Civil Revision Application No. 1143 of 1999

9th June, 2001

Petitioner Counsel: Shri. GIRISH S. GODBOLE
Respondent Counsel: Shri. P.B. SHAH, Shri. M.R. DESHPANDE

Cases Cited:
Vimala Ammal Vs. C. Suseela, AIR 1991 Madras 209 [Para 13]
Dwarka Prasad Singh Vs. Harikant Prasad Singh, AIR 1973 SC 655 [Para 13]
Durga Prasad Vs. Deep Chand, AIR 1954 SC 75 [Para 13]

JUDGMENT

JUDGMENT :- INTRODUCTION

The often raised familiar question of law placed before me by way of this Revision, relates to the payment of court fees under the Bombay Court Fees Act, 1959 ("the Act" for short) in a suit seeking specific performance of contract of sale coupled with relief of declaration that sale in favour of subsequent transferee is bad, illegal and void.

BACKGROUND FACTS

The background facts are as under :

2. The plaintiff on 28.01.1999 filed the suit being Regular Civil Suit No.8 of 1999 for specific performance of contract of sale dated 28.05.1982 on the allegations that the original defendant No.2/ Respondent No.2 herein - owner of the suit property having executed an agreement of sale in favour of the Plaintiff not only failed to execute sale deed in favour of the plaintiff but sold the said suit property to the original defendant Nos. 2 to 5 by Registered sale deed dated 06.07.1989 for a consideration of Rs.90,000/- and delivered possession thereof.

3. It was further alleged that part of the suit property admeasuring an area of 19 ares was purchased by the original defendant No.6 (present petitioner) for a consideration of Rs.4,80,000/-, on 08.01.1998; out of which whereas the original defendant Nos.13 and 14 purchased area of about 6.3 ares for the consideration of Rs. 2,11,000/-, on 27.04.1998.

4. The plaintiff filed a suit against his vendor and also arrayed subsequent transferees as co-defendants and claimed specific performance of the contract of the agreement of sale dated 28.05.1982 and prayed for cancellation of sale deeds obtained by the subsequent transferees viz. present petitioner as also original defendants/Respondent Nos. 13 & 14 and by way of alternate relief prayed for compensation equivalent to the market value of the suit property.

5. On being noticed, the defendants appeared and raised an objection to the pecuniary jurisdiction of the Civil Judge, Junior Division to entertain and try the said suit, on the ground that the suit claim has been grossly undervalued, and that the proper court fees has not been paid. The trial court framed following preliminary issues:

(i) Whether the suit claim is properly valued?

(ii) Whether proper court fees is paid thereon ? and

(iii) Whether the trial court has a pecuniary jurisdiction to entertain and try the suit ?

The trial court held that the suit claim was properly valued. The court fee paid thereon was proper. There was no undervaluation of suit claim. As a sequitur of these findings, the trial court recorded further finding that it had a jurisdiction to entertain and try the suit claim. The trial court was of the view that the substantive suit was for specific performance of the contract dated 28.05.1982 and the reliefs seeking declaration of illegality with regard to subsequent transfers and damages were but they were claimed by way of ancillary reliefs. Thus the trial court vide its order dated 06.09.1999 rejected the objections raised by the defendant No.6. This order is the subject matter of challenge in the present Revision Petition.

6. In order to decide the question of valuation of the suit, it is necessary to examine the plaint allegations and the relief claimed in the suit. The sum and substance of the allegations and averments made by the plaintiff in the plaint are that the plaintiff is entitled to purchase the suit property on the basis of the agreement of sale dated 28.05.1982 and that after execution of the agreement of sale in favour of the plaintiff, the suit property was sold by the Respondent No.2 - original owner to the Respondent Nos.3 to 6, and thereafter the part of suit property was further sold by the subsequent transferee i.e. defendant No.6 (present revision petitioner) to Respondent Nos. 13 & 14 and, consequently, the declaration of nullity of the sale deed was sought in the suit. The plaintiff had, therefore, prayed for the reliefs in the following words :

i. The Defendant No.1 may be directed to execute a sale Deed of the suit land in favour of the plaintiff by accepting the remaining consideration and be further directed to hand over the possession for the suit land to the plaintiff.

ii. It may be held and declared that all the sale transactions described herein above executed by the Defendants amongst them are illegal and the said Sale Deeds are void and it be further declared that the Defendants have got no right of ownership by virtue of the said Sale Deeds and the physical possession of the suit land may be handed over from them to the plaintiff.

iii. If there is any difficulty in executing the Sale Deed, the Plaintiff may be awarded compensation from Defendant according to the prevailing market rate.

7. On the basis of the aforesaid averments, the suit was valued at Rs. 24,000/- which was original consideration agreed between the parties and accordingly, the court fees was paid in the sum of Rs.1750/-, as per Article 7 of Schedule I of the Act.

