G.N. Das, J.
1. This is a reference under Section 5, Court-fees Act and raises three questions for decision, viz., (1) whether one valuation should be put under Section 7(4)(c), Court-fees Act, subject to correction by the Court under Section 8(c), Court-fees Act; (2) where the defendant and not the plaintiff is before the Court, what is the procedure to be followed for valuing the relief and (3) whether Section 17(2), Court-fees Act as amended would apply to cases arising under Section 7(4)(c), Court-fees Act.
2. The substance of the plaint, as it appears from the report of the Stamp Reporter, is that the plaintiff brought the suit out of which the appeal arises on the allegation that the disputed property belonged to one Akazaddin and others. The plaintiff purchased the same by a registered deed of sale for a consideration of Rs. 1,000 from the said Akazaddin and others in the benami of of his brother-in-law defendant 1. The plaintiff went into possession of the property purchased by him. Later on, defendant ,1 sold the disputed property to defendant 2 who in collusion with defendants 3 and 4, is trying to dispossess the plaintiff from the disputed property. The plaintiff accordingly brought the suit for declaration that defendant 1 is the benamdar of the plaintiff in respect of the disputed property and for a permanent injunction restraining the defendants from taking possession.
3. The suit was valued at Rs. 1,000 for declaration and Rs. 10 for permanent injunction. A sum of Rs. 20 was paid on the prayer for declaration and a sum of annas 12 only was paid on the prayer for permanent injunction.
4. The suit was decreed on contest.
5. An appeal was taken by the contesting defendants to the lower appellate Court on the valuation as made in the plaint and court-fees were paid on the same footing. The appeal was dismissed by the lower appellate Court.
6. The present appeal has been taken by defendant 2 and in the memorandum of appeal court-fees have been paid on the same basis as it was paid in the Courts below.
7. The Stamp Reporter was of opinion that the mode of valuing the relief claimed in the plaint was contrary to Section 7(4)(c), Court-fees Act and that court-fees should be paid on a single valuation of the reliefs claimed in the plaint. The learned advocate for the appellant having contested the view taken by the Stamp Reporter, the aforesaid points of difference were placed by the Stamp Reporter before the learned Registrar, Appellate Side, as a Taxing Officer of this Court.
8. The learned Registrar was of opinion that the questions involved are substantial questions and require a decision by the Court. The matter was referred to me as a Taxing Judge under the orders of the learned Chief Justice for giving my decision on the points already mentioned. I shall first take up the first question submitted to me for decision.
9. I have already stated the substance of the plaint which is to be found in the report of the Stamp Reporter and this is not disputed on behalf of the defendant appellant. The present case, therefore, is one where the plaintiff has prayed for a declaration of his title and for a permanent injunction restraining the defendant from interfering with his possession, The question is whether Section 7(4)(c), Court-fees Act is attracted to the facts of this case. Section 7(4)(c), Court-fees Act would apply if the suit is one for a declaration where a consequential relief is prayed for. The expression 'consequential relief' has been defined to mean some relief which follows directly from the declaration, the valuation of which is not capable of being definitely ascertained and which is not specifically provided for and cannot be claimed independently of the declaration as a substantial relief: Kalu Ram v. Babu Lal : AIR1932All485 , Mt. Zeb Ul-Nisa v. Din Mohammad, I. L. R. (1941) Lah. 451; (A.I.R. (28) 1941 Lah. 97 FB). Tested in this light, the prayer for a permanent injunction in the pre-sent case is a consequential relief. The present, case, therefore, directly comes within Section 7(4)(c), Court-fees Act. Court-fees are, therefore, payable ad valorem on the amount at which the relief is sought to be valued in the plaint, subject to the provisions of Section 8(c), Court-fees Act.
10. In the plaint, the plaintiff has valued the relief for declaration at Rs. 1,000 and the consequential relief by way of a permanent injunction at Rs. 10. A fixed court-fee of Rs. 20 has been paid on the former relief under Schedule II, Article 17(iii), and on the latter relief under Section 7(4)(d), Court-fees Act. Such a mode of valuation is entirely erroneous and the court-fees paid are not in terms of the statute. The correct mode of valuation of the relief in such a case is to put a single valuation, the option of valuing the relief resting with the plaintiff. This was held by this Court in the case of In re Kalipada Mukherji : AIR1930Cal686 . This is conceded by the learned advocates appearing on both sides. Mr. Roy, appearing for the appellant, however, contends that unless the plaintiff values his relief properly the proper fee payable on the plaint and on the memorandum of appeal cannot be ascertained, and as there is no objective standard of valuation in the present case, the Court is not in a position to value the same. In the present case, the plaintiff was served with a copy of the order of this Court specially drawing his attention to the fact that the plaint may have to be valued in this Court under Section 7(4)(c), Court-fees Act. The plaintiff has chosen not to appear in pursuance of the notice.
