Ramkhelawan Sahu v. Bir Surendra Sahi

1. These applications in revision have been heard together, because they involve the same point and have arisen out of litigation concerned with the same subject matter. The question involved in such is as to whether the plaints should bear a court-fee computed under Section 7, Clause (iv)(e) of the Court fees Act, or whether it should be computed under Cl. (v) of the same Act. There is in each the further question whether this is a proper matter for the exercise of the revisional jurisdiction of the Court under Section 115 of the CPC. The matter first came before a Single Judge, who referred it to a Division Bench on account of certain differences of opinion manifested in the decisions of this Court and for the solution of these difficulties this larger Bench has been constituted.

2. On the preliminary question as to whether the revisional jurisdiction of the Court can be invoked, the argument in opposition to the application is as follows: It is contended that the matter of the proper stamp-fee lies solely within the jurisdiction of the trial Court: that the first Court is empowered to decide questions of law as well as questions of fact and that 4 revisional Court should not interfere with the decision of the final Court if it has exercised the powers within its jurisdiction. Furthermore, it is said that the plaintiff has a further remedy by way of appeal, because he may refuse to pay up the court-fee demanded of him and appeal against the decision rejecting the plaint. It has already been decided by this Court in 14 Pat 2201 that where the question is as to the particular category into which the suit falls, that is to say, whether the duty is payable upon the suit as belonging to a particular class, or whether another rate of duty is payable on it as belonging to another class, the decision of the first Court is subject to revision, because the refusal to entertain the plaint and the suit, unless the duty demanded be paid, is a refusal to exercise jurisdiction. In 14 Pat 4882 it was held that where jurisdiction originates in some special enactment, the construction of the enactment is always a matter for revision; as was said by Channel, J. in (1899) 1 QB 571,3 at page 575:

It seems to me clear that a tribunal cannot give itself a jurisdiction which it has not got by taking an erroneous view of the law.

3. See also, 14 Pat 488 at page 496:

We were given the benefit of a lengthy argument in support of the contention of the opposite part; that we had no jurisdiction under Section 116 of the CPC, to entertain the petition of the Raja of Amawan; but in my opinion this must fail. It amounts to a contention that a subordinate Court is the sole and final judge of the ambit of its own jurisdiction. It is certainly true that the High Court will not interfere in revision with a decision on the merits even if the lower Court should err both in law and in fact, provided always that such subordinate Court had jurisdiction to entertain the dispute between the parties. But if it be contended, as in this case, that the Court had no jurisdiction whatever to entertain the matter, this Court must listen to the contention and if it should find that the lower Court has made a mistake as to the extent of its jurisdiction, it may then interfere and this is particularly so when the lower Court, in determining the ambit of its own jurisdiction, construes a Legislative enactment.

