Full Judgment Text
2013:BHC-OS:7442
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY .
O RDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1296 OF 2011
IN
SUIT (L) NO. 2268 OF 2010
Smt. Hema w/o. Late Shri Dilip Valecha,
Indian Inhabitant of Mumbai residing at
49, Bharat Mahal, 86, Marine Drive,
Mumbai 400 020 through her constituted
attorney Shri Ramnarayan Somani Indian
Inhabitant of Mumbai aged adult, having
his address at 158/159, Kalbadevi Road,
Mumbai 400 020 … Plaintiff'
Versus
1. Nasi M. Randelia,
of Lonawala, residing at 12, Modi
Bungalow, near Bangarwadi,
Railway Crossing, Lonawala,
District Pune and purporting to
have his address for service at D/4,
Kismat Nagar, Khushgaon Road,
Lonawala, District Pune.
2. Dara N. Sarkari,
Indian Inhabitant, residing at
nd
Manibhai Bhavan, 2 Floor,
Flat No. 5, 165, Khetwadi, Buch Road,
Mumbai 400 004.
3. M/s. Unique Construction,
A partnership firm registered and
Constituted under the Indian Partnership
Act, 1932, and having its registered office
at Shreeji Darshan, 100, S.V. Road,
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Kandivali (West), Mumbai 400 067.
4. Trishul Construction Company,
A partnership firm carrying on business
st
at 1 Floor, Flat No. 11, 211,
Rafi Ahmed Kidwai Road, Wadala,
Mumbai 400 031. … Defendants
Mr. A.P. Wachasunder, alongwith Mr. Navin Lond i/by M/s. Meghraj &
Associates for the plaintiff.
Smt. Uma Srivastava, Officer Taxing Master, High Court, present.
CORAM : R.D.DHANUKA J.
DATED : JULY 24, 2013.
ORAL JUDGMENT :
By this Chamber summons, plaintiff impugned the order
nd
dated 2 May, 2011 passed by the learned Taxing Master of this court
directing at the plaintiff to pay court fees as per current market value of
the property under section 5 of the Bombay Court Fees Act.
2. Some of the relevant facts for the purpose of deciding this
Chamber summons are as under :
(a) Parties to suit No. 2541 of 1984 filed consent terms on
th st
7 July, 2005 and 1 September, 2005. This court passed a decree
st
in terms of the consent terms on 1 September, 2005 in the said
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suit. In the said suit, plaintiffs had applied for the declaration that
st
the deed of cancellation dated 31 July, 1985 was not
binding on the plaintiffs therein and was null and void and had no
legal effect. By an order passed in terms of the said consent terms
filed by the parties to the said suit, it was ordered and declared
th
that the conveyance dated 7 April, 1981, between the defendants
in the said suit and the plaintiffs was subsisting and binding on
the parties and plaintiffs were sole and absolute owners of the
suit property.
(b) It is the case of the plaintiffs in this suit that neither the
plaintiff nor her late husband who were necessary parties to the
suit bearing No. 2541 of 1985 were impleaded as parties to the
said suit. The husband of Plaintiff had filed separate suit (896 of
1983) against the defendants herein in respect of the same
property which was subject matter of the suit (2541 of 1985).
th
Plaintiffs herein filed this suit (L) No. 2268 of 2010 on 13 July,
2010 inter alia praying for an order and decree to set aside the
st
decree passed by this court on 1 September, 2005 pursuant to
th st
consent terms dated 7 July, 2005 and 1 September, 2005 in suit
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No. 2541 of 1985. Plaintiff also seeks that the proceeding in suit
No. 2541 of 1985 be restored to file for disposal according to law
and Plaintiffs herein be impleaded as codefendant in the said suit
under order 1 rule 10 of the Code of Civil Procedure upon its
restoration.
(c) In paragraph 20 and 21 of the plaint in this suit, it is
stated by the plaintiff that the original suit No. 2541 of 1985
was valued at Rs.2,50,000/ being value of the property as
th
treated under the deed of conveyance dated 7 April, 1981 and
st
deed of cancellation dated 31 July, 1985 and accordingly, valued
the suit claim to set aside the decree dated 1/9/1985 passed
therein at Rs.2,50,000/ under article 4 of schedule I of the
Bombay Court Fees Act, 1959 and paid Rs.9450/ thereon.
