Sanjay Karol, J.
1. The plaintiff, who is the appellant herein, is aggrieved by order dated 26.9.2008 passed by Additional District Judge (Fast Track Court), Shimla, dismissing his application filed under Order 47 Rule 1, CPC seeking review of order dated 17.9.2008 directing the plaintiff to make good the deficiency in the court-fee, in terms of its earlier order dated 24.10.1995.
2. The plaintiff filed a suit for declaration to the effect that the provisions of Section 16 of the H.P. Town and Country Planning Act, 1977, are not applicable to the area of Village Badhai, Tehsil and District Shimla, H.P. and that no permission is required for raising any construction in the said area and further for a permanent prohibitory injunction restraining the defendant from taking any action against the construction raised in the said village under the provisions of the aforesaid Act.
3. The plaintiff is owner in possession of 1/16th share in land measuring 3 Biswas, out of the total land measuring 2 Bighas 15 Biswas, comprised in Khasra No. 1308/503, Khata Khatauni No. 73/107, situate in Village Badhai, Tehsil and District Shimla, H.P. He raised construction thereupon without taking statutory permission, presumably on the ground that it was not required. However, the statutory authority issued a show cause notice dated 3.7.1995, asking the plaintiff to restore the land to its original condition existing before the development and demolish the building.
4. Apprehending threat of demolition, plaintiff filed the suit pleading that the provisions of the Act were not applicable to the area in question, hence the defendants' action is illegal.
5. Initially, the suit was filed before this Court. Order dated 19.10.2001 directing the parties to maintain status quo was confirmed by this Court on 14.3.1996. Subsequently, by virtue of the provisions of the H.P. Courts (Amendment) Act, 2001 the suit stood transferred to the Court of District Judge, Shimla.
6. The Court below found that the plaintiff had affixed insufficient court fee and hence vide order dated 24.10.2005, directed the plaintiff to take steps in terms of the following order:
Time prayed for consideration. Allowed. It appears that suit has been valued for Rs. 5.50 lacs and a court fee of Rs. 130/- has been affixed which is insufficient. Plaintiff to take steps. Be listed on 7.11.2005.
7. Record reveals that on 7.11.2005 the plaintiff moved an application under Order 23 Rule 1, CPC, which stood decided in terms of order dated 21.2.2006, which is reproduced as under:
Heard. Plaintiff has moved an application under Order 23 Rule 1 C.P.C. for withdrawing relief of injunction claimed in the suit on the ground that relief of permanent prohibitory injunction is not required by the plaintiff and only the declaration is sufficient. The application is supported by an affidavit. On the other hand State/respondent has filed reply claiming that plaintiff cannot withdraw the relief of injunction and suit will become infructuous. Plaintiff is the dominus litus and defendant cannot dictate terms to him. A plaintiff can withdraw any relief or plea and the permission of the court is not required. Permission of the court would be required where plaintiff withdraws a suit and seeks leave of the court to institute the same on the same cause of action. There is no such prayer in the application. No doubt where relief of declaration is sought qua any immovable property and injunction is also sought, court fee is payable at market value of the property. Suit was assessed for the purposes of jurisdiction at Rs. 5.50 lacs, so also for the purposes of declaration. Since the property was assessed at Rs. 5.50 lacs, the court fee for declaration and injunction was payable on this amount. Rs. 13 has been fixed under the H.P. Court Fee Act as a minimum fee but there is no upper limit about the maximum fee payable. Court is within its jurisdiction to require the plaintiff to correct the court fee and pay the same. It cannot be said that court has no jurisdiction to demand court fee unless an issue is framed. If the material in the plaint itself gave sufficient details of the valuation court can demand the court fee leviable. Since the relief of permanent injunction has withdrawn by the plaintiff, plaintiff is the master of his cause and can decide what relief he wants to obtain from the court. Whether the suit can continue after withdrawal of suit it is a matter to be decided on merits. It is not for the defendant to dilate on this matter at the stage. As such in my humble opinion there are grounds to allow the application and application under Order 23 Rule 1, C.P.C. is allowed. Now to come up for arguments on 10.3.2006.
(Emphasis supplied)
8. The matter was adjourned from time to time and on 17.9.2008, the Court passed the following order:
The case is fixed for orders/judgment today, but the perusal of the file discloses that the requisite court fee as per the order dated 24.10.2005 has not been paid by the plaintiff till date. Thus, he is directed to make good the deficiency in the court fee on or before 20.9.2008.