4. It has also been pointed out by this Court that the Civil Courts are charged with two functions: (a) the decision of suits on their merits; and (b) the collection of revenue on behalf of the Crown, and that the revisional jurisdiction of an Appellate Court can be invoked against the decision of the first Court in either capacity provided the question of jurisdiction is involved. Indeed, the application of revisional jurisdiction may well be more necessary in the case of decisions on matters of revenue. It is a fundamental point of our jurisprudence that the Crown cannot levy taxation unless such taxation be authorized by law. The Court is given power to levy taxes upon certain classes of cases only, which are specified in the Act, and upon each class at the rate specified in the Act. If the decision of the first Court is to be treated as final in any particular case, it might possibly happen that all the Munsifs might adopt a uniform but entirely erroneous view of the taxation authorized by the Act and the matter could never be remedied by the superior Court, because on the principle that the first Court had the privilege of deciding rightly or wrongly the matter, the matter could never be raised in any case. One would have thought that after the decisions we have cited, the question would have been set at rest. In the case, however, in 17 PLT 94 the learned Judges were under the impression that the decision in 14 Pat 2201 above summarized was in the nature of an obiter dictum, because the plaintiff's petition was rejected on its merits. We fear that they did nob clearly realise the meaning of the phrase ‘obiter dictum’, or the circumstances in which it is applicable. It frequently hap pens that the contentions raised by the plaintiff require two or more separate decisions in the same judgment. Thus, a plaintiff may allege: (a) that he is the duly elected mayor of a town; (b) that by virtue of that office he is entitled to possession of certain property and (c) that the defendant is in fact in possession of the property claimed, and he may ask for a decree for possession. The Court may decide all the three points, holding (a) that the plaintiff is not the mayor of the town, (b) that the holding of the mayorship would not entitle him to the property claimed and (c) that the defendant is not in possession. The legal decision on the rights of the mayor (if decided after argument) does not become obiter dictum merely because the decision on the other two points was sufficient to decide the case. Much misuse has been made of the phrase that “a case is an authority only for what it decides”, and we fear that the phrase quoted from the judgment of the House of Lords in (1901) AC 4955 is often invoked to get rid of an authority which is thought to be inconvenient. The decision in the matter of the principle applicable in 14 Pat 220 was arrived at after the fullest argument and is direct authority for the principle therein stated, and the decision on this point cannot be considered as obiter dictum. In 16 PLT 158,6 decided shortly after 14 Pat 220, a learned Judge of this Court sitting singly and examining an unofficial report of the case in 14 Pat 220 appears to have thought that the decision as reported was so repugnant to the principles (as he understood them) to be derived from earlier Privy Council cases and decisions of this Court, that the decision must have been misreported. On examining the unofficial report, however, this does not appear to be the case. The learned Judge moreover entertained an erroneous idea as to the earlier Privy Council case relied on by him and in our opinion his decision was wrong, and the decision in 14 Pat 220 does not conflict with the decisions of the Judicial Committee. It is quite true that where a lower Court has jurisdiction to decide questions of law and fact as between the parties, the superior Court will not exercise revisional jurisdiction against the decision whether it be right or wrong; but the superior Court, will interfere in revision where the jurisdiction is derived from statute and the matter is one of the construction of the statute. There are numerous instances of the exercise by the Privy Council of this jurisdiction: see for example 20 Cal 87 in which they interfered with the misconstruction of O. 21, R. 89; 44 IA 2618 where they interfered with the construction of the section of Religious Endowment Act; 4 Pat 619 where they interfered with the construction of O. 17, R. 2 and in 46 Cal 96210 Sir George Rankin, J., as he then was, interfered with the construction of a section in the Provident Funds Act.

5. The Courts in India have often interfered with decisions in Court-fees Act matters. For example, in 10 Bom 61011 a Full) Bench of the Bombay High Court interfered with the decision of the subordinate Court in the matter of the duty payable under the Court-fees Act. The same courses was taken by the Calcutta High Court in 62 Cal 417.12 In 56 Mad 744,13 decided by a Full (?) Bench, the decision of the Court is of great interest. The Judge had held that the court-fee paid on the plaint was sufficient. The Government presented a petition for revision, asking for a higher duty. The High Court approved an earlier decision in 51 Mad 66414 to the effect that where a Judge on an erroneous view of the court-fee payable refuses to proceed with the suit until the proper court-fee is paid, he fails to exercise the jurisdiction, as the party is entitled to have his case tried if he paid the court-fee, and a still earlier case decided by a single Judge in 48 MLJ 51415 where it was held that, where the trial Court wrongly ordered payment of court-fee over and above what was paid on the plaint, it was the practice of the High Court to interfere with the order in revision without leaving the aggrieved party to the cumbrous remedy of filing an appeal after the plaint is rejected for non payment of the amount directed to be paid, the question really being one of jurisdiction, as the plaint has to be rejected if the stamp duty is not paid (and it must be remembered that the duty would have to be deposited before an appeal to the High Court could be heard). But the Full (?) Bench also decided that where the Judge held the court fee to be sufficient, a revision did not lie, for the matter could be corrected by the Appellate Court under Section 12 of the Court-fees Act.

