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PETITIONER: SRIRATNAVARAMARAJA

       Vs.

RESPONDENT: SMT.  VIMLA.

DATE OF JUDGMENT: 27/02/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. KAPUR, J.L. HIDAYATULLAH, M.

CITATION:  1961 AIR 1299            1961 SCR  (3)1015  CITATOR INFO :  F          1973 SC2384  (3)

ACT:  Court  Fees-Question  of  adequacy-If could  be  raised  by defendant  in appeal Madras Court Fees and  Suits  Valuation Act,  1955  (Mad.  14  of  1955),  S.  12(2)-Code  of  Civil Procedure (Act V of 1908), s.115.

HEADNOTE: The question was whether the defendant was entitled to raise a  grievance and contest the valuation of the properties  in dispute  as  if  it  were a  matter  in  issue  between  the plaintiff  and  himself and could seek to  invoke  the  High Court  in  its  revisional jurisdiction  against  the  order adjudging ’court fees payable on the plaint. Held, that the Court Fees Act is enacted to collect  revenue and  not to be used as a technical weapon by  the  defendant for obstructing the progress of the suit by approaching  the High Court in its revisional jurisdiction against the  order determining and adjudging court fees payable on the plaint. That section 12(2) of the madras Court Fees Act, 1955,  only enabled  the defendant to assist the court in arriving at  a just  decision on the question of court fees payable on  the plaint. That in the instant case the High Court grievously erred  in entertaining  revision application on the question of  court fees  at the instance of the defendant when no  question  of jurisdiction was involved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 624 of 1960. Appeal  by special leave from the judgment and  order  dated May  30,  1960 of the Mysore High Court  in  Civil  Revision Petition No. 1098 of 1959. K.   R. Karanth and R. Gopalakrishnan, for the appellant. A.   V. Viswanatha Sastri, R. Ganapathy Iyer and G.   Gopalakrishnan, for the respondent. B.   R.  L. Iyengar and T. M. Sen, for the State  of  Mysore (On Notice issued by the Court).

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1961.   February  27.   The  Judgment,  of  the  Court   was delivered by SHAH,   J.-Smt.   Vimla-hereinafter  referred  to   as   the plaintiff-filed  suit  No. 73 of 1956 in the  court  of  the Subordinate Judge, South Kanara, for a decree for 1016 possession  of  lands, buildings, house-sites  described  in sch.  A and movable properties described in sch.  B and  for mesne profits in respect of properties described in sch.   A and  for  a  decree for possession and  management  and  for account   of  the  properties  described  in  sch.   C   and institutions  alleged  to be the  private  family  religious endowments  in  sch.  D. The plaintiff claimed that  on  the death  of her father Shri Dharmasthala Manjayya  Heggade  on August  31, 1955, she became entitled to the  properties  in suit but the defendant wrongfully possessed himself of those properties.  The plaintiff valued the properties in schs.  C and  D  under  s.  28 of the  Madras  Court-fees  and  Suits Valuation Act, 1955 at Rs. 21,000/- and paid a court-fee  of Rs. 275/-.  She valued the lands in schedule A for  purposes of  jurisdiction at 30 times the assessment  and  separately valued the buildings and paid court-fee on that footing.  On June 28, 1956, the Subordinate Judge ordered on an objection raised by his office that the amount of Rs. 34,577/- paid as court-fee  by the plaintiff was adequate.  Then  followed  a course  of proceedings for which not many precedents may  be found.   On  September  9, 1950,  the  defendant  filed  his written  statement  raising an objection inter alia  to  the valuation  of  the  properties in  suit  and  the  court-fee exigible on the claim.  The trial court then raised an issue about the adequacy of the court-fee, paid by the  plaintiff. On  February  13,  1957,  the  defendant  applied  for   the appointment of a Commissioner to value the properties.   The court dismissed the application and declared that the court- fee  paid  was adequate.  In Revision Petition 272  of  1957 preferred  by the defendant to the High Court of  Judicature at Bangalore, the order passed by the Subordinate Judge  was set  aside  and it was directed that the trial  court  do  " ascertain the value of the properties for purposes of court- fee in accordance with law after giving full opportunity  to the  parties and if need be by appointing a Commissioner  to ascertain  the  present market value of  the  suit  Schedule properties and decide the issue afresh on merits."  Pursuart to this direction, a Commissioner was appointed by 1017 the  Subordinate  Judge.   The  Commissioner  submitted  his report  as to valuation of the properties.  Objections  were raised by the defendant to that report and a further  report was submitted by the Commissioner.  On the direction of  the Subordinate  Judge, a supplemental report was  submitted  by the   Commissioner.    After  hearing   the   parties,   the Subordinate Judge held that the properties described in sch. D were " extra commercial " and fixed court-fee was exigible in  respect of the claim for possession thereof,  that  pro- perties  described in sch.  D were " trust properties "  and s.  28  of  the Madras Court-fees and  Suits  Valuation  Act applied  thereto  as  the dispute related to  the  right  of management  between persons claiming to be  rival  trustees, that  the  houses built on revenue paying lands  had  to  be valued  according to their market value and not at 30  times the land assessment and that the lands in sch.  A were worth Rs. 7,74,665/- and the house-sites were worth Rs.  27,625/-. The  plaintiff paid the additional court-fee as directed  by the  court,.   Against the order passed by  the  Subordinate Judge,  the plaintiff and the defendant applied by  separate