9. However, plaintiff immediately moved an application under Order 47 Rule 1, CPC, which stood dismissed in terms of impugned order dated 26.9.2008.
10. It is the plaintiff's contention that since his application for withdrawal of relief of permanent injunction stood allowed by the Court on 20.3.2006, hence the Court ought not to have directed him to pay the court fee for the said relief, in terms of earlier order dated 24.10.2005. It is the plaintiff's assertion that the order dated 26.9.2008 was passed in ignorance of earlier order dated 21.2.2006. The Court below failed to take cognizance of the fact that the plaintiff's prayer was squarely covered under the provisions of Schedule II, Article 13 and not Section 7 of the H.P. Court Fee Act, 1968 (hereinafter referred to as the Court Fee Act).
11. I have heard the learned Counsel for the parties and perused the record.
12. The relevant provisions of the Court Fee Act, are reproduced as under:
3. Levy of fees in the High Court. The fees payable for the time being to the clerks and officers of the High Court or chargeable in that court under No. 9 of the First, and Nos. 7, 10, 11, 16 and 17 of the Second Schedule to this Act annexed shall be collected in the manner hereinafter appearing.
7 Computation of fees payable in certain suits. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:.
(iv) In suits:
(a) ...
(b) ...
(c) for a declaratory decree and consequential relief.-to obtain a declaratory decree or order, where consequential relief is prayed;
(d) for an injunction.-to obtain an injunction ;
(e) ...
(f) ...
13. In all such suits the plaintiff shall state the amount at which values the relief sought:
Provided that the minimum court-fee in each case shall be thirteen rupees;
Provided further that in suit coming under Sub-clause (c), in cases here the relief sought is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by paragraph (v) of this section.
Article 13, second Schedule, amended w.e.f. 13.1.2005 provides that a Plaint or memorandum of appeal in a suit; (i) to alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or of any Revenue Court; (ii) to alter or cancel any entry in a register of the names of the proprietors of revenue paying estates; (iii) to obtain a declaratory decree where no consequential relief is prayed; (iv) to set aside an award; (v) to set aside an adoption; and (vi) every other suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act, the Court fee payable is ninety eight rupees which prior to amendment was nineteen rupees and fifty paise.
14. To ascertain as to whether the plaintiff's suit falls within the ambit and scope of Section 7 or the second Schedule, Article 13 of the Court Fee Act the pleadings made in the plaint needs to be examined.
15. It cannot be disputed that if plaintiff's suit is simplicitor for a relief of declaration than the plaintiff is required to pay court fee as is stipulated in the second Schedule, Article 13, but, if it is found that the plaintiff's suit falls within the scope of Section 7 of the Court Fee Act, then the plaintiff is necessarily required to pay the court fee as stipulated therein. In the plaint the plaintiff has pleaded that on the suit land plaintiff raised construction in the year 1984 when the defendant never informed him that any permission was required for carrying out development or for change of use of land. Since the defendant did not raise any objection when the plaintiff raised the construction thereupon, it is now estopped from raising any objection at the belated stage in view of their acts, deeds, conducts and acquiescence. The plaintiff has further pleaded that '..the defendant has already demolished two buildings in the said area illegally and without any right and it is apprehended that the defendant may cause further damage to the buildings constructed in the said area prior to the year 1992 without permission of the defendant'.further that the respondent/defendant has no right to take any action under the provision of Himachal Pradesh Town and Country Planning Act including the demolition of the building in the aforesaid area and since the defendant has failed to accede to the request of the plaintiff and is still threatening to take action under the provision of Himachal Pradesh Town and Country Planning Act, the plaintiff is left with no other alternative except to file the suit for declaration and injunction restraining the defendant from taking any action under the provision of Himachal Pradesh Town and Country Planning Act, 1977 in the area of Village Badhai (Kachhi Ghati), Pargana Jhajhot, Tehsil and District Shimla, H.P. and from demolishing any construction in pursuance to the same including the building of the plaintiff. Since the acts of the defendants are illegal and without any right and in case the injunction is not granted, the plaintiff would suffer irreparable loss and injuries besides the multiplicity of litigation and the defendant would succeed in illegally demolishing the construction in the said village.
