High Court · 2005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-02-2005CORAM :THE HONOURABLE MR. JUSTICE A. KULASEKARANC.R.P. (PD) No. 2857 of 2003andC.M.P. No. 21508 of 2003-o-1. T.S. Sridharan2. R. Suresh Kumar.. Petitioners/ PetitionersVersus1. M.F. Simon2. Fedrick Simon.. Respondents/ Respondents Revision under Section 115 of CPC against the Order dated 10-11-2003 made in I.A. No. 12952 of 2002 in O.S. No. 1540 of 1997 onthe file of IIIrd Assistant City Civil Court, Madras.For Petitioners :Mr. T.R. Rajagopalan, Senior Counsel for Mr. Irwin AaronFor Respondent :Mr. N. Rajan for caveatorORDERThe 7th and 8th defendants are the revision petitioners herein,who have filed this revision petition against the order ofdismissal of the application filed by them under Order VII Rule 11CPC in I.A. No. 12952 of 2002 in O.S. No. 1540 of 1997 by thelearned IIIrd Assistant City Civil Judge, Madras.2.The respondents 1 and 2 herein have filed the above saidsuit i.e., O.S. No. 1540 of 1997 for the below mentioned reliefs.a)for a declaration to declare that the first plaintiff isthe co-founder of the Social Welfare Centre Johan Maasbach WorldMission, along with the second defendant at No.10 (Old No.40),Arcot Road, Saligramam, Madras-93;b)for a declaration that the first plaintiff and hisfamily members particularly the second plaintiff herein, areentitled to administer the Social Welfare Centre Johan MaasbachWorld Mission at No.10 (Old No.40), Arcot Road, Saligramam,Madras-93 and its properties, scheduled in the plaint;c) for a declaration that the registration of the society inthe name and style of Social Welfare Centre Johan Maasbach WorldMission, dated 21-02-1976 (S.No.33/76) is null and void; https://hcservices.ecourts.gov.in/hcservices/ d)For a permanent injunction restraining the defendants 5to 9, their agents and their men, for interfering with the affairsof the Social Welfare Centre Johan Maasbach World Mission, atNo.10 (Old No.40), Arcot Road, Saligramam, Madras-93 and for costsand other reliefs3.The petitioners herein have filed I.A. No. 12952 of 2002under Order VII Rule 11 of C.P.C. for rejection of the plaint onthe ground that the relief (b) and (c) sought for in the suitrelates to declaration with respect to suit schedule mentionedimmovable properties and it's value is not less thanRs.3,00,00,000/- and the court fee payable thereon would beRs.1,50,00,000/- being 50% of the value thereof; whereas, therespondents have filed the suit, valuing prayer (b) and (c) of thesuit at Rs.400/- each and in view of payment of insufficient courtfee, the plaint is liable to be rejected. The trial court,after giving opportunity to both the sides dismissed the said I.A.No. 12952 of 2002.4.Mr. T.R. Rajagopalan, learned Senior counsel appearingfor the petitioners submits that the trial court erred indismissing the application on the erroneous ground that thereliefs claimed in the suit were incalculable valuation and thevaluation adopted and court fee paid by the respondents iscorrect; that the respondents are not office bearers of thesociety, while so, for claiming administration of the society andits properties, the respondents ought to have paid court fee tothe extent of 50% of the value of the property; that the plaint isliable to be rejected for non-payment of proper court fee; thoughthe prayer appears in respect of intangible right, it is nothingbut claiming right in immovable property; that the trial courtvalued the property at Rs.15,08,33,000/- but has erroneously heldthat payment of court fee paid under Section 25 (d) of the CourtFee Act is correct, and in view of the fact that the propertyvalues more than Rs.10,00,00,000/-, the trial court has nopecuniary jurisdiction to entertain the suit and this fact wasalso lost sight of by the trial court. In support of thiscontention, the learned Senior counsel relied on the belowmentioned judgments.i)(Kattiya Pillai and another Vs. Ramaswamia Pillai andothers) AIR 1929 Madras 396 @ 398 a Division Bench of this Courtheld thus:-"The plaintiff asks that the will may be declared void. Thatsection further enacts, that in such a suit, the Court may in itsdiscretion, adjudge the instrument void or voidable and order itto be delivered up and cancelled. In a suit rightly framed underthat section, it is the Court's function to order the instrumentto be cancelled. It is not a part of the prayer in the plaint.Then again, the section goes on to say that if the instrument isone that has been registered under the Registration Act, the Courtshall send a copy of its decree to the Registeration Officer,whoshall note in his book that his instrument has been so cancelled.This again, is not a relief which it is the duty of the plaintiffto sue for, but it is the duty of the Court to grant. Now, https://hcservices.ecourts.gov.in/hcservices/ looking at the present