(d) On objection raised by the office about deficit payment of
court fees, the learned Taxing Master of this court after hearing
the learned advocate for the plaintiff and learned Assistant
nd
Government Pleader passed an order on 2 May, 2011. The
learned Taxing Master considered the plaint in the said suit (2541
of 1985) and the consent terms filed between the parties to the
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said suit. The learned Taxing Master was of the view that in the
said consent terms, it was recorded that in view of the amicable
resolution of the dispute between the plaintiffs and the defendants
therein, plaintiffs therein had paid to the defendant sum of
Rs.1,21,00,000/ as and by way of full and final settlement of
the defendant's alleged claim in respect of the consideration for
purchase of the suit property. It was further recorded in the said
consent terms that save and except what was recorded therein,
neither party had any claim against each other. The suit was
accordingly disposed of in terms of the consent terms. In paragraph
11 of the impugned order, learned Taxing Master held that after
perusing the consent decree which the plaintiff herein seeks to be
set aside, as per section 5 of the Bombay Court Fees Act, plaintiff
has to value the property according to current market value. It is
held that even if the suit is restored and the plaintiff is
impleaded, benefit that the plaintiff may get, would be on current
market value of the property and therefore, this suit cannot be
valued on the basis of the old valuation of the suit and court fees
cannot be accepted on the basis of the old valuation in suit (2541
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of 1985) i.e. at Rs.2,50,000/. It is further held in the said order
that the plaintiffs in the said suit had given an undertaking to pay
further court fees, if any. Plaintiff in this suit also has given
undertaking to pay additional court fees if she is directed. With
these reasons, the learned Taxing Master has upheld the objection
raised by the office to the valuation of the suit considered by the
plaintiff in the plaint for the purpose of payment of court fees and
held that in view of the provisions of section 5 of the Bombay
Court Fees Act, plaintiff has to pay court fees as per current
market value of the property.
(e) For deciding the issue raised in this proceedings, it
would be appropriate to refer to section 5 of the Bombay Court
Fees Act,1959 and article 4 of the schedule I of the Bombay Court
Fees Act,1959 which read thus :
“5.(1) No document of any of the kinds specified as a chargeable in the first or filed
etc., in courts second Schedule to this Act annexed shall be filed, exhibited or recorded
in any or or in public offices. Court of Justice, or shall be received or furnished by any
public Officer, unless in respect of such document there has been paid a fee of an
amount not less than that, indicated by either of the said Schedules as the proper fee for
such document.
(2)When any difference arises between the officer whose duty it is to see that any fee is
paid under this Act and any suitor or his pleader, as to the necessity of paying a fee or
the amount thereof, the question shall, when the question arises, in the High Court, be
referred to the taxing Officer whose decision thereon shall be final, subject to revision,
on an application, made within (Thirty days) from the date of the decision, by the suitor
or his pleader or such officer as may be appointed in this behalf by the State
Government, by the Chief Justice or by such Judge of the High Court as the Chief
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Justice shall appoint
either generally or specially in this behalf.
(3) When any such difference arises in the City Civil Court, Bombay, the question shall
be referred to the Registrar, of the City Civil Court whose decision shall be final ,
subject to revision, on an application, made within (Thirty days) from the date of the
decision, by the party concerned or such officer as may be appointed in this behalf by
the State Government, by the Principal Judge or such other Judge of the said Court as
the principal Judge shall appoint either generally or specially in this behalf.
(4) When such difference arises in any other Court, the question shall be referred to the
final decision of the Judge presiding over such Court.
Article 4 of Schedule I of the Bombay Court Fees Act, 1959 reads thus :
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY .
O RDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1296 OF 2011
IN
SUIT (L) NO. 2268 OF 2010
Smt. Hema w/o. Late Shri Dilip Valecha,
Indian Inhabitant of Mumbai residing at
49, Bharat Mahal, 86, Marine Drive,
Mumbai 400 020 through her constituted
attorney Shri Ramnarayan Somani Indian
Inhabitant of Mumbai aged adult, having
his address at 158/159, Kalbadevi Road,
Mumbai 400 020 … Plaintiff'
Versus
1. Nasi M. Randelia,
of Lonawala, residing at 12, Modi
Bungalow, near Bangarwadi,
Railway Crossing, Lonawala,
District Pune and purporting to
have his address for service at D/4,
Kismat Nagar, Khushgaon Road,
Lonawala, District Pune.
