V.S. Balasubramanyam S/O Late V.S. Shesha Iyer and Smt. Kalavathi W/O V.S. Balasubramanyam Vs. L.K. Trust Rep. by Its Trustee K.L. Swamy, - Court Judgment

Excerpt:
- section 24: [h.n.nagamohan das, j] court-fee in respect of suits for declaration - scope of clauses (b) and (d) plaintiff sought declaration that they are not bound by any arrangement made between defendants inter se pertaining to suit schedule properties - held, any type of declaration with consequential injunction cannot be said to be falling under clause (b). relief of declaration by which neither possession is prayed nor any consequential relief of injunction sought, falls under clause (d). injunction sought by plaintiffs also not consequential to aforesaid declaration. relief sought falls under clause (d). court-fee is to be determined accordingly. - declaration that the loans borrowed by the first defendant from the 5th defendant mortgaging the ltems 7 to 14 of the plaint schedule properties as well as the consequential decree obtained by the 5th defendant in o. the court below is clearly in error in holding the same as incorrect and improper and it is order impugned herein is liable to be set aside.orderh.n. nagamohan das, j.1. petitioners are the plaintiffs and respondents are the defendants before the trial court. in this judgment for convenience the parties are referred to their status before the trial court. plaintiffs filed a suit against the defendants before the trial court for the following reliefs:(a) wherefore, the plaintiffs pray that this hon'ble court may be pleased to declare that they are not bound by any arrangement made or documents entered into in between defendants interse pertaining to the suit schedule properties.(b) this hon'ble court may be pleased to pass a decree for mandatory injunction directing the defendants to demolish the construction put up on the suit schedule property;(c) this hon'ble court may be pleased to pass a decree for mandatory injunction restraining the defendants or anybody claiming under the defendants from entering into schedule property.(d) there may be a decree for permanent injunction directing the defendants not to alienate or alter whole or any portion of the suit schedule properties.(e) there may be a decree for permanent injunction restraining the defendants or anybody claiming under them from interfering with possession of suit schedule property.2. the suit filed by the plaintiffs came to be numbered as f.r. 7779/2008 and the office of the trial court raised objections stating that the prayer of the plaintiff is for declaration and consequently injunction in respect of an immovable property and therefore, the plaintiffs are liable to pay court fee as required under section 24(b) of the karnataka court fees and suits valuation act (for short 'the act'). to this office objection, learned counsel for the plaintiffs submitted that the relief of declaration is valued under section 24(d) of the act at rs. 1000/- and a court fee of rs. 25/- is paid on the plaint and the same is in accordance with law. the trial court after hearing the arguments passed the impugned order upholding the office objections and directing the plaintiffs to pay court fees as per section 24(b) of the act. hence this writ petition.3. during the pendency of the writ petition, learned counsel for the plaintiffs filed a memo on 27.5.2009 stating that he may be permitted to withdraw prayer (d) in the plaint for a decree of permanent injunction directing the defendants not to alienate or alter whole or any portion of the suit schedule properties. on 28.5.2009 learned counsel for the defendants submitted that he has no objection to allow the memo. accordingly, vide order dated 28.5.2009, this court allowed the memo filed by the plaintiffs permitting to withdraw prayer (d) in the plaint. now prayer no. (a), (b) and (c) remain on the plaint.4. the first prayer in the suit is to declare that plaintiffs are not bound by any arrangement made or documents entered into between the defendants interse pertaining to the suit schedule properties. according to the learned counsel for the plaintiffs this prayer falls under section 24(d) of the act and the court fee paid on the plaint as correct. on the other hand, learned counsel for the defendants contend that nature of declaration and injunction sought in the plaint falls under section 24(b) of the act. it is useful to extract the entire section 24 of the act and the same is as under:24. suits for declaration: - in a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25,:(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees one thousand, whichever is higher;(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand, whichever is higher,(c) xxxxx(d) in other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher.5. there is no dispute in this case that the plaintiffs are not seeking declaration of title in the plaint schedule immovable property. plaintiffs contend that they are in possession of plaint schedule property. the plaintiffs are only seeking declaration that they are not bound by any arrangement or documents entered into between the defendants interse pertaining to the suit schedule property. the plaintiffs are not seeking any consequential relief of injunction. on the other hand the nature of injunction prayed in the plaint is not consequential to the nature of declaration. the plaintiffs prayed for mandatory injunction and other reliefs are valued separately and separate court fee is paid. therefore the nature of declaration sought for by the plaintiffs do not fall under section 24(b) of the act. on the other hand, the nature of declaration sought for by the plaintiffs falls under section 24(d) of the act. the trial court committed an error in holding that the prayer in the plaint falls under section 24(b) of the act.6. the contention of learned counsel for defendants that any type of declaration with consequential injunction falls under section 24(b) of the act is unacceptable to me. a reading of section 24(b) of the act specifies that where the prayer is for declaration and consequential injunction with reference to an immovable property, the fee shall be computed on one-half of the market value of the property or on rupees one thousand whichever is higher. even if the prayer is only for declaration with reference to immovable property without there being consequential relief of injunction the same falls under section 24(b) of the act if the prayer is for declaration with reference to an immovable property and the prayer for injunction is not consequential to the declaration then also the prayer falls under section 24(b) of the act. if the prayer for injunction is independent of declaration then a separate court fees is to be paid on the prayer for injunction. if the prayer of injunction is consequential to the declaration with reference to an immovable property, then there is no need for payment of separate court fee on the relief of consequential injunction. therefore, there is no substance and merit in the contention of the learned counsel for defendants that any type of declaration with consequential injunction falls under section 24(b) of the act.7. this court in master k.p. ponnappa and anr. v. k.p. poovaiah and ors. : 2000(6) kar. l.j. 275 considered the scope of section 24(d) of the act. in ponnappa's case, the nature of declaration prayed by the plaintiffs is as under:declaration that the loans borrowed by the first defendant from the 5th defendant mortgaging the ltems 7 to 14 of the plaint schedule properties as well as the consequential decree obtained by the 5th defendant in o.s. no. 139/1987 on the file of this hon'ble court, are not binding on the plaintiffs and their interest in items 7 to 14 of the plaint schedule properties.the plaintiffs valued the above relief under section 24(d) of the act and paid court fee accordingly. this court held as under:sub-clause(d) of section 24 makes it manifestly clear that the court fee payable in respect of the relief of declaration by which neither possession of the property is prayed nor any consequential relief of injunction with respect thereto is sought, it shall be computed on the amount at which the relief sought is valued in the plaint or rupees one thousand which ever is higher. therefore, the additional relief of declaration added in the plaint by amending it squarely falls within the purview of section 24(d). this relief of declaration is valued in the plaint at rupees one thousand and accordingly, the court fee thereon was computed and paid as required by section 24(d) the relief thus valued and court fee computed thereon is therefore correct and proper. the court below is clearly in error in holding the same as incorrect and improper and it is order impugned herein is liable to be set aside.8. i am in respectful agreement with the view taken in master k.p. ponnappa's case. therefore, the valuation made by the plaintiffs under section 24(d) of the act is in accordance with law. consequently, the impugned order passed by the trial court is liable to be set aside.for the reasons stated above, the following:

