be in accordance with section 7, clause (4)(c), as observed above. The same result is arrived at by looking at the provisions of the Court-fees Act. There is no particular provision in the Court-fees Act applicable to a suit, for assessment of fair and equitable rent and therefore ad valorem court-fee is to be paid under Schedule I of the Act which, as the heading shows, provides for fee payable on a plaint or written statement, etc., in cases
“not otherwise provided for in the Act.”
I, therefore, hold that the fee payable upon the plaint and the memorandum of appeal in this Court as well as in the lower appellate Court should be assessed in accordance with section 7, clause (4)(c), treating the relief for assessment of fair and equitable rent as a consequential relief. Article 17 of Schedule II of the Court-fees Act, which applies to purely declaratory suits, does not apply to the present case.
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