6. It does not appear that any of these cases was brought to the notice of Wort, J. when deciding the case in 16 PLT 158. In a recent case decided by the Privy Council in 41 CWN 81416, Sir George Rankin pointed out that the Court has no jurisdiction to dismiss a suit for non-payment of Court-fees Acting under Cl. 2 of S. 11. As to the case in 11 Cal 6,17 the Privy Council case cited by the learned Judge and supposed by him to be in conflict with the decision of this Court in 14 Pat 220, the question before the trial Court was as to whether the matter at issue between the parties had already been decided in an earlier case. The trial Court decided that the matter at issue had been decided in the earlier case and so refused to proceed further with the suit. Now the question of res judicata is one of fact and is an issue between the parties to the suit, and it was held by the Privy Council that a superior Court could not revise that decision; whereas in the case before Wort, J. as in the case before us, the matter was one of court-fee payable and this is the question not between the parties but between the Crown and the plaintiff: see, 16 Pat 600 : 18 PLT 665.18 This true that in the trial of the suit the Munsif commonly “frames an issue” as to whether the court-fee paid is sufficient, but the issue so framed is not one between the parties and has nothing whatever to do with the merits of the suit. The defendant may contend that the court-fee paid is insufficient with a view to preventing the suit from being tried, but in arguing, his contentions the defendant is really acting as a common informer. The Crown may be grateful for his assistance, but it is not a matter which really concerns the defendant. The Court is doing nothing wrong in hearing the contentions of the common informer, but in deciding the question of court-fee he is deciding an issue not as between the plaintiff and the defendant wherein his decision both on law and fact is not subject to revision, but is deciding an issue as between the Crown and the plaintiff; and should his decision be adverse to the plaintiff, it amounts to a decision to refuse to exercise his jurisdiction to try the issues as between the plaintiff and the defendant. His decision in such a case is subject to the revisional jurisdiction of the High Court. Where however the decision is in favour of the plaintiff, it is not open to the defendant; to apply to the Court for revision: see the cases collected in 17 PLT 9, at page 10, for in the first place he is not a party to the dispute between the Crown and the plaintiff; secondly, he has a remedy, should the decision on merits be against him, in bringing the matter of the duty to the notice of the Appellate Courts-under Section 12 of the Court-fees Act; and thirdly and most important, as between the plaintiff and the defendant the trial Court has not refused to exercise its jurisdiction to decide the case on the merits. It is useful here to call attention to the observation of the Privy Council at page 32:

The Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State….

7. It is nob necessary to consider the other decisions cited by the learned Judge. We hold that his opinion that the High Court; cannot interfere with an erroneous decision of the trial Court adverse to the plaintiff in the matter of court-fee is erroneous and indeed contrary to the decisions of this Court.

8. We now approach the merits of the two cases respectively. The question in issue is whether the suit falls within Section 7, Para, (iv)(c), or within Para, (v) of the Court-fees Act. Section 7, Para, (iv) sets forth different classes of suits in which the duty is to be levied according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. Six classes of suits are included under this paragraph and they are as follows: (a) for moveable property where the subject matter has no market value, as for instance in the case of documents relating to title; (b) to enforce the right to share in any property on the ground that it is joint family property; (c) to obtain a declaratory decree or order, where consequential relief is prayed; (d) to obtain an injunction; (e) for a right to some benefit (not herein otherwise provided for) to arise out of land, and (f) for accounts. We agree with the opinion of Sir George Rankin, C.J, sitting as the Taxing Judge in 58 Cal 281,19 at page 281:

The Act in sub-s. (iv) is dealing with claims which do not yield themselves readily to any statement of money value and in leaving the matter to the plaintiff's valuation, subject to Sections 4 and 9 of the Suits Valuation Act, it proceeds just as much upon a considered policy as it does when, by Article 17 of Sch. 2 of the Act, it charges certain classes of suits with a fee which is irrespective of Value: 36 Cal 20220.

9. It would seem that there is much misunderstanding in India as to the legal meaning of the word “declaration” as applied to a remedy to be granted by a Court. The habit has grown up of describing a suit for possession of property as being a suit “for a declaration of title together with a decree for possession of the property in suit,” and the word “declaration” has been used to mean what would more correctly be described as the finding of fact necessary before the decree for possession can be granted. In every suit for possession the plaintiff cannot succeed unless he proves the facts necessary to establish his title, bub the real remedy which he seeks is a decree for delivery of possession. The distinction between the remedy sought and the finding of fact necessary to justify the granting of that remedy may be simply tested by considering whether the plaintiff obtaining an order for possession but having been refused a formal “declaration” in the decree could come to the appellate Court with a complaint that he had nob received the whole of the remedy for which he had asked. If the Appellate Court is in a position be tell the plaintiff that the remedy of possession is all that the plaintiff is entitled to ask and that the so-called “declaration” claimed in the plaint is merely a finding of the Court set forth in the judgment as distinct from the decree, the jurisdiction for granting the remedy, then the so called “declaration” claimed in the plaint is nob a declaration at all.