Judgment:
ORDER

H.N. Nagamohan Das, J.

1. Petitioners are the plaintiffs and respondents are the defendants before the Trial Court. In this judgment for convenience the parties are referred to their status before the Trial Court. Plaintiffs filed a suit against the defendants before the Trial Court for the following reliefs:

(a) Wherefore, the plaintiffs pray that this Hon'ble Court may be pleased to declare that they are not bound by any arrangement made or documents entered into in between defendants interse pertaining to the suit schedule properties.

(b) This Hon'ble Court may be pleased to pass a decree for mandatory injunction directing the defendants to demolish the construction put up on the suit schedule property;

(c) This Hon'ble Court may be pleased to pass a decree for mandatory injunction restraining the defendants or anybody claiming under the defendants from entering into schedule property.

(d) There may be a decree for permanent injunction directing the defendants not to alienate or alter whole or any portion of the suit schedule properties.

(e) There may be a decree for permanent injunction restraining the defendants or anybody claiming under them from interfering with possession of suit schedule property.

2. The suit filed by the plaintiffs came to be numbered as F.R. 7779/2008 and the office of the Trial Court raised objections stating that the prayer of the plaintiff is for declaration and consequently injunction in respect of an immovable property and therefore, the plaintiffs are liable to pay court fee as required under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act (for short 'the Act'). To this office objection, learned Counsel for the plaintiffs submitted that the relief of declaration is valued under Section 24(d) of the Act at Rs. 1000/- and a court fee of Rs. 25/- is paid on the plaint and the same is in accordance with law. The Trial Court after hearing the arguments passed the impugned order upholding the office objections and directing the plaintiffs to pay court fees as per Section 24(b) of the Act. Hence this writ petition.