plaint, it is thus clear that the prayerrelating to (i) the cancellation of the will and (2) thecancellation of the regisration is unnecessary and superfluous. In deciding what the proper Court fee payable is, the Courtmust have regard to the substance of the thing and not the mereform in which the relief has been prayer for."ii)(Gnanambai Ammal vs. Kannappa Pillai and others) 1959(1) MLJ Madras Page No.355 wherein it was held that 'it is alsoquiet true that in order to determine the class under which a suitfalls for the purpose of Court fee, the substance of the relief asdisclosed in the plaint taken as a whole should be looked into andnot the form of the prayer in which the relief is cast'.iii)(The Kullitalai Bank Ltd., rep. by its Managing DirectorS. Anna Durai vs. Vedavalli Ammal and others) 1962 Volume 76 LawWeekly Page No.28 wherein this Court held that 'The only questiontherefore is whether the instant plaints can be regarded as askingfor reliefs with reference to immovable properties. As I said,both the averments and the nature of relief sought leave no roomfor doubt that it is essential for the plaintiffs to get thereliefs they want, to decide the question of title relating to theproperties. Without deciding that question, it is impossible todispose of the suits.iv)(Shamsher Singh v. Rajinder Prashad and others) (1973) 2SCC 524 wherein it was held by the Honourable Supreme Court thus:-The decision of the Lahore High Court in Prithvi Raj v. R.C.Ralli, is exactly in point. It was held that in a suit by the sonfor a declaration that the mortgage decree obtained against hisfather was not binding upon him it is essential for the son to askfor setting aside of the decree as a consequence of thedeclaration claimed and to pay ad valorem court-fee under Section7(iv)(c). It was pointed out that a decree against the father is agood decree against the son and unless the decree is set aside itwould remain executable against the son, and it was essential forthe son to ask for setting aside the decree. In Vinayakrao v.Mankunwarbai, it was held that in a suit by the son for adeclaration that decree against the father does not affect hisinterests in the family property, consequential relief is involvedand ad valorem court-fee would be necessary.v)(J. Kasthuri and others Vs. Seth Ghanshamdas VonsimalDeva Bank) 1979 (2) MLJ Page No.11 wherein a learned Single Judgeof this Court held in para-4 thus:-"4....There can be no doubt whatever that for the purposeof determining the court-fee payable, it is the substance of therelief that a plaintiff prays for that has to be taken intoaccount and not the technical form of the prayer. If it is to beother wise, mere astuteness and ingenuity of the person draftingthe plaint will have the effect of not only camouflaging anddisguising the real relief which a plaintiff claims in a suit butalso nullifying and defeating the provisions of law dealing with https://hcservices.ecourts.gov.in/hcservices/ the payment of court fee based on the nature of the relieflitigants seek in a Court of law."vi)(M. Radhakrishnan Vs. M. Nanda Kumar) 2002 (3) CTC 154wherein it was held in Para-9 thus:-"It is settled law that the Court, in deciding the questionof Court fee, should look into the allegations in the plaint tosee as to what is the substantive relief that is asked for. Mereastuteness in drafting the plaint will not be allowed to stand inthe way of the Court looking at the substance of the relief askedfor. The Courts have to be, not only vigilant and read betweenthe lines with a view to arrest the tendency of the litigant tounder-value the reliefs, and to pay the minimum Court fee and toobtain the substantial relief, but also ensure the State does notlose revenue. This principle has been emphasised by the SupremeCourt reported in (Shamsher Singh Vs. Rajinder Prasad and others)AIR 1973 SC 2384.5.Mr. Rajan, learned counsel for the respondents submitthat the relief claimed in the suit pertains to intangibleproperty and not immovable property owned by the society, hencethe court fee paid under Section 21 (d) of the Court Fee Act isperfectly valid; that the respondents are not claiming any titleto the plaint schedule mentioned property in their individualcapacity but only praying for a declaration that they are entitledto administer the society and it's properties and prayed fordismissal of the revision petition. The learned counsel appearingfor the respondents relied on the below mentioned decisions insupport of his case:-i)In re. Rajah K.J.V. Naidu – AIR (33) 1946 Madras 235wherein it was held that 'The prima facie interpretation on theexpression 'the relief sought is with reference to any immovableproperty' in the proviso to Sec.7 (iv) (c) inserted in the Court-fees Act by Madras Act, 5 (V) of 1922, is that the dispute should,in some sense, relates to the title