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Allahabad High Court - Court Fee - Revenue - DR - Sushil - Suri - Vs - Harish - Suri - and - 3 - Others - On - 31 - January - 2023 - Full Judgement
Allahabad High Court - Court Fee - Revenue - DR - Sushil - Suri - Vs - Harish - Suri - and - 3 - Others - On - 31 - January - 2023 - Full Judgement
Allahabad High Court - Court Fee - Revenue - DR - Sushil - Suri - Vs - Harish - Suri - and - 3 - Others - On - 31 - January - 2023 - Full Judgement
AFR
Reserved
Learned counsel has further submitted that it is admitted that trial court in
present case has unlimited pecuniary jurisdiction and therefore the
opposite parties-defendants do not have any right or locus to challenge the
court fees paid by revisionist-plaintiff.
It has also been submitted that for proper determination of market value of
the suit properties, the opposite parties -defendants had filed application
No.C-144 before the trial court for issuance of commission and although
objections C-155 were filed by the revisionist-plaintiff, the same has not
been decided on the ground that it does not require any consideration.
Learned counsel has also adverted to the fact that in earlier proceedings
between the parties pertaining to permanent injunction, regular suit
bearing No. 1364 of 2012 filed by the present plaintiffs, the aforesaid
three properties were shown valued at rupees ten crores and therefore it is
inconceivable that market value of aforesaid three properties has been
diminished to the extent as claimed in the present proceedings which have
been filed only three years thereafter although price of land in Lucknow
has been increasing at the rate of 15% per annum. It has been submitted
that proper valuation of properties in question have been clearly indicated
in written statement filed by defendants and as such valuation of suit was
required to be done in accordance thereof and court fees also paid in such
terms.
Learned counsel has also adverted to the plaint and the prayer indicated
therein to submit that revisionist-plaintiff is seeking a declaration of
cancellation of registered will dated 11th June, 2004 executed by late
Govind Ram Suri without specific relief being prayed therefor and in such
circumstances also the the prayer as made in plaint was defective and
court fees was required to be paid also in terms of cancellation of will
deed.
(C) Whether ad valorem court fees was payable with regard to relief of
declaration regarding will although no specific prayer for cancellation
thereof was made?
(d) where the land forms part of an estate paying revenue to Government, but is not a
definite share of such estate and docs not come under clause (a), (b) or (c) above-
the market value of the land which shall be determined by multiplying by fifteen the
rental value of the land, including assumed rent on proprietary cultivation, if any ;
(II) where the subject-matter is a building or garden-
according to the market-value of the building or garden, as the case may be.
Explanation. - The word 'estate' as used in this sub-section, means any land subject to
the payment of revenue for which the proprietor or farmer or raiyat shall have
executed a separate engagement lo Government or which, in the absence of such
engagement, shall have been separately assessed with revenue."
A perusal of the Act also indicates that the term 'market value' has not
been defined anywhere in the Act although the same has been explained in
a number of judgments of Hon'ble Supreme Court as well as this Court.
" 19. The suit being for possession, court fee was payable under Section 7(v)(II) of the
Court Fees Act, i.e. on the market value of the building. The term 'market value' has
not been defined in the Act. and for this reason it can be determined in any manner
considered proper. Strictly speaking, market value of a building cannot be taken to be
the cost of its construction less depreciation. If buildings are in great demand and
there is paucity of accommodation, people may be willing to pay a much higher value.
But if there is no demand for buildings, for example, at bill stations like Mussoorie,
the market value thereof i.e. the price at which people are willing to purchase them,
would be less than the cost of construction less depreciation.
The market value will thus greatly depend on the supply and demand for building i.e.
on a fluctuating factor. It is consequently difficult for parties to the proceeding to
adduce evidence on the market value of a building, and for the courts to lay down how
the market value should be calculated. It is for this reason that the cost of construction
less depreciation is often regarded as a safe mode of computing the market value of a
building. The market value can also be determined by other modes, for example, any
rule framed by the Government or a rule approved of by the Courts of law, or any
usage or custom prevalent in the area and having the force of law.