3. During the pendency of the writ petition, learned Counsel for the plaintiffs filed a memo on 27.5.2009 stating that he may be permitted to withdraw prayer (d) in the plaint for a decree of permanent injunction directing the defendants not to alienate or alter whole or any portion of the suit schedule properties. On 28.5.2009 learned Counsel for the defendants submitted that he has no objection to allow the memo. Accordingly, vide order dated 28.5.2009, this Court allowed the memo filed by the plaintiffs permitting to withdraw prayer (d) in the plaint. Now prayer No. (a), (b) and (c) remain on the plaint.

4. The first prayer in the suit is to declare that plaintiffs are not bound by any arrangement made or documents entered into between the defendants interse pertaining to the suit schedule properties. According to the learned Counsel for the plaintiffs this prayer falls under Section 24(d) of the Act and the court fee paid on the plaint as correct. On the other hand, learned Counsel for the defendants contend that nature of declaration and injunction sought in the plaint falls under Section 24(b) of the Act. It is useful to extract the entire Section 24 of the Act and the same is as under:

24. Suits for declaration: - In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25,:

(a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees one thousand, whichever is higher;

(b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand, whichever is higher,

(c) Xxxxx

(d) In other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher.

5. There is no dispute in this case that the plaintiffs are not seeking declaration of title in the plaint schedule immovable property. Plaintiffs contend that they are in possession of plaint schedule property. The plaintiffs are only seeking declaration that they are not bound by any arrangement or documents entered into between the defendants interse pertaining to the suit schedule property. The plaintiffs are not seeking any consequential relief of injunction. On the other hand the nature of injunction prayed in the plaint is not consequential to the nature of declaration. The plaintiffs prayed for mandatory injunction and other reliefs are valued separately and separate court fee is paid. Therefore the nature of declaration sought for by the plaintiffs do not fall under Section 24(b) of the Act. On the other hand, the nature of declaration sought for by the plaintiffs falls under Section 24(d) of the Act. The Trial Court committed an error in holding that the prayer in the plaint falls under Section 24(b) of the Act.

6. The contention of learned Counsel for defendants that any type of declaration with consequential injunction falls under Section 24(b) of the Act is unacceptable to me. A reading of Section 24(b) of the Act specifies that where the prayer is for declaration and consequential injunction with reference to an immovable property, the fee shall be computed on one-half of the market value of the property or on rupees one thousand whichever is higher. Even if the prayer is only for declaration with reference to immovable property without there being consequential relief of injunction the same falls under Section 24(b) of the Act If the prayer is for declaration with reference to an immovable property and the prayer for injunction is not consequential to the declaration then also the prayer falls under Section 24(b) of the Act. If the prayer for injunction is independent of declaration then a separate court fees is to be paid on the prayer for injunction. If the prayer of injunction is consequential to the declaration with reference to an immovable property, then there is no need for payment of separate court fee on the relief of consequential injunction. Therefore, there is no substance and merit in the contention of the learned Counsel for defendants that any type of declaration with consequential injunction falls under Section 24(b) of the Act.

7. This Court in Master K.P. Ponnappa and Anr. v. K.P. Poovaiah and Ors. : 2000(6) Kar. L.J. 275 considered the scope of Section 24(d) of the Act. In Ponnappa's case, the nature of declaration prayed by the plaintiffs is as under:

Declaration that the loans borrowed by the first defendant from the 5th defendant mortgaging the ltems 7 to 14 of the plaint schedule properties as well as the consequential decree obtained by the 5th defendant in O.S. No. 139/1987 on the file of this Hon'ble Court, are not binding on the plaintiffs and their interest in Items 7 to 14 of the plaint schedule properties.

The plaintiffs valued the above relief under Section 24(d) of the Act and paid court fee accordingly. This Court held as under:

Sub-clause(d) of Section 24 makes it manifestly clear that the Court fee payable in respect of the relief of declaration by which neither possession of the property is prayed nor any consequential relief of injunction with respect thereto is sought, it shall be computed on the amount at which the relief sought is valued in the plaint or rupees one thousand which ever is higher. Therefore, the additional relief of declaration added in the plaint by amending it squarely falls within the purview of Section 24(d). This relief of declaration is valued in the plaint at rupees one thousand and accordingly, the Court fee thereon was computed and paid as required by Section 24(d) the relief thus valued and Court fee computed thereon is therefore correct and proper. The Court below is clearly in error in holding the same as incorrect and improper and it is order impugned herein is liable to be set aside.

8. I am in respectful agreement with the view taken in Master K.P. Ponnappa's case. Therefore, the valuation made by the plaintiffs under Section 24(d) of the Act is in accordance with law. Consequently, the impugned order passed by the Trial Court is liable to be set aside.

For the reasons stated above, the following: