IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.) MISCELLANEOUS APPEAL N0. 1 ^ OF 201oStn9l8 "^, APPELLANT Plaintiff Khublal, S/o Late Johrik Ram Sahu, aged about 49 years, R/o Station [^y^,^\ Para Dhamtari, Audyogic Ward ^\)s'^ \t^ ''"C^^^sQ^ Dhamtari, Tahsil and District Dhamtari (C.G.) ^^'^^ •"^..-•- RESPONDENTS Defendants VERSUS 1. Shantilal, aged about 45 years, S/o Lakhanlal; . 2. Sumitra, aged about 40 years, W/o Shantilal; 3. Gajanand, aged about 35 years, S/o Lakhanlal; ,/'' »N() 4. Nand Kumar, aged about 32 years, S/o Lakhanlal; 5, Shyambai, aged about 60 years, W/o Lakhanlal; 6. Shyamdas, aged about 55 years, S/o Dhansai. All are Resident of Station Para, Audyogic Ward Dhamtari, Tahsil and District Dhamtari (C.G.) Respondent No. 3 to 5 C/o Shantilal S/o Lakhanlal. ^"- / 8. State of Chhattisgarh, Through: the Collector, Dhamtari (C.G.) MISCELLANEOUS APPEAL UNDER ORDER 43 RULE 1 U OF THE CODE OF CIVIL PROCEDURE ^ ^^;^^^?;y^.^.J.^^^^,.^^:^s^^ • •^^:~^^^^^s!'?^s. l^lliiKBSilSSK HIGH COURT OFCHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal No.10 of 2010 ! ' "">MNiL Khublal versus Shantilal and others .,.:. U S Li *-.^ .' ^ ^^oUu^ U s ORDER Postfor 29-6-2010 Sd/- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal No.10 of2010 Appellant Respondents versus Khublal Shantilal and others Present: Shri P.P.Sahu, counsel forthe appellant. Smt. Fouzia Mirza,counsel for respondents No.1 to 6. Shri Ajay Dwivedi, Deputy Government Advocate for the State. ?yt:-:;"-;uanc-:"-^!:: AoD€p31 No-10 ot'2010 Miscellaneous Appeal under Order 43 Rule 1 (u) of the Code of Civil Procedure. 1908 ORDER (Passed on At-^une, 2010) This is plaintiff's appeal under Order 43 Rule 1 (u) of the Code of Civil Procedure, 1908 challenging the order of remand passed by the first appellate Court with a direction to the trial Court to obtain an application for amendment in the pleadings by the plaintiff and directing him to make pleadings about the market value of the property in the year 2004 and thereafter value the suit for declaration, permanent injunction and possession and pay Court-fees according to such valuation. 2. The plaintiff preferred a suit for declaration, permanent injunction and possession with respect to the suit property bearing Sheet No. 15/2 1 Khasra No.261 /8 area 1 587 Sq.Ft. paying land revenue at Rs. 1.28 'aise situated at Stationpara, Dhamtari. In paragraph 8 of the plaint, ^ the plaintiff valued the suit at Rs.1,000/- for declaration, at Rs.1,000/- for permanent injunction and at Rs.85/- (twenty times of the land revenue of Rs.4.75) for possession. The defendants, in their written statement, stated that the suit has not been valued properly and the land not being agricultural land, it should have been valued as per the market value, which is Rs.15 - 20 Lakhs on the date of the filing of the suit and thus the suit is outside the pecuniaryjurisdiction ofthe Court. 3. The trial Court, while decreeing the suit by judgment and decree dated 9-4-2009, decided issue No.4 regarding valuation in paragraph 13 to hold that sjnce the plaintiff has submitted the Kisan Kitab (Agriculturist's Book) as Ex.P-1 and Ex.P-8, which shows that the land is assessed for payment of land revenue and since the defendants have failed to submit any evidence or document to demonstrate the market value, the said issue is decided in favourof the plaintiff to hold that the suit is properly valued. 4. The first appellate Court, by the impugned judgment and decree dated 6-1-2010, has held that the land being diverted land it should be valued as per its market value in accordance with Section 7(v) of the Court-fees Act, 1870 (henceforth 'the Act, 1870') and proper Court-fees should have been paid thereon. The first appellate Court has directed the plaintiff to amend his plaint, make separate valuation for declaration, permanent injunction and possession as per the market value of the plot in the year 2004 and pay admissible Court-fees on such valuation. The trial Court has been directed to give opportunity to ^the parties to lead evidence in this regard, hear them finally and decide INK. jj/ ^^wff^' ^> <u the matter and also that if the suit is found to be outside the pecuniary jurisdiction of the Court, the trial Court shall act in accordance with law. 5. Learned counsel for the appellant has argued that the impugned order of remand is per se illegal as the plaintiff cannot be directed to value the plaint in a particular manner by amending the plaint and that too at the appellate stage. He also submitted that the order of remand is contrary to the provisions of Order 41 Rule 23 of theCode of Civil Procedure, 1908, as such an order of remand cannot be passed without first setting aside the decree on the merits. 