C.R.DASH, J. W.P.(C ) NO.21896 OF 2010 (Decided on 10.05.2011) BIJAY KUMAR SAHOO ……….Petitioner. .Vrs. GOKULA BIHARI MOHANTY & FOUR ORS. ……….Opp.Parties. COURT FEES ACT, 1870 (ACT NO.7 OF 1870) – S.7 (xi) (cc). COURT FEES ACT, 1870 (ACT NO.7 OF 1870) – S.7 (xi). For Petitioner - M/s. Bipin Bihari Jena, J.Bhagat, T.K.Jena & D.Pradhan. For Opp.Parties - M/s. Iswar Ch. Dash, D.Nanda & P.Mohanty (for O.P.1) & M/s. L.Mishra, K.K.Jena & A.K.Jena (for proforma O.Ps. 2 to 5) C.R. DASH, J. Whether the valuation fixed for the purpose of jurisdiction and court fees by the Court in which the plaint was presented, is final and binding between the parties, and whether the defendant/defendants has / have any rights or locus standi to dispute such valuation are the questions that arise for consideration in the present writ petition. 2. The petitioner, who is defendant no.5 in the Court below, proceeds on the premises that the valuation so fixed is not final and the defendant has right to question the same when such valuation involves also the question of jurisdiction. Opposite party no.1, who is the plaintiff in the Court below, on the other hand, proceeds on the premises that the valuation so fixed in view of Section 12 of the Court Fees Act, 1870 (‘Act’ for short) is final and a defendant in any event has no locus standi to challenge the same. 3. The present opposite party no.1 is the plaintiff in the Court below. The defendants, who are proforma opposite parties 2 to 5 in this writ petition, and the present petitioner (defendant no.5 in the Court below) are tenants and sub-lessees in the suit premises. Initially the plaintiff-opposite party no.1 filed the suit for permanent injunction. Later on he sought for the relief of recovery of possession by way of amendment of the plaint. Learned Civil Judge (Jr. Division), First Court, Cuttack (‘learned court below’ for short) rejected the petition for amendment vide order dated 05.11.2005. That order was challenged before this Court in W.P.(C) No.3154 of 2006. This Court disposed of the said writ petition with the following observation :- “In the aforesaid scenario, the order dated 05.11.2005 is set aside and the plaintiff, who is the petitioner in W.P.(C) No.3154 of 2006, is permitted to amend his * written statement as per the Schedule subject to payment of Rs.300/- (three hundred) as cost to each set of the defendants, which shall be paid within three weeks, but then the Court below shall assure that proper court fees is paid in consonance with the valuation of the suit property, which is sought to be recovered.” (* To be read as plaint) 4. As per the direction of this Court in W.P. (C) No.3154 of 2006, the plaintiff- opposite party no.1 valued the suit at Rs.9010/- (nine thousand and ten) and paid the court fees worth Rs.1086.75 p. as per the office note of the concerned Court. The basis of the valuation of the suit for the purpose of jurisdiction and court fees is the amount of rent of the suit premises payable for the year next before the date of presenting the plaint. 5. The suit is one for recovery of possession of two tenanted premises, more fully described in the schedule of the plaint and permanent injunction against the defendants from entering upon the suit premises. The plaintiff, after amendment of the plaint, valued the suit at Rs.750/- on the ground that in respect of the two premises he is getting rent of Rs.1100/- + Rs.500/- out of which 50% of the rent due is appropriated towards the cost of the premises and the plaintiff is receiving 50% of the total monthly rent, i.e. Rs.500/- + Rs.250/- in respect of the two suit schedule premises. 6. Defendant no.5 (present petitioner) raised objection and sought for correction of the office note on the following grounds :- (I) If the rent payable for the year next before the date of presenting the plaint is taken into consideration, the amount of rent payable comes to Rs.1100/- + Rs.500/- x 12= Rs.19,200/-, which takes the suit out of the pecuniary jurisdiction of the Civil Judge (Junior Division); (II) The suit should have been valued in accordance with section 7(v)(c) or section 7(v)(d) of the Court Fees Act instead of section 7(xi)(cc) of the said Act; and (III) The valuation is contrary to the observation in W.P. (C) No.3154 of 2006. 7. Learned trial court on thorough consideration of the materials on record and the plaint averments held that the type of the suit in question is one under section 7(xi)(cc) of the Court Fees Act and further held that the suit has been properly valued. 