Writ Petition No.6225 of 2007

23rd March, 2009

Petitioner Counsel: Shri. TAKTE,Shri. V. D. SALUNKE
Respondent Counsel: Shri. V. M. YELNOORKAR

Cases Cited:
Durga Prasad Vs. Deep Chand, AIR 1954 SC 75 [Para 6]
Ramesh Chandra Chandiok Vs. Chuni Lal Sabharwal, AIR 1971 SC 1238 [Para 6]
Dilip Bastimal Jain Vs. Baban Bhanudas Kamble, 2001(3) ALL MR 338=2001(3) Mh.L.J. 730 [Para 7]

JUDGMENT

JUDGMENT :- Petitioner - original defendant no.2 is raising exception to the order passed below exh.74 in Regular Civil Appeal No.20/2004 by the District Judge - 1, Nilanga on 13-9-2007.

2. Respondent No.1 - original plaintiff instituted the suit claiming specific performance of agreement as well as recovery of possession of the land bearing gat nos.287 and 297 situate at village Jajnoor, Tq.-Nilanga being Special Civil Suit No.181/98. Plaintiff in the suit also claimed relief to the effect that the registered sale-deeds bearing nos.1508 and 1509 executed on 15-9-1997 be adjudged as ineffective and inoperative against the plaintiff. Plaintiff stated in the plaint that the property in dispute has been subsequently transferred by original defendant No.1 in favour of other defendants. Apart from claiming relief in respect of specific performance of agreement, the plaintiff has also sought for possession of the disputed property as well as sought declaration that the subsequent sale-deeds be declared as ineffective and inoperative as against the plaintiff. Plaintiff being a lady, as per the policy of the State Government in respect of remittance of court fees by a lady litigant, prevailing at the relevant time, the plaintiff was not required to pay court fees. However, after proper contest the suit presented by the plaintiff came to be dismissed. As such, she was required to file Regular Civil Appeal No.20/2004 before the Court of Additional District Judge, Nilanga, which is pending. In the pending suit, original defendant no.2 presented an application at Exh.72 raising objection in respect of payment of court fees by the original plaintiff. It was contended that by virtue of subsequent notification dt. 23-3-2000, the plaintiff is liable to pay the court fees alongwith appeal as the dispute in question does not relate to matrimonial matters as contemplated by the amended notification. Another application was presented by the plaintiff at Exh.73 claiming exemption in respect of payment of court fees. Both the applications came to be decided by the appellate court on 21-7-2007. Application presented by defendant No.2/petitioner herein was allowed and the application tendered by original plaintiff came to be dismissed. In view of the order passed by the appellate court on 21-7-2007, plaintiff was required to pay court fees on the suit claim. Plaintiff, however, presented an application Exh.74 claiming revision in respect of payment of court fees. It is contended in the application by plaintiff that the suit presented by her is essentially for specific performance of agreement as well as for recovery of possession. Although the relief claimed is in respect of declaration of the sale-deeds which have been executed after entering into impugned transaction with the plaintiff, the plaintiff need not pay ad valorem court fees and the court fees that would be required to be computed shall be in accordance with the provisions of section 6(j) and not as per provisions of section 6(ha). Plaintiff as such stated that she would be liable to pay court fees to the tune of Rs.6,978/- and necessary modification in the earlier order was sought for by the plaintiff.

3. Application tendered by plaintiff was objected by the respondents herein contending that the total court fees that would be leviable considering the claim raised by the plaintiff would be Rs.16,580/-. It is also contended that the subject matter of the appeal would exceed the pecuniary limits of the jurisdiction of the court which is upto Rs.2,00,000/-. Hence, the first appellate court does not have jurisdiction to decide the appeal. It is also prayed to dismiss the appeal for want of payment of requisite court fees. The learned District Judge - 1, Nilanga after hearing the arguments advanced by respective counsel allowed the application presented by plaintiff/respondent No.1 herein and directed the original plaintiff/appellant before the first appellate court to pay court fees considering the valuation of the appeal to be Rs.1,52,000/- as well as further court fees in respect of relief of possession. Order passed by the District Judge -1, Nilanga in pending appeal is subjected to challenge in this petition.