to immovable property. A suitfor a declaration that the plaintifs have certain customary andmamool rights viz., to graze cuttle, to take leaves of manure, tocut and take wood required for fuel and other building anddomestic purposes, etc., all free of charge from a forest areabelonging to another, not being a suit relating to any title toimmovable property falls under S.7 (iv) (e) and not under S.7 (iv)(c) and the Madras Proviso does not apply to such a suit.ii)(M. Shahul Hameed vs. Kanda Iyer and another) 1967 (2)MLJ 536 wherein it was held thus:-"Regarding the second contention of the learned counsel forthe petitioner that Section 25 (d) of the Court-fees Act has noapplication and that Section 25 (a) or (b) is only attracted inthe instant case, also appears to be untenable. It has beenrepeatedly held by our Court that Section 25 (d) or 25 (b) dealtwith rights in immovable property or tangible rights wheresubstantial questions as to the title of immovable property isinvolved. Section 25 (d) on the other hand would apply where no https://hcservices.ecourts.gov.in/hcservices/ investigation is necessary regarding the title of the property butthe adjudication relates to intangible rights concerning suchproperty".iii)(Venkatakrishna Reddiar and others vs. SwamikannuGoundar and others) AIR 1972 Madras 129 wherein this Court held inpara-6 and 7 thus:-"6.But having regard to the manner in which the expression'with reference to any immovable property' in the proviso toSection 7 (iv) (c) of the Court-Fees Act of 1870 has beeninterpreted by this Court, it is reasonable to infer that thelegislature in using the same expression in Section 25 (b) of thepresent Court-fees Act intended to give the same meaning to theexpression. In this view, the suit claim would clearly fall underSection 25 (d) of the Act.7.Section 7 of the Act provides for determination of themarket value. There is nothing in Section 7 of the Act fordetermining the market value of easements or profits a prendre, orother benefits arising out of land. There was therefore nojustification for the lower court in arbitrarily assessing themarket value of the suit claim in respect of the fishery and longgrass produce at 20 or 30 times the alleged annual income. Itshould be noted that the assessment of market value on the basisof capitalised value of the income is only one mode of valuation.Even if the case fell under Section 25 (b) of the Act, the learnedDistrict Munsif should have proceeded to take evidence andascertain market value of the suit claim as the question involvedjurisdiction of the Court. But in view of my finding that theclaim falls under Section 25 (d) of the Act, the Court-fee has tobe computed on the amount at which the relief sought is valued inthe plaint. The decision of the learned District Munsif prior toremand that the suit falls under Section 25 (d) of the MadrasCourt-Fees Act of 1955 and that the suit has been properly valuedfor the purpose of court-fee and jurisdiction is correct and it isrestored and the orders of the court below passed after remand areset aside and the suit is remanded to the trial court for disposalaccording to law."iv)(Lakshmi Ammal vs. K.M. Madhavakrishnan and others) AIR1978 Supreme Court 1607 wherein it was held in para-3 thus:-"3.In this particular case there is hardly any difficultyin holding that the plaintiff in para 14 of the plaint has clearlyalleged that she is in joint possession and is seeking partitionand separate possession of her half share in the suit propertiesas heir of deceased, Paramayee. Obviously, the court fee that ispayable is as she has claimed, namely under Section 37(2) whichcorresponds to Article 17(b) of the Central Act, which is thepredecessor legislation on the subject. We allow the appeal andsend the case back to the trial court and direct that Court toproceed with the suit expeditiously. We make it clear that ourdecision on the question of court fee does not have anyimplications on the merits, including the validity or otherwise ofthe Will. No costs. https://hcservices.ecourts.gov.in/hcservices/

6.The provisions of Tamil Nadu Court Fee and SuitValuations Act has to be understood in its natural and ordinarysense. For various classes of suits, a special mode of valuationis prescribed and it is the value arrived at in that mode, whichis the determining factor for calculation of court fees. In somecases, an artificial method of computation of value is prescribedand this is commonly called the statutory value. In some cases,where it is not easy to assess the value of subject matter of thesuit, the plaintiff has right to state it's value and this iscommonly called as notional value. In some other cases, the valueprescribes correspond to be the real value of the subject matter.7.Section 10 to 20 of the Court Fee Act contains detailedprovisions relating to