RIVAL CONTENTIONS

8. The learned Counsel appearing for the petitioner contends that the trial court has no pecuniary jurisdiction to entertain and try the suit as the plaint contains a prayer for declaration that the sale deed executed by the original defendant No.1 in favour of the Respondent Nos. 2 to 5 and the subsequent sale deeds executed in favour of the defendant Nos. 6,13 and 14 are bad, illegal and void and also contains a prayer for the possession of the suit property, the value of which, as on the date of suit was more than the pecuniary jurisdiction of the trial court. He urged that the relief was required to be valued at the price equivalent to the market price of the suit property and, therefore, the valuation of the suit claim made by the plaintiff was clearly incorrect. It was grossly undervalued.

The learned Counsel for the petitioner further contended that considering the third prayer ; wherein the plaintiff had prayed for damages at the market value of the property, the market value of the suit property was much more than the pecuniary jurisdiction of the trial court. The suit was, therefore, beyond the pecuniary jurisdiction of the trial court. He further contended that the suit claim was required to be valued as per the second proviso to Section 6 (iv)(a) of the Act since declaration of the invalidity of the sale deeds, in favour of the subsequent transferees, was sought. The relief of declaration has to be valued as per the face value of the sale deed. Thus, in his submission, considering the provisions of Court Fees Act one fourth of ad valorem fee was leviable on the suit claim, which in any event, was beyond the pecuniary jurisdiction of the trial court and, therefore, it was contended at the cost of repetition that the suit was grossly undervalued.

9. In reply, the learned Counsel appearing for the contesting Respondent viz. Respondent No.1 (original plaintiff) contended, as he did before the trial court, that the main relief in the suit was not the relief of declaration, but enforcement of right of the plaintiff to claim specific performance of sale based on the agreement dated 28.05.1982. In his submission, the substantive relief in the suit being for specific performance of contract, the suit was clearly covered by Article 7 of Schedule I of the Court Fees Act and accordingly, the suit was rightly valued and proper court fee thereon was paid. He further contended that the trial court, having taken into account all these aspects of the matter, reached to a proper conclusion and, therefore, in revisional Jurisdiction, the impugned order should not be interfered with.

STATUTORY PROVISIONS

10. In order to decide the question raised in this Revision Petition relating to the valuation of the suit claim, it is necessary to turn to the relevant provisions of the Bombay Court Fees Act, 1959.

6(i) In suits for money (including suits for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically) according to the amount claimed.

(ii).......................

(iii)......................

(iv)(a) In suits for declaration to obtain adjudication against recovery of money from the plaintiff, whether the recovery is as land revenue or arrears of land revenue or tax or duty or cess or fee or fine or penalty or under any decree or order of a court or any certificate or award other than under the Arbitration Act, 1940, or in any other manner - one fourth of ad valorem fee leviable on the amount sought to be recovered according to the scale prescribed under Article 1 of Schedule I with minimum fee of thirty rupees.

Provided that when in addition any consequential relief other than possession is sought the amount of fee shall be one-half of ad valorem fee on the amount sought to be recovered.

Provided further that when the consequential reliefs also sought include a relief for possession, the amount of fee shall be the full ad velorem fee on the amount sought to be recovered.

(iv)(b) In suits for declaration similar to those falling under sub-paragraph (a) in respect of movable property - one fourth of advalorem fee leviable on the value of the moveable property subject to the minimum fee as under sub-paragraph (a) :provided that when in addition any consequential relief other than possession is sought, the amount of fee shall be one-half of ad valorem fee leviable on the value of such property.

Provided further that when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee laviable on such value.

6(iv)(ha) In suits for declaration that any sale, or contract for sale or termination of contract for sale, of any moveable or immovable property is void one half of ad valorem fee leviable on the value of the property.

11. Further, Article 7 of Schedule I of the said Act covers the suits such as present one, which reads as under :

Article 7 Schedule I

7. Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as plaint or is described as the mode of obtaining the relief as aforesaid. :

A fee on the amount of the monetary gain, or loss to be prevented, according to the scale prescribed under Article 1.

(Emphasis supplied)

CONSIDERATION

12. Having heard the parties at length, it is necessary to note that in order to decide the question relating to the pecuniary jurisdiction of the court, what is required to be seen is the allegations made, and relief claimed in the plaint. The allegations made in the plaint, if perused, it will be clear that the suit in question is nothing but a suit seeking substantive relief of specific performance of contract. The declaration of the invalidity of the sale deed in favour of the subsequent transferees, i.e. the relief against defendant Nos. 6,13 and 14 is nothing but an ancillary relief. If the plaintiff is able to establish his case of the specific performance against the defendant No.1 (Respondent No.1) then it would be enough, if the defendant Nos. 6,13 and 14 are joined as parties, to the suit because the only decree to be passed in the suit for specific performance against the subsequent transferees would be to ask them to join in conveyance with the defendant No.1 - owner. In that sense, it was not necessary at all for the plaintiff to ask for any such declaration as he did. It would have been enough for the plaintiff to have joined them as co-defendants so as to contend that the subsequent sale deeds were not binding on him. The argument of the learned Counsel appearing for the petitioner that the relief of declaration prayed for against the defendant Nos. 6,13 and 14 was required to be valued in terms of money has, therefore, to be rejected.