4. I have perused the applications as well as order passed by the first appellate court. I have also heard arguments advanced by respective counsel. So far as issue in respect of exemption in payment of court fees at appellate stage is concerned, the said issue is not raised by respondent No.1/original plaintiff before me. Therefore, I do not deem it necessary to consider the issue. Although at the time of presentation of the suit bearing Special Civil Suit No.181/98, as per the policy prevailing then, the plaintiff was entitled for securing exemption in respect of payment of court fees. The policy has undergone change and in view of subsequent notification issued by the State Government, exemption in respect of payment of court fees payable by the woman litigant is restricted to matrimonial dispute. Although an analogy can be drawn on the footings that appeal is continuation of the suit and exemption which is available at the time of presentation of the suit can also be said to be available at the appellate stage, however, as the relevant orders passed by the appellate court in that regard are not subjected to challenge in this petition, therefore, this court refrains to go into the issue and offer any comment in that regard.

5. On perusal of the plaint it appears that the substantive relief claimed by the plaintiff is in respect of specific performance of agreement. Contents of the plaint reveal that the total consideration in respect of transaction was settled at Rs.1,50,000/- out of which the plaintiff has tendered an amount of Rs.40,000/- and the balance amount of Rs.1,10,000/- was to be paid at the time of execution of the sale-deed. Thus, he suit is valued for Rs.1,50,000/- for the purpose of jurisdiction and court fees. Although the plaintiff has sought relief in respect of declaration that the sale-deeds executed on 15-5-1997 be declared ineffective and inoperative as against the rights of the plaintiff, the said relief claimed is ancillary. Although it is contended by the petitioner herein that the plaintiff shall be required to pay ad valorem court fees considering the valuation of the subsequent transactions to be Rs.1,22,000/- and Rs.55,000/- respectively, said contention cannot be accepted. The plaintiff in turn claims that the provisions of section 6(j) are attracted and therefore, court fees is required to be computed accordingly. Provisions of sections 6(j) and 6(ha) are quoted as below :-

"6. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :-

(j) In suits where declaration is sought, with or without injunction or other consequential relief and the subject - matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act (ad valorem fee payable, as if the amount or value of the subject matter was [one thousand rupees;])

In all suits under clauses (a) to (i), the plaintiff shall state the amount at which he values the relief sought, with the reasons for the valuation;

(ha) In suits for declaration that any sale, for contract for sale or termination of contract for sale, of any moveable or immoveable property is void [one-half] of ad valorem fee leviable on the value of the property;"

It cannot be said that the subject matter in dispute is not susceptible of monetary evaluation and as such, the provisions of section 6(j) of the Act would not apply. Contention of the petitioner/original defendant No.2 is that as the suit is in respect of declaration of sale transaction being void, the plaintiff is required to pay half of the ad valorem fees leviable on the valuation of property. However, in the instant matter, it is to be taken note of that the main relief claimed in the plaint is in respect of specific performance of agreement. In a suit presented by plaintiff claiming specific performance of agreement, it is essentially a claim between the vendor and vendee and the subsequent transferee is required to be impleaded only for the purpose of issuing direction to him to join the vendor in executing the registered document. It is not essential for the plaintiff to claim declaration in respect of subsequent transactions in a suit for specific performance of agreement.