2. Dara N. Sarkari,
Indian Inhabitant, residing at
nd
Manibhai Bhavan, 2 Floor,
Flat No. 5, 165, Khetwadi, Buch Road,
Mumbai 400 004.
3. M/s. Unique Construction,
A partnership firm registered and
Constituted under the Indian Partnership
Act, 1932, and having its registered office
at Shreeji Darshan, 100, S.V. Road,
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Kandivali (West), Mumbai 400 067.
4. Trishul Construction Company,
A partnership firm carrying on business
st
at 1 Floor, Flat No. 11, 211,
Rafi Ahmed Kidwai Road, Wadala,
Mumbai 400 031. … Defendants
Mr. A.P. Wachasunder, alongwith Mr. Navin Lond i/by M/s. Meghraj &
Associates for the plaintiff.
Smt. Uma Srivastava, Officer Taxing Master, High Court, present.
CORAM : R.D.DHANUKA J.
DATED : JULY 24, 2013.
ORAL JUDGMENT :
By this Chamber summons, plaintiff impugned the order
nd
dated 2 May, 2011 passed by the learned Taxing Master of this court
directing at the plaintiff to pay court fees as per current market value of
the property under section 5 of the Bombay Court Fees Act.
2. Some of the relevant facts for the purpose of deciding this
Chamber summons are as under :
(a) Parties to suit No. 2541 of 1984 filed consent terms on
th st
7 July, 2005 and 1 September, 2005. This court passed a decree
st
in terms of the consent terms on 1 September, 2005 in the said
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suit. In the said suit, plaintiffs had applied for the declaration that
st
the deed of cancellation dated 31 July, 1985 was not
binding on the plaintiffs therein and was null and void and had no
legal effect. By an order passed in terms of the said consent terms
filed by the parties to the said suit, it was ordered and declared
th
that the conveyance dated 7 April, 1981, between the defendants
in the said suit and the plaintiffs was subsisting and binding on
the parties and plaintiffs were sole and absolute owners of the
suit property.
(b) It is the case of the plaintiffs in this suit that neither the
plaintiff nor her late husband who were necessary parties to the
suit bearing No. 2541 of 1985 were impleaded as parties to the
said suit. The husband of Plaintiff had filed separate suit (896 of
1983) against the defendants herein in respect of the same
property which was subject matter of the suit (2541 of 1985).
th
Plaintiffs herein filed this suit (L) No. 2268 of 2010 on 13 July,
2010 inter alia praying for an order and decree to set aside the
st
decree passed by this court on 1 September, 2005 pursuant to
th st
consent terms dated 7 July, 2005 and 1 September, 2005 in suit
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No. 2541 of 1985. Plaintiff also seeks that the proceeding in suit
No. 2541 of 1985 be restored to file for disposal according to law
and Plaintiffs herein be impleaded as codefendant in the said suit
under order 1 rule 10 of the Code of Civil Procedure upon its
restoration.
(c) In paragraph 20 and 21 of the plaint in this suit, it is
stated by the plaintiff that the original suit No. 2541 of 1985
was valued at Rs.2,50,000/ being value of the property as
th
treated under the deed of conveyance dated 7 April, 1981 and
st
deed of cancellation dated 31 July, 1985 and accordingly, valued
the suit claim to set aside the decree dated 1/9/1985 passed
therein at Rs.2,50,000/ under article 4 of schedule I of the
Bombay Court Fees Act, 1959 and paid Rs.9450/ thereon.