the procedure to be followed fordetermining and calculating the court fee on plaints, memoranda ofappeal etc., It has been the obligation of the Courts to givedecision on the question of court fee tentatively when registeringthe plaint and definitely after hearing both sides.8.Sub-section 2 of Section 12 gives a new statutory rightto the defendant to raise objections to the adequacy of court feepaid by the plaintiff. The question of Court fee is primarily isa matter between the Government and the party liable to pay it.It should be noted that the defendants cannot be interested incollection of proper court fee and are interested in obstructingthe prosecution of the suit, if possible. The provisions of thisAct is applicable even where no question of jurisdiction isinvolved as in the case of objections raised to court fee in asuit in a Court of unlimited jurisdiction.9.It is settled Law that the allegations in the plaintalone are to be considered and not the statement made by thedefendants in the written statement, however, the Courts areentitled to determine the substance of the claim as distinguishedfrom the form in which the reliefs were cast by vigilant and readbetween the lines with a view to arrest the tendency of thelitigants to undervalue the relief. If there is any undervaluationof the subject matter of the suit. Section 12 (5) directs thatall questions as to value for the purpose of determining thejurisdiction of Courts arising on the written statement by adefendant shall be heard and decided before evidence is recordedaffecting the merits of the claim, which is a healthy provision. 10.The Honourable Supreme Court, in the decision reportedin (Meenakshisundaram Chettiar Vs. Venkatachalam Chettiar) AIR1979 Supreme Court 989 held that under Section 35 of the TamilNadu Court Fee and Suit Valuation Act, 1955, the plaintiff shouldgive a fair estimate of the amount for which he sues. If on thematerials available before it the Court is satisfied with thevalue of relief as estimated by the plaintiff in a suit isundervalued, the plaint is liable to be rejected under Rule 11 (b)of Order VII CPC. https://hcservices.ecourts.gov.in/hcservices/

11.NO doubt, from the above discussion relating to therelevant provisions of Tamil Nadu Court Fee and Suit Valuation Actand also Rule 11 (b) of Order VII CPC, it is clear that if therelief claimed is undervalued, the plaint is liable to berejected. 12.Section 25 of the Tamil Nadu Court Fee and SuitValuation Act runs as follows:-"25.Suits for declaration – In a suit for a declaratorydecree or order, whether with or without consequential relief notfalling under Section 26-(a)where the prayer is for a declaration and for possessionof the property to which the declaration relates, fee shall becomputed on the market value of the property or on rupees onethousand and five hundred, whichever is higher(b)where the prayer is for a declaration and forconsequential injunction and the relief sought is with referenceto any immovable property, fee shall be computed on one-half ofthe market value of the property or on rupees one thousand,whichever is higher.(c)where the prayer relates to the plaintiff's exclusiveright to use, sell, print or exhibit any mark, name, book,picture, design or other thing and is based on an infringement ofsuch exclusive right, fee shall be computed on the amount at whichthe relief sought is valued in the plaint or on rupees twothousand, whichever is higher(d)in other cases, whether the subject-matter of the suitis capable of valuation or not, fee shall be computed on theamount at which the relief sought is valued in the plaint or onrupees one thousand, whichever is higher."13.This section deals with suit for declaration and suitfor declaration and consequential relief. The position about thesuits for declaratory decree has been simplified by this Act.Section 25 makes no distinction between a case where aconsequential relief is claimed and a case where no consequentialrelief is claimed except where consequential relief is injunctionwith reference to immovable property.14.Suits for declaration are governed by Section 34 ofSpecial Relief Act 47 of 1963. When there is some legal obstacle,which has to be removed before consequential relief can begranted, it is incumbent upon the plaintiff to pray fordeclaration which will have the effect of removing the obstacle.15.Section 25 (d) of the Court Fee Act covers all cases ofdeclaration with or without consequential relief, not covered bysub-clauses (a), (b) and (c) and whether the subject matter is oris not capable of valuation. Where a suit falls under clause (d),discussion on the question whether the relief is capable ofvaluation is irrelevant. Clause (a) and (b) of Section 25 dealswith tangible rights and clause (d) deals with intangible rights. https://hcservices.ecourts.gov.in/hcservices/