13. The above legal position is no more res integra and is laid down in Vimala Ammal Vs. C. Suseela and others, reported in AIR 1991 Madaras 209, Dwarka Prasad Singh and others Vs. Harikant Prasad Singh and others, reported in AIR 1973 SC 655 and Durga Prasad and another Vs. Deep Chand and others, reported in A.I.R. 1954 SC 75. In all these cases, it has been held that when an action is brought for specific performance, the subsequent transferee would be a necessary party to the suit as the only decree that is required to be passed in such a suit (for specific performance) is against the original vendor. The subsequent transferees are required to be directed to join in the sale which is directed by a decree for specific performance of contract. It has been held that the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him, to the prior transferee. He does not join in any special covenants made between the prior transferee and his vendor, all that he does is to pass on his title to the prior transferee. This law was laid down by the Supreme Court firstly, in Durga Prasad's case (cited supra), would dispense with the necessity of obtaining any specific declaration against the subsequent transferee. It would not, therefore, be necessary at all to claim a declaration as such. This law was again reiterated in Dwarka Prasad Singh's case (AIR 1973 SC 655) and subsequently followed in Vimala Ammal's case (AIR 1991 Madras 209). Thus it was not at all necessary for plaintiff to claim declaration of invalidity of transfer of property made in favour of the subsequent transferees.

14. The learned Counsel appearing for the petitioner tried to urge that it was essential for the plaintiff to claim a declaration of invalidity in favour of the subsequent transferees. Said argument has no substance. At this juncture, it is necessary to notice clause (b) of sub-section (1) of Section 19 of the Specific Relief Act which starts with the following words :

"19(1) Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against.

(b) any other person claiming under him by a title............."

The Section speaks of the enforcement only. It does not speak in terms of a decree being claimed against such persons. As I have already pointed out hereinabove, that it is an established law that for enforcing the decree, all that is necessary is to implead such person as a party and the decree is required to direct such person to be a party to conveyance to be executed by the original vendor in favour of the vendee. It will have, therefore, to be held that there was no necessity of claiming any declaratory relief as against the defendant No.6 (present petitioner) and defendant Nos. 13 and 14. Consequently, there was no question of payment of court fees in respect of said relief. The said relief claimed was superficial and unnecessary in the facts and circumstances of the present case.

15. Now, it is necessary to examine the correctness of the suit claim valued by the plaintiff. If the scheme laid down for the computation of fees payable in suits covered by several sub-sections of Section 6 is considered, it would be clear that, in respect of suits falling under sub section (xi) (a) a departure has been made and liberty has been given to the plaintiff to value his suit claim for the purposes of court fees according to the amount of the consideration. I am, therefore, of the opinion that the suit claim has been rightly valued under Section 6(xi) treating it as falling under Article 7 of Schedule I of the Court Fees Act. The substantive relief claimed in the suit is not a relief of declaration or the alternate relief relating to the damages, but is of specific performance of contract based on agreement of sale as such the suit claim was properly valued. It was not necessary to value it under Section 6(i) or (iv)(a) or (iv)(b) of the Act.

16. What would be the value for the purpose of jurisdiction in such suits is another question which often arises for decision. This question has to be decided reading Section 6(xi) of the Act along with Section 8 of the Suits Valuation Act. This later Section provides that, where in any suit other than that referred to in Court Fees Act, Section 6, paras (v), (vi) and (x) and clause (d) of paragraph (xi), court fees are payable ad valorem under the Court Fees Act, the value determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. In other words, so far as suits, falling in Section 6(xi) (a) are concerned, Section 8 of the Suits Valuation Act provides that the value as determinable for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provision of Section 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court fees and that is natural enough. The computation of court fees in the suits falling under Section 6(xi) (a) of the Act is as per the amount of consideration. Thus the consideration of the transaction determines the value of the jurisdiction. The value of court fee and the value of the jurisdiction must, no doubt, be the same in such cases. Thus from the value of consideration the value of the jurisdiction is to be determined. The result is that the amount at which the plaintiff has valued the relief sought for the purpose of court fee that determines the value for jurisdiction of the suit and not a vice versa. The trial court has, therefore, rightly concluded that the suit claim has been properly valued and the suit was well within its jurisdiction.

17. In view of the conclusion reached hereinabove, there is no alternative but to dismiss the Revision. Accordingly the same is dismissed in liminae with no order as to costs.

Revision dismissed.