6. Opposing the appeal, learned counsel for respondents No.1 to 6 has argued that the order passed by the first appellate Court does not call for any interference and that the trial Court had committed an error by deciding issue No.4 in favour of the plaintiff. It is put-forth by respondents No.1 to 6 that since the land is diverted, the plaintiff should have paid Court-fees on the market value of the land and the appellate Court has not committed any illegality by directing the plaintifF to amend the plaint and pay adequate Court-fees. 7. In the present case, the'suit is f6rudeclaration,permanent injunction and possession. There appears to be no dispute about the valuation made by the plaintiff for declaration and permanent injunction, which has been made in accordance with Section 7(iv)(c) of the Act, 1870. The objection raised by the defendants was with regard to the valuation of the suit for seeking the relief of possession for which Section 7(v) of the Act, 1870 is applicable. Section 7(v) of the Act, {1870 as apRlicablein the ^State,of^Qhhattisgarhis reproduced ^R^ i ^>, j \1^ • 4 hereunder (Clause (v) of Section 7 of the Act, 1870 has been substituted for its application in the State of Madhya Pradesh/Chhattisgarh by Madhya Pradesh/Chhattisgarh Act No.4 of 1976): "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:- XXX XXX XXX XXX XXX (v) for possession of lands, houses and gardens.- in suits for possession of lands, houses and gardens, according to the value of the subject matter; and such value shall be deemed to be - where subject matter is land, and (a) such land is assessed to land revenue orland on-:;"?-'.-uori os h^es pavaDle fn cert-nn s^1^' revenue is payable in respect of such land- twenty times the land revenue so assessed or so payable; (b) such land forms a part of land which is assessed to land reyeriye pr in respect of which land revenue is payable twenty times of the land revenue proportionately worked out forsuch partofland; (c) such land is not assessed to land revenue- twenty times pfthe land reyenye worked out at the rate of two rupees per acre:" 8. The requirement of payment of Court-fees on the market value of a land, which found place in Clause (y),ofSectipn,7 oftheAct, 1870 prior to its amendment by the Madhya Pradesh/Chhattisgarh Act No.4 of 1976 has been done away with by the Madhya Pradesh/Chhattisgarh amendment as would be seen in the provision reproduced above. Thus, in its application to the'5tate;ofChhattisgarh, s> the only requirement is whether the land for which the suit has been filed for possession is assessed to land revenue or not. If it is assessed to land revenue, Section 7(v) of the Act, 1870 would be applicable and the plaintiff is not required to state the market value of the land even if it is a diverted piece of land. There is nothing in the amended Section 7(v) of the Act, 1870 to distinguish the land being agricultural or diverted. The determining factor is, as mentioned above, as to whether or not it is assessed to land revenue. 9. The plaihtiff/appellant,' havihg valuea the 'suit twehty times of the land revenue assessed for the suit land, it cannot be said that the valuation of the suit was not proper. 10. In Sri Rathnavarmaraja vs. Smt.^mla, A!B 1961 SC 1299, the Hon'ble Supreme Court has held in paragraph 2 ofthe report thus: "2. The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weaponrofdefeneei-tocbbstructtthetriallofan action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the ^^U^^.^'Ul^cU^ ^^ .^^H._Y/f.^._A.lK.;i^O^ ^^_^:. -. High Cdurt in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking fo'invok^lhe' revisionafjuri^Jictionofthe 1-ligh Court 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. How by an order relating to the .. :J l.1 i[ ;;' \; ^ ^ F(.; ::. c ^.;' t rt. o r6 vi sion^i • j 14us cj i ct i'-) f i 3u 3^^": l' 1 ^ adequacy of the court-fee paid by the plaintiff, the defendantmay feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under S.115 of the Code of Civil Procedure is strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superiorcourts by appeal or in revision against'the order of court-fee payable on the plaint. appeal or in revision against'the order adjudging payment 11. A similar view has been taken by a Single Bench of this Court vide order dated 18-1-201 OLin,Civil f^|w§iqn^rsl(:L49/20p7^/?ay/pa/vs. Smt. Mumtaz Begum and others). 12. In view of the above, it is found that the finding recorded by the first appellate Court regarding improper valuation of the suit by the plaintiff is not in accordance with law. Consequently, the order of remand is also found to be illegal. The impugned judgment and decree, thus, deserves to be and is hereby set aside. 13. Since by the impugned order of remand, the learned first appellate Court has not decided the first appeal on merits, the matter is remitted back to the first appellate Court for deciding the appeal on merits. The miscellaneous appeal is allowed. There shall be no order as to costs. Sd/- Prashant Kumar Mishra Judge Gopal