6
19. Section 7(vi-a)' of the Court Fees Act relates to suits for partition. In the case
of Mohd. Mustaq v. Mst Baqridan, AIR 1952 All 413 it was held that a suit for
partition of the plaintiffs' share must be valued for purposes of jurisdiction
under Section 4 of the Suits Valuation Act according to the share of the plaintiff. In
this case an earlier decision of this Court was relied on. Thus there is a direct
authority of this Court against the appellant. Moreover, the words used are "property
involved in or the total of which is affected by the relief sought". In the instant case
the respondent claims half share in the property. Thus the suit relates to the half share
of the respondent in the property. The relief claimed relates to the half share of the
respondent in the property. There is no dispute to the half share of the appellant in the
property.
This point may be considered from another aspect. In suits for partition, where the
plaintiff is not in actual possession of the property sought to be partitioned, relief of
possession is claim- . ed. Section 7(VI-A) of the Court Fees Act lays down that in suit
for partition the court fees is chargeable according to the one quarter of the value of
the plaintiff's share, or according to the full value of the plaintiff's share, if the
plaintiff was out of possession on the date of presenting the plaint. There is an
explanation attached to this sub-clause. This explanation says that the value of the
property shall be the market value computed in accordance with sub-section (V), Sub-
sections (V-A) and (V-B) are not mentioned here because they are not applicable to
the instant case. Section 7(V)(II) lays down that in suits for possession of a building,
the court-fee chargeable is according to the market value of the building. Section 4 of
the Suits Valuation Act also refers to Section 7(V) and it clearly says that suits for
possession of a building for the purposes of jurisdiction shall be valued at the market
value of the property involved. Thus where in a suit for partition the plaintiff also
claims possession of the property allotted to him, he would be liable to pay court fee
on the market value of the property upon which he seeks possession. Therefore, for the
purposes of jurisdiction also the property upon which possession is sought has to be
valued at its market value. Thus there is reciprocity between Section 7(V) of the Court
Fees Act and Section 4 of the Suits Valuation Act.
7
Subsequently in the case of Tara Devi versus Sri Thakur Radha Krishna
Maharaj, through Sebaits Chandeshwar Prasad and Meshwar Prasad and
another reported in (1987) 4 Supreme Court Cases 69 it has been held as
follows:-
In the case of Agra Diocesan Trust Association versus Anil David and
others reported in (2020) 19 Supreme Court Cases 183 it has been held as
follows:-
" In the opinion of this Court, there was no compulsion for the plaintiff to, at the stage
of filing the suit, prove or establish the claim that the suit lands were revenue paying
and the details of such revenue paid. Once it is conceded that the value of the land
[per Explanation to Section 7(iv-A)] is to be determined according to either sub-
clauses (v), (va) or (vb) of the Act, this meant that the concept of “market value” — a
wider concept in other contexts, was deemed to be referrable to one or other modes of
determining the value under sub-clauses (v), (va) or (vb) of Section 7(iv-A). This
aspect was lost sight of by the High Court, in the facts of this case. The reasoning and
conclusions of the High Court, are therefore, not sustainable."
Upon perusal of aforesaid judgments, it is apparent that concept of market
value has been explained in the aforesaid judgments that it would have
wider concept and would be deemed to be referable to one or other modes
8
The aspect of circle rate being taken for purposes of market value has
already been deprecated by Division Bench of this Court in the case of
M/s Nadeem Apartments Private Limited versus State of U.P. and others
reported in 2004(55) ALR 575 to the effect that circle rate can never be
taken to be the proper rate to assess actual market value of the landed
property since it is meant only for the registration of sale-deeds for
imposing stamp duty by revenue authority.
Learned counsel for opposite parties has also adverted to earlier suit filed
by revisionist-plaintiff for permanent injunction in which a considerably
higher valuation of properties was indicated and it has been submitted that
valuation of property would not lower to such a considerable level as has
been indicated in present suit which has been filed within three years
thereafter.