(d) On objection raised by the office about deficit payment of
court fees, the learned Taxing Master of this court after hearing
the learned advocate for the plaintiff and learned Assistant
nd
Government Pleader passed an order on 2 May, 2011. The
learned Taxing Master considered the plaint in the said suit (2541
of 1985) and the consent terms filed between the parties to the
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said suit. The learned Taxing Master was of the view that in the
said consent terms, it was recorded that in view of the amicable
resolution of the dispute between the plaintiffs and the defendants
therein, plaintiffs therein had paid to the defendant sum of
Rs.1,21,00,000/ as and by way of full and final settlement of
the defendant's alleged claim in respect of the consideration for
purchase of the suit property. It was further recorded in the said
consent terms that save and except what was recorded therein,
neither party had any claim against each other. The suit was
accordingly disposed of in terms of the consent terms. In paragraph
11 of the impugned order, learned Taxing Master held that after
perusing the consent decree which the plaintiff herein seeks to be
set aside, as per section 5 of the Bombay Court Fees Act, plaintiff
has to value the property according to current market value. It is
held that even if the suit is restored and the plaintiff is
impleaded, benefit that the plaintiff may get, would be on current
market value of the property and therefore, this suit cannot be
valued on the basis of the old valuation of the suit and court fees
cannot be accepted on the basis of the old valuation in suit (2541
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of 1985) i.e. at Rs.2,50,000/. It is further held in the said order
that the plaintiffs in the said suit had given an undertaking to pay
further court fees, if any. Plaintiff in this suit also has given
undertaking to pay additional court fees if she is directed. With
these reasons, the learned Taxing Master has upheld the objection
raised by the office to the valuation of the suit considered by the
plaintiff in the plaint for the purpose of payment of court fees and
held that in view of the provisions of section 5 of the Bombay
Court Fees Act, plaintiff has to pay court fees as per current
market value of the property.
(e) For deciding the issue raised in this proceedings, it
would be appropriate to refer to section 5 of the Bombay Court
Fees Act,1959 and article 4 of the schedule I of the Bombay Court
Fees Act,1959 which read thus :
“5.(1) No document of any of the kinds specified as a chargeable in the first or filed
etc., in courts second Schedule to this Act annexed shall be filed, exhibited or recorded
in any or or in public offices. Court of Justice, or shall be received or furnished by any
public Officer, unless in respect of such document there has been paid a fee of an
amount not less than that, indicated by either of the said Schedules as the proper fee for
such document.
(2)When any difference arises between the officer whose duty it is to see that any fee is
paid under this Act and any suitor or his pleader, as to the necessity of paying a fee or
the amount thereof, the question shall, when the question arises, in the High Court, be
referred to the taxing Officer whose decision thereon shall be final, subject to revision,
on an application, made within (Thirty days) from the date of the decision, by the suitor
or his pleader or such officer as may be appointed in this behalf by the State
Government, by the Chief Justice or by such Judge of the High Court as the Chief
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Justice shall appoint
either generally or specially in this behalf.
(3) When any such difference arises in the City Civil Court, Bombay, the question shall
be referred to the Registrar, of the City Civil Court whose decision shall be final ,
subject to revision, on an application, made within (Thirty days) from the date of the
decision, by the party concerned or such officer as may be appointed in this behalf by
the State Government, by the Principal Judge or such other Judge of the said Court as
the principal Judge shall appoint either generally or specially in this behalf.
(4) When such difference arises in any other Court, the question shall be referred to the
final decision of the Judge presiding over such Court.
Article 4 of Schedule I of the Bombay Court Fees Act, 1959 reads thus :
| 4. Plaint, application or petition<br>(including<br>memorandum of appeal) which is<br>capable of<br>being treated as a suit, to set aside a<br>decree or<br>order having the force of decree. | The same fee as is<br>leviable on a plaint<br>in a suit to obtain<br>the relief granted in<br>the decree or<br>order, as the case<br>may be. |
|---|
3. The learned counsel for the plaintiff submits that article 4
would be attracted to the facts of this case. Learned counsel invited my
attention to the averments made in the plaint and also to the prayer
clause. It is submitted that in this suit, the plaintiff has pleaded for
setting aside the decree passed by this court on 1st September, 2005
pursuant to the consent terms dated 7th July, 2005 and 1st September,
2005. It is submitted that the plaintiff has also prayed for leave for
being impleaded as codefendant in the said Suit (2541 of 1985) under
the provisions of Order I rule 10 of the Code of Civil Procedure upon its
restoration. It is submitted that the learned Taxing Master was thus not
right in raising the objection and in holding that the suit claim would
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have to be valued at the current market rate of the suit property in
question. It is submitted that in view of article 4 of the schedule I of
the Bombay Court Fees Act, the plaintiff is liable to pay the court fees
on the basis of valuation of the suit property in suit (2541 of 1985),
decree in respect of which is impugned by the plaintiff in this suit and is
liable to pay same court fees which was leviable on the suit claim in
which said decree was passed, which is impugned by the plaintiff in
this suit. The learned counsel placed reliance upon the judgment of the
Supreme Court in the case of Satheedevi Vs. Prasanna and another
(2010) 5 SCC 622 and in particular paragraphs 4, 12, 13, 17 to 21,
bracketed portion of 27 and 38 which read thus :
“4. In furtherance of the direction given by the High
Court, the appellant applied for and she was granted
permission to amend the plaint and to incorporate prayer
for cancellation of the sale deed executed by respondent
No. 1 in favour of respondent No. 2. In the amended
plaint, value of the property was shown as Rs. 7,00,000/
and accordingly, the court fees was paid. However by an
order dated 3.7.2008, the trial Court directed the
appellant to pay court fee on the market value of the plaint
schedule property which was assessed at Rs. 12 lakhs per
acre.