16.In the decision reported in (M. Shahul Hameed vs. KandaIyer and another) 1967 (2) MLJ 536 mentioned supra, this Courtheld that when there is no adjudication regarding title, butadjudication regarding intangible right only, Section 25 (d) ofthe Court Fee Act is applicable.17.In this context, it is worthy to refer to the decisionof this Court reported in (Dr. Arthur Nathanial and another vs.Dr. R.P. Nathanial) 1962-II MLJ Volume 105 Page No.420 wherein itwas held thus:-"This civil Revision Petition arises from the finding of theDistrict Munsif of Vellore in O.S. No. 297 of 1959 holding thatthe suit had been properly valued under Section 25 (d) of theMadras Court Fees and Suits Valuation Act of 1955. The defendantis the petitioner. The respondent instituted a suit fordeclaration of his right to the hospital and dispensary run underthe name and style of "The Popular Pharmacy and Nursing Home" andfor an injunction restraining the petitioners from interferingwith his possession of the hospital and practice therein or usingthe medicines and setting up a rival practice to his detriment.The petitioners are the son and daughter-in-law of the respondent.It is admitted that the premises of the pharmacy which is situatein No.29, Filter Bed Road, Vellore Town does not belong to eitherof the parties. The right claimed in the plaint is therefore anintangible one relating to the pharmacy and nursing home i.e., thebusiness or profession carried on by the petitioner. It isevident that Section 25 (a) of the Court Fees Act cannot apply tothe case as it relates to tangible property. Clause (d) of thatsection will govern the case whether the subject matter of thesuit is capable of valuation or not. The learned District Munsifhas held that it is only the later clause that will apply and I amof opinion that is correct. The Civil Revision Petition is dismissed with costs.In my considered view, the above said decision squarelyapplicable to the facts of the instant case.18.The Honourable Supreme Court, in the decision reportedin (Lakshmi Ammal vs. K.M. Madhavakrishnan and others) AIR 1978Supreme Court 1607 held in para-2 thus:-"2.It is unfortunate that long years have been spent by thecourts below on a combat between two parties on the question ofcourt-fee, leaving the real issues to be fought between them tocome up leisurely. Two things have to be made clear. Courtsshould be anxious to grapple with the real issues and not spendtheir energies on peripheral ones. Secondly, court-fee, if itseriously restricts the rights of a person to seek his remedies inCourts of justice, should be strictly construed. After all accessto justice is the basis of the legal system. In that view, wherethere is a doubt, reasonable, of course, the benefit must go tohim who says that the lesser court fee alone be paid. https://hcservices.ecourts.gov.in/hcservices/ In the above case, the Honourable Supreme Court held thataccess to justice is the basis of the legal system. Where there isa doubt, if it is reasonable, the benefit must go him who saysthat the lesser court fee alone be paid.19.In the case on hand, a suit for declaration ofadministration of the society has been sought for by theplaintiffs and for consequential relief that the defendants haveno right to interfere with the same. The trial court has foundthat the said case falls within Section 25 (d) of the Tamil NaduCourt Fee and Suit Valuations Act, 1955. The plaintiffs are alsoin possession of the property or certain portion of the property.It is not in dispute that the property, which is the subjectmatter of the suit belonged only to the society, but not belongedto either of the parties. Hence, the right claimed in the plaintis an intangible one, relating to administration of the property.Once in a suit, a prayer for declaration or any otherconsequential relief is sought for in respect of intangible right,it will be governed by clause (d) and it does not attract clause(a) or (b) or (c) of Section 25. 20.In this case, no investigation is necessary regardingthe title of the property but adjudication relating to intangibleright is required. The trial court has rightly held that clause(d) of Section 25 of the Court Fee Act is applicable to thereliefs (b) and (c) of the suit. 21.Hence, I confirm the judgment and decree of the trialcourt. The Civil Revision Petition is dismissed without costs.Connected CMP is closed. Considering that the suit is of the year1997, I direct the trial court to dispose of the suit on merits,uninfluenced by any of the observations made by this Court, withina period of three months from the date of receipt of a copy ofthis order.rshSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Registrar,City Civil CourtHigh Court CampusMadras 600 104+ 1 cc to Mr.N.Raja, Advocate SR No.8419PV(CO)Order inSR/28.2.2005CRP (PD) No.2857 of 2003.