9
The aforesaid submission does not hold good ground particularly in view
of what has been held in the case of C.L. Basra (supra) that property
prices in various localities keep fluctuating from time to time and it would
be an onerous task for any court to keep determining such fluctuating
rates every year and as such it would be appropriate that the average
rental value of property should be taken and be multiplied as indicated in
the provisions of Act itself.
Onkarlal and others versus Ram Sarup and others reported in ILR 1954
All. 106(FB), Sanjay Tomar versus Shobha Saklani and another reported
in 2018 SCC OnLine All 993 and Mohd Yamin and others versus Mulla
Abdul Sattar and others reported in 2000 SCC OnLine All 492.
The cases of Sanjay Tomar and Mohd Yamin (supra) are also inapplicable
in the facts of case since it also involves the issue whether court fees
payable should be as per the plaintiff's share or on the entire property
since plaintiff was not in possession over the property sought to be
partitioned. As such the said judgments also not pertaining to
determination of market value, are also inapplicable.
the Act and therefore the trial court has clearly erred in not accepting the
same. The question therefore is answered in the affirmative in favour of
revisionist-plaintiff.
With regard to the said question, it is admitted between the parties that
suit proceedings are pending in a court which has unlimited pecuniary
jurisdiction. In the light of aforesaid, Hon'ble Supreme Court in the case
of Sujir Keshav Nayak versus Sujir Ganesh Nayak reproted in (1992) 1
Supreme Court Cases 731 has held as follows:-
“It is now well settled by the decisions of this Court in Sathappa
Chettiar v. Ramanathan Chettiar [1958 SCR 1024 : AIR 1958 SC 245]
and Meenakshisundaram Chettiar v. Venkatachalam Chettiar [(1980) 1 SCC 616] that
in a suit for declaration with consequential relief falling under Section 7(iv)(c) of the
Court Fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs
sought in the plaint and such valuation both for the purposes of court fee and
jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the
court on a consideration of the facts and circumstances of the case that the valuation
is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the
court can examine the valuation and can revise the same.”
But the defendant has no right to raise such objection nor the court should delve into
the matter after filing of written statement on evidence. The law on this aspect, thus,
should be taken to be as under:
(1) Where the question of court fee is linked with jurisdiction a defendant has a right
to raise objection and the court should decide it as a preliminary issue.
(2) But in those cases where the suit is filed in court of unlimited jurisdiction the
valuation disclosed by the plaintiff or payment of amount of court fee on relief claimed
in plaint or memorandum of appeal should be taken as correct.
(3) This does not preclude the court even in suits filed in courts of unlimited
jurisdiction from examining if the valuation, on averments in plaint, is arbitrary."
A coordinate Bench of this Court in the case of Smt. Santosh Kumari and
another versus Sukh Dev Singh, Civil Revision No. 555 of 2014 as
follows:-
"5. The Court Fees Act was enacted to collect revenue for the benefit of the State and
a contesting party cannot use it as a tool to obstruct the trial. It is difficult to
understand what grievance the defendant can make by seeking to invoke the revisional
jurisdiction 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. Even if the defendant believes honestly that proper court-
11
fee has not been paid by the plaintiff, still he has no right to move the superior court
against the order adjudging payment of court-fee payable on the plaint."
Upon applicability of aforesaid judgments in the present facts and
circumstances, it is evident that in such case as the present one where the
court has unlimited pecuniary jurisdiction, the defendant does not have
any vested right to raise objections and in case where valuation is
disclosed by the plaintiff on the relief claimed in the plaint, the same
should be taken as correct. Since the plaintiff is free to make his own
estimation of the reliefs sought in the plaint and therefore his valuation for
the purposes of court fees has to be ordinarily accepted. The word of
caution in such cases is only in case the court concerned comes to
conclusion that the valuation is arbitrary, unreasonable or demonstratively
undervalued. However the same does not give any right to the defendant
to use it as the defence merely to frustrate the claims of the plaintiff.
(Manish Mathur,J.)
Digitally signed by :-
SUBODH KUMAR SINGH
High Court of Judicature at Allahabad,
Lucknow Bench