Smt. Sabina Alias Farida vs Mohd. Abdul Wasit [ALL HC MADHYA PRADESH 1996]

• In a case where plaintiff is in possession of the property in his own rights, comes before the Court and seeks declaration that the property belongs to him and the other party cannot interfere with his possession then it cannot be said that plaintiff is require to pay the ad valorem Court-fees because the relief of injunction is a consequential relief.

ORDER

1. The applicant-plaintiff being aggrieved by the order 21-2-92 passed in Civil Suit (unregistered) by the learned 1st Additional District Judge, Bhopal, directing the plaintiff to pay the proper Court-fee, has preferred this revision.

2. The brief facts necessary for the present revision are that the plaintiff claiming to be an owner and title holder prayed for a declaration that the House No. 25 (the suit house) belongs to her exclusively and the defendant has no right and is not entitled to interfere with the possession of the plaintiff. For the purposes of the declaration the plaintiff valued the suit for Rupees Three lacs but, however, paid the fixed Court-fee under Schedule II, Article 17 of the Court-fees Act and for the purposes of the injunction valued it for Rs. 300/- and paid Court-fees Rs. 30/-, in all valued the suit for Rs. 3,00,300/- and paid Rs. 60/- as Court-fees. The learned trial Court before registration of the suit, while checking the plaint came to the conclusion that the plaintiff has not properly valued the suit. It is note-worthy that in the order itself referring to State of M.P. v. Ramswarup, 1977 (2) MPWN 306 the Court below has observed that the plaintiff is in possession of the property and the alleged declaration is in relation to her title only therefore, the Court-fees on the market value of the property is not required. However, the Court below referring to S.R.M, Ars. Sp. Sathappa Chattiar v. S.R.M. Ar. Rm. Ramanatham Chettiar, AIR 1958 SC 245 observed that the plaintiff must be given an opportunity to clear the ambiguity between the valuation of the suit and the Court-fee. Being aggrieved by this order the plaintiff has preferred this revision petition.

3. Shri Jain submitted that for attraction of Section 7(iv)(c) of the Court-fees Act the consequential relief must flow directly from the declaration or without such consequential relief either the declaration, or without the declaration such a consequential relief cannot be granted. According to him Article 17 of Schedule II would be applicable for the purposes of the Court-fee and the plaintiff being the dominus litis was entitled to put his own valuation of the property for the purposes of the pecuniary jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. of the Court. On the other hand Shri Lalwani submitted that in the instant case the plaintiff could not have sought an injunction unless she was declared owner of the property and unless injunction is granted in her favour no declaration can be made. According to him Section 7(iv)(c) fully applies to the facts of the case.

3-A, Section 7(iv)(c) refers to a prayer for a declaratory decree and consequential relief.

Where the plaintiff wants to claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. an injunction which is a consequence of declaration or where without declaration of right or status the injunction cannot be granted, Section 7(iv)(c) would apply with full force. Section 7(iv)(d) relates to the relief of the injunction. Article 17 of Schedule II of Court-fees Act refers to certain suits wherein the fixed Court-fee is to be paid. It relates to such reliefs where the plaintiff seeks to obtain declaratory decree where no consequential relief is prayed. Section 7(iv)(c) and Article 17, of Schedule II read together lead to only irresistible conclusions that if no consequential relief is prayed for Section 7(iv)(c) would, not be applicable and plaintiff is not liable to pay the Court-fees on the market value pf the property as a simple declaration would be sufficient. The Supreme Court in the matter of Shamshersingh v. Rajinder Prashad, AIR 1973 SC 2384 has observed as under :–

The expression “consequential relief means some relief, which would follow directly from the declaration given, the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a “substantial relief. In the matter of Mahant Purshottam Dass v. Har Narain, AIR 1978 Delhi 114 (FB), the High Court following the observations of the Supreme Court further held that where the Court held that the plaintiffs could not claim the relief of injunction without praying for declaration as prayed for, it must also be held that the relief of declaration and injunction prayed for is a claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. to obtain declaratory relief where consequential relief is prayed for.

4. The true test for ascertaining whether the consequential relief in fact flows from the declaratory relief is as to whether the said consequential relief can be claimed independently of the declaration as a substantial relief or not. Every injunction in a suit for declaration would not follow from the declaration. In a case where plaintiff is in possession of the property in his own rights, comes before the Court and seeks declaration that the property belongs to him and the other party cannot interfere with his possession then it cannot be said that plaintiff is require to pay the ad valorem Court-fees because the relief of injunction is a consequential relief. As observed above the relief of injunction if can independently he claimed then in every case it would not be a consequential relief. It is settled law that if a person is in settled possession he cannot be evicted except in accordance with law. Such a person if claims a declaration of his title and injunction that the defendants be restrained from interfering with his possession then the relief of injunction is not a consequence of the declaration because even if the Court is of the opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. that the declaration cannot be made in favour of the plaintiff then too the Court will grant an injunction in favour of the person who is in settled possession. Such a person would be called upon to value both the reliefs separately and each of the reliefs would be independent of the other. In a suit of this nature the plaintiff is not seeking the relief of injunction as consequential relief but is entitled to claim the same because of his settled possession. In such a case Section 7(iv)(d) of the Court-fees Act would be applicable for valuing the relief of injunction and Article 17 of Schedule II of the Act would provide the Court-fees for the said declaration. In the matter of Sanik Nagar Durga G.N. Samiti v. Indore City Improvement Trust, 1983 MPWN Note No. 66, in almost similar situation where the plaintiff sought for the relief of declaration and injunction to restrain the defendant from starting the construction over the suit land, this Court observed that in fact the plaintiff was claiming two distinct reliefs, one for declaration of title and the other for preventive injunction. The relief of injunction in fact was not consequential to the relief of declaration because even without claiming the declaration relief, plaintiff could have brought the suit on the same pleadings seeking the relief for injunction only. These were two distinct and separate reliefs. The High Court further observed that the relief of injunction though related to question of plaintiffs title, was not consequential to the declaration. In the instant case also the plaintiff has sought-declaration of her title and has prayed for injunction. Each of the relief can be claimed separately. If it is found that the reliefs can be claimed separately then the relief of injunction would not be consequential relief to the relief of declaration. In the case in hands the plaintiff has rightly valued the suit for the purposes of the declaration and was liable to pay Court-fee in accordance with Article 17 of Schedule II. The Court below has not found any fault with the valuation of the relief and payment of Court-fees on the relief of injunction, therefore, it does not need any discussion.

5. The Court below was alive to the fact that while seeking declaration, the plaintiff who is in possession of the property is not required to pay the Court-fees on the market value of the property but got itself unnecessarily involved in the provisions of the Court-fees Act and Section 8 of the Suits Valuation Act.

6. In view of above the order passed by the Court below is not justified and deserves to be set aside. It is accordingly set aside. It is held that the plaintiff has properly valued the suit and has paid proper Court-fees. The revision is allowed. However, there shall be no orders as to costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..