12. Before proceeding further, we may notice two well
recognized rules of interpretation of statutes. The first and
primary rule of construction is that the intention of the
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legislature must be found in the words used by the
legislature itself. If the words used are capable of one
construction, only then it would not be open to the courts
to adopt any other hypothetical construction on the
ground that such hypothetical construction is more
consistent with the alleged object and policy of the Act.
The words used in the material provisions of the statute
must be interpreted in their plain grammatical meaning
and it is only when such words are capable of two
constructions that the question of giving effect to the
policy or object of the Act can legitimately arise Kanai
Lal Sur v. Paramnidhi Sadhukhan MANU/SC/0097/1957
: 1958 SCR 360.
13. The other important rule of interpretation is that the
Court cannot rewrite, recast or reframe the legislation
because it has no power to do so. The Court cannot add
words to a statute or read words which are not therein it.
Even if there is a defect or an omission in the statute, the
Court cannot correct the defect or supply the omission.
Union of India v. Deoki Nandan Aggarwal
MANU/SC/0013/1992 : 1992 Supp (1) SCC 323, Shyam
Kishori Devi v. Patna Municipal Corporation .
17. Section 40 deals with suits for cancellation of
decrees etc. which are not covered by other sections. If this
section is interpreted in the light of the expression `save as
otherwise provided' used in Section 7(1) , it becomes clear
that the rule enshrined therein is a clear departure from
the one contained in Section 7 read with Sections 25 , 27 ,
29 , 30 , 37 , 38 , 45 and 48 which provide for payment of
court fee on the market value of the property. In that
sense, Section 40 contains a special rule.
18. Section 40(1) lays down that in a suit for
cancellation of a decree for money or other property
having a money value, or other document which purports
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or operates to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or interest
in money, movable or immovable property, fee shall be
computed on the value of the subject matter of the suit
and further lays down that such value shall be deemed to
be if the whole decree or other document sought to be
cancelled, the amount or value of the property for which
the decree was passed or other document was executed. If
a part of the decree or other document is sought to be
cancelled, such part of the amount or value of the property
constitute the basis for fixation of court fee. Subsection
(2) lays down that if the decree or other document is such
that the liability under it cannot be split up and the relief
claimed relates only to a particular item of the property
belonging to the plaintiff or the plaintiff's share in such
property, fee shall be computed on the value of such
property, or share or on the amount of the decree,
whichever is less.
19. The deeming clause contained in the substantive
part of Section 40(1) makes it clear that in a suit filed for
cancellation of a document which creates any right, title or
interest in immovable property, the court fees is required
to be computed on the value of the property for which the
document was executed. To put it differently, the value of
the property for which the document was executed and
not its market value is relevant for the purpose of court
fee. If the expression `value of the subject matter of the
suit' was not followed by the deeming clause, it could
possibly be argued that the word `value' means the market
value, but by employing the deeming clause, the
legislature has made it clear that if the document is sought
to be cancelled, the amount of court fee shall be computed
on the value of the property for which the document was
executed and not the market value of the property. The
words "for which" appearing between the words "property"
and "other documents" clearly indicate that the court fee is
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required to be paid on the value of the property mentioned
in the document, which is subject matter of challenge.
20. If the legislature intended that fee should be
payable on the market value of the subject matter of the
suit filed for cancellation of a document which purports or
operates to create, declare, assign, limit or extinguish any
present or future right, title and interest, then it would
have, instead of incorporating the requirement of payment
of fees on value of subject matter, specifically provided for
payment of court fee on the market value of the subject
matter of the suit as has been done in respect of other
types of suits mentioned in Sections 25 , 27 , 29 , 30 , 37 , 38 ,
45 and 48 . The legislature may have also, instead of using
the expression "value of the property for which the
document was executed", used the expression "value of the
property in respect of which the document was executed".
