This Civil Revision Petition raises the question of the correctness of the order of the Subordinate Judge, regarding the Court fee payable on the plaint before him. The plaintiffs have filed this suit, in respect of a mortgage executed by defendants 2 and 3, that is, their father and brother respectively, in favour of the 1st defendant. The plaintiffs claim that they are members of an undivided Hindu family, along with defendants 2 and 3, that the mortgage is not supported by consideration and that it is not binding upon them. The plaintiffs contend that Court fee is payable under Sch. II, Art. 17 (a) (1) of the Court Fees Act, that is, that the plaint is filed to obtain a declaratory decree and no consequential relief is asked. On the other hand, the defendants urge that the suit falls within Sect. 7 Cl. 4 (c) of the Court Fees Act, in other words, that the plaintiffs seek to obtain a declaratory decree, as well as a consequential relief. The learned Subordinate Judge, agreeing with the defendant's contention, directed the plaintiffs to pay additional Court fee.
A preliminary objection was raised by the defendants, respondents, that the decision of the lower Court is final, under Sect. 12 of the Court Fees Act. This objection must be overruled, as the question is concluded by the authority of Lakshmi Amma v. Janamajayan Nambiyar, where it was held that a decision, as to a category to which a suit or appeal belongs, is not final. The real question, therefore, to be decided is whether the suit is governed by Sect. 7 Cl 4 (c), or by Sch. II, Art. 16 (a) (1). The answer must, in my opinion, depend upon the relief, which the plaintiff prays for, because Court fee must be determined, with reference to the prayer contained in the plaint. The plaintiffs here ask for a declaration that the mortgage is not supported by consideration and is not binding upon them. The learned Subordinate Judge thinks that the plaintiffs have asked, or perhaps he thinks ought to have asked, for not merely a declaration, but also for a consequential relief, namely, the setting aside of the document. Maclean, C. J., seems, with respect, to have stated the law correctly on this point in his Judgment, in Zinnatunnessa Khatun v. Girindra Nath Mukerjee
“The safest course in these cases is to ascertain what the plaintiff actually asks for, by his plaint, and not to speculate upon what may be the ulterior effect of his success”.
If this test is applied, the suit has been properly valued, and the order of the learned Subordinate Judge cannot be supported.
But the same result would follow, although a different line of reasoning is adopted, as has been done in Chingacham Vitil Sankaran Nair v. Chingacham Vitil Gopala Menon, Arunachalam Chetty v. Rangasawmy Pillai and Chathu Kutty Nair v. Chathu Kutty Nair.
The plaintiffs not being parties to the document, it is settled law, that they are not bound to get rid of it, by having it actually cancelled. The first two of these three decisions lay down that the Courts must look at the substance of the plaint and not at the language of it; and if the plaintiff is bound to have the document set aside, the plaint must be treated as including a prayer for consequential relief; but it is not incumbent on the plaintiff to get rid of the document. The plaint must be treated as one for a declaration only. In the present case, the plaintiffs are not parties to the document in question and, even applying this test, the suit is merely one for declaration.
Were the matter res integra, I would base my decision, on the principle accepted by the Calcutta High Court. It seems to me not logical to say that the relief is not properly valued, because the plaint does not ask for an appropriate remedy. If the plaintiff is bound to ask both for a declaration and the setting aside of a document, but prays merely for a declaration, in my opinion, the suit must be treated for purposes of Court fees, as one for declaration. It is not for the Court to say that the plaintiff should have framed his plaint differently and, if he had done so, a higher Court fee would become payable and therefore the plaint before the Court should be treated as containing a prayer, which it does not in truth contain. If a plaintiff contents himself with asking for a declaration, whereas he ought to ask for a declaration and consequential relief, the suit is liable to be dismissed, not because of improper valuation of the suit, but because he infringes the provision of Sect. 42 of the Specific Relief Act, which enacts that no court shall give relief, by way of a declaration, where the plaintiff is able to seek further relief, but omits to do so. It is unnecessary to pursue this matter further. The matter is concluded by authority, and so far as the present point is concerned, whichever line of argument is accepted, the same result follows.
Lastly, an objection was taken that the order having been made in the course of a suit is not liable to be revised by this Court. In similar cases, the High Court exercised its powers in revision and in my opinion, rightly and I over-rule this objection.
In the result, the Civil Revision Petition is allowed and the costs will be costs in the cause.
W. S. S.Petition allowed..