10. If, on the other hand, the Appellate Court should find that the plaintiff is really making a claim to a declaration properly so called and that the decree for possession is merely consequential relief, it may under S. 12 of the Act adjust the matter of the court-fee in accordance with S. 7, Para. (iv). It is this very difference which is at the basis of the practice under which the Court will not ordinarily grant a mere declaration and the plaintiff must claim consequential relief also. S. 7, Para, (iv)(c) has application to declarations properly so called, such for instance as declarations of public status, or a declaration that the plaintiff holds a public office, or a declaration as to the meaning of a will or a trust deed or other public document. It has no reference to the kind of declaration in the sense of a finding of fact as to the plaintiff's title necessary for granting a decree for possession. It is not in the least necessary for a plaintiff in a suit for possession to claim a declaration. Indeed declarations in the true sense are rarely required. The plaintiff should only allege the facts necessary to establish his title and that the defendant is wrongfully in possession. If he goes on to claim, in the manner so beloved of pleaders, a declaration of title in addition to an order for possession, the Court may and should treat the case as a claim for possession pure and simple, and ignore entirely the claim for a “declaration of title”. Suits for possession of land, houses and gardens are to bear a court-fee as provided by Para, (v), that is to say, if the land forms an estate paying revenue to Government, at a multiple of the revenue so payable. There are also provisions for valuing the suit where the land does not pay revenue to Government, and; also for valuing the suit if the subject matter is a house or garden. Therefore, the valuation of the suit for court, fee purposes is to be determined by the question of whether the suit is really one for a declaration in the true sense of the word, or whether it is a suit for possession; and, if there be a claim in the plaint for a; declaration, the plaint should be examined I to see whether it is a declaration properly so called, or whether it is an unnecessary: claim and the suit is really a suit for possession. In the case we are now considering, the plaint sets forth the facts alleged, and I abridge it by eliminating irrelevant statements and the customary verbosity: (a) One Raja B.P.N Singh died on 13th January 1871, his first wife having predeceased him by some five years, (b) that during the lifetime of the first wife the said Raja had married in asura form one Rani Rajbansi Kuer, (c) that Rani Rajbansi Kuer bore to her husband a daughter by name Ramdutta Kuer, (d) that Ramdutta Kuer married one Hira Sahi and died in 1893, before the death of Rani Rajbansi Kuer, leaving no issue, (e) that the plaintiff is the heir of Rajbansi Kuer, (f) that certain properties set forth in the schedule were the absolute stridhan properties of Rani Rajbansi Kuer, (g) that the defendants are in possession of the same properties claiming to be the issue of Ramdutta Kuer.

11. The plaintiff claims (1) possession of the scheduled properties, (2) costs and (3) any other relief to which the plaintiff may be entitled in the opinion of the Court. It is true that the plaint attempts to anticipate a possible defence and says that the defendants will rely upon certain dispositions of the property falsely stated to have been made by Rani Rajbansi Kuer. But the essential facts are as I have summarised them above, and the claim is limited to a claim for possession. In these ciroumstances there cannot be any pretence that the claim is one for a declaration with; consequential relief. It was therefore correctly stated by the plaintiff that the suit should be valued for court-fee purposes as provided by S. 7, Para. (v). In the case which has given rise to Civil Revision No. 123 of 1937, the plaintiff claims the same property on the allegation that Rani Rajbansi Kuer was the second wife of Raja B.P.N Singh and that on his death she succeeded to the properties of the deceased as a limited owner of a Hindu widow's estate and that when she died the plaintiff was the nearest agnate and the heir of her husband. In this case again the plaint is very verbose and contains much irrelevant matter and it proceeds to anticipate the defence and states that the defendants are claiming under an alleged gift in perpetuity in favour of certain idols and that they were the shebaits of the scheduled properties, and submits that the so called gift was invalid, and that the defendants had effected certain fraudulent registrations. The plaint winds up by praying for a decree for possession, a decree for mesne profits and a request that if the possession cannot be granted and that if the deed of dedication upon which it is anticipated that the defendants will rely be held valid, then the plaintiff is the legal shebait and that a decree for possession be granted in his favour.

12. It is suggested that the plaintiff claims to set aside the deed of gift, but if, as the plaintiff avers, the deed was void, the defendants obtained nothing under it and it may be ignored and there need be no suit or claim to have it set aside: see, 35 IA 98.21 In this case also the suit is really one for possession of property and no declaration is sought for or required. The plaintiff is simply claiming possession as the next reversionary heir of the deceased husband of Rani Rajbansi Kuar. The learned Subordinate Judge considers as to both of these cases that the plaintiff in neither case can claim possession until he has claimed a “declaration of title”, because the defendants in both cases have challenged the title of the plaintiff. This view is quite erroneous, and we hold that the plaintiff in each case has rightly claimed that the court-fee must be assessed on a suit for possession. The applications succeed and the respondents will in each case pay the costs: hearing, fee in each case ten gold mohurs.

V.B.B/R.K

13. Applications allowed.