However, the fact of the matter is that in Section 40(1) the
legislature has designedly not used the expression `market
value of the property'.
21. If the interpretation placed by the trial Court and
the High Court on the expression "value of the property for
which the document was executed" is accepted as correct
then the word `value' used in Section 40(1) of the Act will
have to be read as `market value' and we do not see any
compelling reason to add the word `market' before the
word `value' in Section 40(1) of the Act.
27. ….......... As already pointed out, Section 7(ivA) of the
Old Act as well as Section 40(1) of the present Act deal
with suits for cancellation of a decree for money,
cancellation of a decree for other property having a money
value and suit for cancellation other document. In the case
of other documents, the clause "the amount or the value of
the property for which the decree was passed" cannot be
held to be applicable and the only clause that can be
properly applied is only the value for which the document
was executed. In the third category in Section 40(1), to
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the words `other document, the words `which purports or
operates to create, declare, assign, limit or extinguish'
rights in moveable or Immovable property are included.
Obviously in suits for cancellation of other documents
referred to in Section 40(1) of the new Act the valuation
should be the value of the other document executed. In
Balireddy v. Abdul Satar the court refers to the section
which says that the value of the subject matter shall be
deemed to be the amount for which the document is
executed. But it confined its discussion to the actual value
of the property and held that it referred only to the market
value. This decision also does not refer to the valuation of
the document on the basis of the amount for which the
document is executed. (emphasis supplied)
38. In view of our analysis of the relevant statutory
provisions, it must be held that the judgments of the
Division Bench of Madras High Court and of the learned
Single Judges in Venkata Narasimha Raju v. Chandrayya
(supra), Navaraja v. Kaliappa Gounder (supra),
Arunachalathammal v. Sudalaimuthu Pillai (supra) and
Andalammal v. B. Kanniah (supra) as also the judgment
of the learned Single Judge of Andhra Pradesh High Court
in Allam Venkateswara Reddy v. Golla
Venkatanarayana (supra) lay down correct law. In the
first of these cases, the Division Bench of Madras High
Court rightly observed that when there is a special rule in
the Act for valuing the property for the purpose of court
fee, that method of valuation must be adopted in
preference to any other method and, as mentioned above,
Section 40 of the Act certainly contains a special rule for
valuing the property for the purpose of court fee and we
do not see any reason why the expression `value of the
property' used in Section 40(1) should be substituted with
the expression `market value of the property'.”
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4. The learned counsel submits that section 40 of the Kerala
Court Fees and Suit Valuation Act, 1959 is in para materia with the
Article 4 of the Schedule I of the Bombay Court Fees Act. It is submitted
that on interpretation of section 40 of the said Act, the Supreme Court
has held that the suit for cancellation of the document could not have
been valued at the current market price and ought to have been valued
on the basis of the amount or value of the property for which decree was
passed or other document was executed. It is submitted that on the
plain reading of Article 4 of schedule I of Bombay Court Fees Act, it is
clear that if the plaint, application or petition is filed which is capable of
being treated as suit, to set aside the decree, the same fee is leviable
on the plaint in the suit to obtain relief granted in the decree or order
as the case may be. It is submitted that in view of the said clear and
unambiguous provisions, the learned Taxing Master could not have
raised the objection and ask the plaintiff to pay the court fees on the
basis of current market value of the property in question.
5. None appears for the state of Maharashtra at the time of
hearing of this matter.
6. Mrs. Uma Srivastava, Taxing Master of this court is present in
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court and submits that the order passed by the Taxing Master which
has been impugned in this proceedings is correct and in accordance
with the law and does not require any interference by this court.
7. On perusal of Article 4 of Schedule I to Bombay Court Fees Act,
1959, it is clear that the plaint which is capable of being treated as suit
to set aside the decree, same court fees is payable as is leviable on the
plaint in the suit to obtain reliefs granted under the decree or order, as
the case may be.
8. It would therefore, be necessary to consider whether the fee
leviable on the claim made in the suit (2541 of 1984) and paid by the
plaintiffs in the said suit was proper or not. On perusal of the plaint in
suit (2541 of 1984), it is clear that in the said suit, plaintiff therein had
st
applied for declaration that the deed of cancellation dated 31 July,
1985 which was registered with the sub registrar of assurances, was
forged and not binding on the plaintiffs therein and was null and void.