16. The plaintiff has further prayed for the following reliefs:
It is, therefore, prayed that a decree for declaration to the effect that no permission was required from the defendant to change the user of the land or carrying out any development of the land in village Badhai (Kachhi Ghati), Tehsil and District Shimla, H.P. as per the provision of Section 16 of the H.P. Town and Country Planning Act, 1977 and that the defendant has no right to take any action against the construction in the said area under the provision of H.P. Town and Country Planning Act, 1977. Permanent prohibitory injunction restraining the defendant from demolishing any construction in pursuance to the provision of H.P. Town and Country Planning Act, 1977 in Village Badhai (Kachhi Ghati) including the construction of the plaintiff be also passed in favour of the plaintiff and against the defendant and the defendant be restrained from taking any action in the said village under the H.P. Town and Country Planning Act, 1977. Any other relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also kindly be granted in favour of the plaintiff and against the defendant.
17. No doubt, in terms of order dated 21.2.2006 by allowing of the plaintiff's application under Order 23 Rule 1, CPC the Court below simply permitted the plaintiff to withdraw the relief of injunction, but however, the fact remains that the plaintiff did not withdraw the averments with respect to the relief of injunction.
18. The Apex Court in S.Rm.Ar.S.Sp. Sathappa Chettiar v. S.Rm.Ar.Rm. Ramanathan Chettiar AIR 1958 SC 246, has held that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleadings in the written statement or final decision of the suit on merits. The material allegations contained in the plaint, as noticed hereinabove, taken in totality would only reveal that the plaintiff's suit in effect is for declaration and injunction. In the garb of declaration, the plaintiff, in effect is now seeking a relief of injunction and this ingenuity cannot be permitted to defeat the provisions of the Court Fee Act. The plaintiff's case squarely falls within the scope of Section 7(iv)(c) of the Court Fee Act and not Article 13 of the second schedule of the Act. This Court in Kanwar Partap Singh v. Minakshi Devi and Ors. 1989 (1) Sim.L.C. 107, while dealing with the suit property being a house in which declaration and injunction was prayed for, held that the suit squarely fell within the ambit of Sub-clause (iv) of Section 7 of the Court fee Act.
19. For the purpose of valuation of the suit and jurisdiction of the Court, the plaintiff has pleaded as under:
6. That the value of the suit for the purpose of jurisdiction for relief of declaration is fixed at Rs. 5.50 lakhs the market value of the property and for the purpose of jurisdiction the same is fixed at Rs. 200/- and a fixed court fees is affixed on the plaint. The value of the suit for the purpose of jurisdiction for the relief of injunction is fixed at Rs. 5.0 lakhs and the value for the jurisdiction the same is fixed at Rs. 130/- and requisite court fees is affixed on both the reliefs claimed.
20. The Court below in my view rightly held that the bare perusal of the same (para 6) would show that it is contradictory and not happily worded. The following findings in this regard are upheld with approval:
To my mind the contention of the learned Dy. DA holds the force and deserves to be upheld. In Cooperative Forest Societies case (cited supra), it was held that the value as determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same as per Section 8 of the suits Valuation Act, 1887. It is not the case of the plaintiff/applicant that the value of the suit for the purpose of jurisdiction for the grant of a decree of declaration has been fixed by law. Therefore, once the plaintiff has opted to fix the value for the suit for the purpose of jurisdiction for the grant of decree of declaration at Rs. 5.0 lacs, the same is to be taken as the value of the suit for the purpose of computation/payment of court fee. In these circumstances, it can be safely said that proper court fee has not been affixed by the applicant/plaintiff on the plaint.
21. The plaintiff himself has valued the suit at Rs. five lac and fifty thousand and as such has to pay court fee accordingly. In view of the aforesaid, I find no error, illegality or perversity in the impugned order and the same is upheld. The issue as to whether the plaintiff's simplicitor suit for declaration is maintainable and relief can be granted or not, under the provisions of Section 34 of the Specific Relief Act, 1963 has not been gone into and it shall be open for the parties to urge the same before the concerned Court.
22. The record reveals that without paying proper court fee the plaintiff has continued to enjoy the protection of the interim order for almost 14 years. In the facts and circumstances of the case, the plaintiff is directed to make good the deficiency in court fee in terms of order dated 17.9.2008 on or before 15.6.2009. The Court is also directed to decide the matter at the earliest.
23. With the aforesaid observations, the appeal is dismissed so also the pending application.
24. The parties through their learned Counsel are directed to appear before the Court below on 5.6.2009. The Registry is directed to immediately send the record.