11. The power of this Court to correct a valuation improperly made by the plaintiff was recognised in the case of Narayangunj Central Co-operative Sale and Supply Society Ltd. v. Mafizuddin Ahmed : AIR1934Cal448 , and is now embodied in Section 7(4)(c), Court-fees Act as amended by Section 7 (2), Bengal Act, (Act VII [7] of 1935), 1935. As pointed out, however, in the case of Star Trading and Investment Ltd. v. Ashutosh Mukerjee : AIR1939Cal627 , as no rules under Section 9, Suits Valuation Act have been framed, the Court is powerless in cases where there is no objective standard of valuation. If the question had arisen in the trial Court. the Court might have acted under Order 7, Rule 11, Civil P. C. In the present case, however, the plaintiff is a respondent and has not appeared before the Court in spite of service of notice. The question, therefore, is whether the Court is powerless in these circumstances. As the plaintiff has not availed himself of the option given to him by law of valuing the relief, in my opinion, the Court has to value the same as best as it can. In cases arising under Section 7(4)(c), Court-fees Act, the value for the purpose of jurisdiction follows the valuation for the purpose of court-fees. In the case of Sailendra Nath v. Ram Chandra, 25 C. W. N. 768 : (A. I. R. (8) 1921 Cal. 84), the plaintiff valued his suit at Rs. 1,010 for the purpose of jurisdiction. The Court [?] to trial on that footing. The decree for costs on a valuation of Rs. 1,010 was passed in favour of the plaintiff. In my opinion, in the special facts of this case, the value of the relief cannot be put at a sum less than Rs. 1,010. As such the value of the relief in the present case must be deemed to be Rs. 1,010 under Section 7(4)(c), Court-fees Act. This disposes of the first question which was referred to me for my decision.
12. As regards the second question, the proper procedure in cases where the defendant and not the plaintiff is before the Court, the Court has to serve a notice on the plaintiff to appear in Court for the limited purpose of assessment of court-fees, and if the plaintiff fails to appear in spite of such service of notice, the Court is authorised to put a valuation as best as it can in the circumstances of each particular case.
13. Coming to the third question, the material provision is Section 17(2), Court-fees Act which runs as follows:
''Where more reliefs than one based on the same cause of action are sought either jointly or in the alternative, the fee shall be paid according to the value of the relief in respect of which the largest fee is payable.'
14. In the case of In re Kalipada Mukherji : AIR1930Cal686 , Rankin J. was of opinion that in cases coming within Section 7(4)(c), Court-fees Act, there is only one relief and court-fees have to be paid on a single valuation which it is the right and duty of the plaintiff to put in the plaint. In the case of Mohitosh Mukherjee v. Satyanarain Chatterjee, 53 C.W.N. 340, which arose out of a suit for a declaration that two deeds of gift and settlement were invalid as being fraudulent and collusive and for khas possession, Sen J. held that the case came within Section 7(4)(c), the relief for possession being ancillary to the relief for declaration. Sen J. then proceeded to observe that the relief for declaration and the relief for khas possession are two reliefs based on the same cause of action and as such the fee shall be paid according to the value of the relief in respect of which the largest fee is payable. The view taken by Rankin J. in the case of In re Kalipada Mukherji : AIR1930Cal686 , was held to have become obsolete in view of the amendment of Section 17, Court-fees Act by Section 12, Bengal Act, (Act VII [73 of 1935), 1935.
15. The answer to the question formulated really depends on the meaning of the word 'relief' occurring in that clause. In my opinion, the second part of the clause clearly shows that the relief contemplated by the clause must be one in respect of which court-fees are independently payable under the Act. It cannot mean consequential relief which is not per se chargeable with court-fees. The view taken by Sen J. does not seem to be correct. In my opinion, Section 17(2) does not apply to cases arising under Section 7(4)(c), Court-fees Act where a single valuation is to be put, and ad valorem court-fees are to be paid on that valuation.
16. The defendant-appellant must pay the costs of this reference, hearing fee being assessed at one gold-mohur.