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petitions in revision to the High Court of Mysore.  The High Court   heard   the  Advocate-General  of  the   State   and substantially confirmed the order passed by the  Subordinate Judge  except as to an institution described as "  Nelliyadi Beedu  ",  in respect of which the High Court  directed  the trial court to determine whether the institution was " extra commercial " after giving an opportunity to both parties  to put  forth  their contentions and to lead evidence  in  that behalf.   Against that order of the High Court, this  appeal has been preferred by the defendant with special leave under Art. 136 of the Constitution. The  Court-fees Act was enacted to collect revenue  for  the benefit of the State and not to arm a contesting party  with a weapon of defence to obstruct the trial of an action.   By recognising  that the defendant was entitled to contest  the valuation  of  the  properties in dispute as if  it  were  a matter  in  issue  between  him and  the  plaintiff  and  by entertaining  petitions  preferred by the defendant  to  the High Court in exercise of 1018 its  revisional  jurisdiction against  the  order  adjudging court-fee  payable on the plaint, all progress in  the  suit for  the  trial  of  the dispute  on  the  merits  has  been effectively  frustrated for nearly five years.  We  fail  to appreciate what grievance the defendant can make by  seeking to  invoke the revisional jurisdiction of the High Court  on the question whether the plaintiff has paid adequate  court- fee  on his plaint.  Whether proper court-fee is paid  on  a plaint is primarily a question between the plaintiff and the State.   How  by an order relating to the  adequacy  of  the court-fee  paid  by the plaintiff, the  defendant  may  feel aggrieved,  it  is  difficult  to  appreciate.   Again,  the jurisdiction  in revision exercised by the High Court  under s.  1  15  of  the  Code  of  Civil  Procedure  is  strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate  Court or assumption of jurisdiction  which  the court  does not possess or on the ground that the court  has acted  illegally  or  with  material  irregularity  in   the exercise of its jurisdiction.  The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior  court by appeal or in revision against the order adjudging payment of  court-fee  payable on the plaint.  But counsel  for  the defendant says that by Act 14 of 1955 enacted by the  Madras Legislature  which  applied  to the suit  in  question,  the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court-fee  has been paid by the plaintiff, but also to move the High  Court in revision if an order contrary to his submission is passed by  the  court.  Reliance in support of that  contention  is placed upon sub-s. (2) of s.  12.  That sub-section,  in  so far as it is material, provides:               " Any defendant may, by his written  statement               filed before the first hearing of the suit  or               before  evidence is recorded on the merits  of               the claim...... plead that the  subject-matter               of  the suit has not been properly  valued  or               that  the  fee paid is  not  sufficient.   All               questions arising on such pleas shall               1019               be  heard  and  decided  before  evidence   is               recorded  affecting  such  defendant,  on  the               merits  of  the claim.  If the  court  decides               that  the subject-matter of the suit  has  not

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             been  properly valued or that the fee paid  is               not  sufficient,  the court shall fix  a  date               before  which the plaint shall be  amended  in               accordance  with the court’s decision and  the               deficit fee shall be paid.........." But  this  section  only enables the defendant  to  raise  a contention  as to the proper court-fee payable on  a  plaint and  to assist the court in arriving at a just  decision  on that  question.  Our attention has not been invited  to  any provision of the Madras Court-fees Act or any other  statute which  enables  the  defendant to move  the  High  Court  in revision against the decision of the court of first instance on the matter of court-fee payable on a plaint.  The Act, it is true by s. 19, provides that for the purpose of  deciding whether  the subject-matter of the suit or other  proceeding has  been  properly  valued  or  whether  the  fee  paid  is sufficient, the court may hold such enquiry as it  considers proper and issue a commission to any other person  directing him  to  make such local or other investigation  as  may  be necessary   and   report  thereon.   The  anxiety   of   the Legislature  to collect court-fee due from the  litigant  is manifest  from the detailed provisions made in ch.   III  of the Act, but those provisions do not arm the defendant  with a  weapon  of technicality to obstruct the progress  of  the suit  by approaching the High Court in revision, against  an order  determining the court-fee payable.  In our view,  the High   Court  grievously  erred  in  entertaining   revision applications  on questions of court-fee at the  instance  of the  defend.  ant,  when no  question  of  jurisdiction  was involved. The appeal therefore fails and is dismissed with costs. Appeal dismissed. 130 1020