It was alleged in the plaint that under the said deed of cancellation, the
defendant had alleged to have paid Rs.2,50,000/ to the plaintiffs
therein which consideration was disclosed in the said deed of
cancellation. Relying upon the said document, the plaintiffs in the said
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suit (2541 of 1985) inter alia prayed for declaration that the said
deed of cancellation was null and void and was forged document and
valued the court fees on Rs.2,50,000/ being the alleged consideration
of the said deed of cancellation and paid court fees accordingly. It is not
in dispute that the said suit was numbered by the office of this court
considering the valuation of the said claim in the said suit of
Rs.2,50,000/. In this suit, the plaintiff seeks an order and decree to set
aside the decree passed in said Suit (2541 of 1985) pursuant to the
consent terms arrived at between the parties to the said suit and for
restoration of the said suit and for disposal according to law. In my view
as the court fees leviable on the claims made in the suit (2541 of 1985)
was not liable to be valued at the market value of the property, this
suit by which the plaintiff seeks to set aside the decree passed in that
suit also thus need not be valued at the market rate. Whatever, the
court fees was leviable in the suit (2541 of 1985), same court fees is
leviable in this suit also. In my view, the valuation of this suit would
thus be in accordance with article 4 of Schedule I of Bombay Court
Fees Act, 1959 and the Court fees paid by the plaintiff considering the
valuation of the suit claim in suit (2541 of 1985) is proper and correct.
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9. The Supreme Court in the case of Satheedevi (supra) while
interpreting section 40 of the Kerala Court Fees and Suit Valuation
Act,1959 which is in para materia with Article 4 of schedule I of the
Bombay Court Fees Act held that if the legislature intended that fee
should be payable on the market value of the subject matter of the suit,
filed for cancellation of a document which purports or operates to
create, declare, assign, limit or extinguish present or future right title
and interest, then it would have, instead of incorporating the
requirement of payment of fees on the value of subject matter,
specifically would have provided for payment of court fee on the market
value on the subject matter of the suit. It is held that if the word
“value” used in section 40(1) of the said Kerala Court Fees and Suit
Valuation Act, will have to read as market value, there is no compelling
reason to add the word “Market” before the word “value” under section
40(1) of the Act. It is also held by the Supreme Court that first and
primary rule of construction and or interpretation of statute is that the
intention of the legislature must be found in the words used by the
legislature itself. If the words are capable of one construction only,
then it would not be open to the courts to adopt any other hypothetical
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construction on the ground that such hypothetical construction is more
consistent with the alleged object and policy of the Act.
10. On interpretation of article 4 of schedule I of the Bombay Court
Fees Act, it is clear that in the suit for setting aside the decree or order
having force of decree, same court fees which is payable on the plaint
in the suit to obtain relief granted in the decree or order as the case
may be, is payable. In my view Article 4 is not capable of any other
interpretation. Reliance placed by the learned Taxing Master on section
5 of the Bombay Court Fees Act is of no significance.
11. On perusal of the order passed by the Taxing Master, it
appears that the learned taxing master has placed reliance on section 5
of the Bombay Court Fees Act while holding that the plaintiff has to
value the property according to current market value and also
considered that when the suit is restored, plaintiff would be impleaded
in the said suit and would get benefit on the current market value of the
property. On perusal of the plaint in this proceeding, it is clear that the
plaintiff has sought for impleadment of the plaintiff as codefendant. The
suit claim cannot be valued on the premise that if the plaintiff succeeds
in their suit, defendant also would be benefited on the basis of the then
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current market value of the property. In my view, there is no merit in
the conclusion drawn by the learned Taxing Master that the plaintiff
would have to value the suit claim on current market value of the
property and is liable to pay any deficit court fees.
10. The impugned order passed by the learned Taxing Master is
accordingly set aside. Chamber summons is made absolute in terms of
prayer clauses (a), (b) and (c). The Taxing Master is directed to accept
the court fees of Rs.9430/ paid by the plaintiffs on the suit valued at
Rs.2,50,000/ which is proper fees under article 4 of schedule I of the
Court Fees Act, 1959. There shall be no order as to costs.
(R.D. DHANUKA,J.)
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