6. Section 19(a) of the Specific Relief act provides that the specific performance of the contract may be enforced against either party thereto whereas under section 19(b) relief can be sought against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. In the instant matter the subsequent purchasers are joined as party defendants for securing relief in respect of specific performance. It is laid down by the Apex court in the matter of Durga Prasad and another Vs. Deep Chand and others reported in AIR 1954 SC 75 that while interpreting the provisions of section 27 of the Old Act (Act of 1877) which is comparable with the provisions of section 19 of the Act of 1963 to the effect that the proper form of decree to be passed is to direct specific performance of contract between the vendor and transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the proper transferee. He does not join in any special covenants made between the prior transferee. The view expressed by the Apex court has been re-affirmed in the matter of Ramesh Chandra Chandiok Vs. Chuni Lal Sabharwal reported in AIR 1971 SC 1238. In this view of the matter, subsequent purchaser is required to be joined as party to the suit only for the purpose of directing him to join the vendor in executing the sale-deed as per the directions of the court in favour of the vendee.

7. Reliance can also be placed on a judgment reported in 2001(3) Mh.L.J. 730 : 2001(3) ALL MR 338 in the matter of Dilip Bastimal Jain Vs. Baban Bhanudas Kamble. This court in similar set of facts as in the instant petition has considered the issue. Petitioner in the reported matter has approached the court raising objection to the valuation of the suit on the similar grounds to the effect that although the consideration amount in respect of subsequent sale in the matter is more than Rs.2,00,000/- which is beyond pecuniary jurisdiction of the trial court to entertain the suit, the court has asserted jurisdiction. The reported matter arises out of a suit claiming specific performance of contract. Consideration prescribed was Rs.90,000/- whereas properties in dispute were subsequently transferred for consideration of Rs.4,80,000/- and Rs.2,11,000/- respectively. In a suit presented against the vendor, the subsequent transferees were arrayed as co-defendants who raise objection to the jurisdiction of the court as well as in respect of valuation of the suit. It was contended by the subsequent purchasers in the reported matter that the property in dispute has been purchased by them for amount more than Rs.4,00,000/- and Rs.2,00,000/- respectively and further that there is declaration sought for in respect of sale transaction effected in favour of co-defendants and as such, plaintiff shall be required to pay the court fees considering the subsequent sales as well as suit claim is also objected on the ground that the court dealing with the matter does not have pecuniary jurisdiction to entertain the suit. While dealing with the objection, the learned Single Judge of this court expressed opinion that in accordance with provisions of section 19(b) of the Specific Relief Act, subsequent transferee is impleaded to the suit only for the purpose of issuing direction against him for his joining with the transferor for the purpose of execution of a conveyance so that valid title can pass in favour of plaintiff in the event of passing of decree in his favour. Although declaratory relief is claimed it is merely superficial and no court fees is required to be paid on such claim. The learned Single Judge has observed in paragraph No.14 of the judgment thus :-

"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."

8. Taking into consideration the ratio laid down by this court in the matter cited supra, in the instant matter also it can be said that joining of co-defendant/subsequent purchaser to the suit is merely for securing relief of specific performance as contemplated by section 19(b) of the Specific Relief Act. Although the declaratory relief is claimed against the subsequent purchasers the said claim is superficial and no court fees is required to be paid in that regard. Objection raised by petitioner herein therefore does not call for any consideration. As stated above, neither the provisions of section 6(ha) nor provisions of section (j) of the Bombay Court Fees Act are attracted in the instant matter and therefore, no court fees is required to be paid in respect of declaratory relief sought for by the plaintiff. The objection raised that considering the contentions raised in the plaint, the suit would be thrown out of pecuniary jurisdiction available to the appellate court for entertaining an appeal, is also required to be turned down. Valuation of the suit in a matters wherein claim of specific performance of agreement is raised shall be the amount of consideration which is agreed upon by the parties to the agreement. The suit must be held to be rightly valued under section 6(xi) of the Act treating it as falling under Article 7, Schedule 1 of the Bombay Court fees Act. I do not find any substance in the objection raised by the petitioner and, in view of the reasons set out above, the petition does not call for any interference in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India. Writ petition therefore stands rejected summarily.

9. Pending civil application, if any, stands disposed of.

Petition dismissed.