8. Mr. Bipin Bihari Jena, learned counsel for the petitioner, with all the vehemence at his command submits that if the total rent payable to the plaintiff in respect of the suit schedule premises for the year next before the date of presenting the plaint is taken into consideration, the valuation of the suit would be Rs.19,200/- and such a valuation would take the suit out of the pecuniary jurisdiction of the court. He, however, does not raise any dispute regarding the type of suit and in course of his argument accepts that the suit is one under Section 7(xi)(cc) of the Court Fees Act. To make his submission legally tenable Mr. Jena relies on the case of Prafulla Chandra Das and another v. Anem Bhengra @ Munda and others; 2009(II) OLR 902, Aruna Kumar Dwibedy v. 2 Nagendra Kumari Dwibedy and others; 2009(I) OLR 188 and M/s. PCL-STICCO Joint Venture v. National Highways Authority of India & Ors.; 2010 (II) OLR 356. In the case of M/s. PCL-STICCO Joint Venture v. National Highways Authority of India & Ors. and in the case of Aruna Kumar Dwibedi v. Nagendra Kumari Dwibedi (supra) this Court has ruled that the valuation put by the plaintiff must be reasonable and should have some nexus with the value of the subject matter of the suit and in case 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. In the case of Prafulla Chandra Das and another supra, this Court held that revision against orders regarding valuation lies only when it touches the jurisdiction of the Court. 9. Mr. Iswar Chandra Das, learned counsel for opp. party no.1 on the other hand submits that no revision or writ petition lies to question the valuation accepted by the court below as section 12 of the Court Fees act attaches finality to the order passed by the court below on the question of valuation and the defendant has no locus standi to question the valuation fixed by the competent court for the purpose of court fees and jurisdiction. He mainly relies on the case of Sri Rathnavarmaraja v. Smt. Vimla, AIR 1961 SC 1299, besides decision of this Court in Mahadeolal Choudhury v. Hareram Choudhury and other, 41,(1975) CLT 915 and Kora Rana v. Saibo Behera, AIR 1958 Orissa 81. 10. Hon’ble Supreme Court in the case of Nemi Chand and another v. Edward Mills Company Ltd. and another, A.I.R. 1953 S.C. 28, has ruled regarding the meaning and connotation of “finality” attached under Section 12 of the Court Fees Act to decision regarding valuation and court fees. Hon’ble Supreme Court, taking into consideration the provisions contained in Section 12 of the Court Fees Act and Order 7 Rule 11 of the Code of Civil Procedure, in paragraph-9, has observed thus :- “…An order rejecting a plaint is a decree as defined in S. 3 Sub-s.(ii) and is appealable as such. There is an apparent conflict between the provisions of the Code of Civil Procedure and the provisions of S. 12 which makes the order relating to valuation final and efforts to reconcile the provisions of the Court Fee Act and the Code have resulted in some divergence of judicial opinion on the construction of the Section …”. Taking note of Section 5 and Section 12 of the Court Fees Act, Hon’ble Supreme Court in the aforesaid judgment proceeded further and, in paragraph-10, held thus :- “…When the two Sections in the same Act relating to the same subject matter have been drafted in different language, it is not unreasonable to infer that they were enacted with a different intention and that in one case the intention was to give finality to all decisions of the Taxing Officer or the Taxing Judge, as the case may be, while in the other case it was only intended to give finality to questions of fact that are decided by a Court but not to questions of law. Whether a case falls under one particular Section of the Act or another is a pure question of law and does not directly determine the valuation of the 3 suit for purposes of Court Fees. The question of determination of valuation or appraisement only arises after it is settled in what class or category it falls.” (emphasis supplied, as the observation relates to Section 12 of the Court Fees Act, which is relevant in the context of the present discussion). Taking note of divergent views expressed by different Courts on the subject and making division of the decision on the question of valuation of the suit to question of law (when it relates to category of suit, which falls under one particular Section of the Court Fees Act or another) and question of fact (which is concerned with valuation or appraisement pure and simple), Hon’ble Supreme Court, in paragraph-11 of the judgment, proceeded to observe thus :- “It has been argued in some decisions that it is absolutely necessary to decide the category in which a case falls before assessing its value and therefore the determination of the question of category is necessarily involved in the determination of the valuation of the suit for purposes of court-fee. This argument, though plausible, does not seem, sound. The actual assessment of the value depends either on arithmetical calculations or upon a valuation by an expert and on the evidence led in the case, while the decision of the question of category is one of law and may well be said to be an independent question antecedent but not relating to valuation. The expression “valuation” interpreted in the ordinary meaning of “appraisement” cannot be said to necessarily include within its ambit the question of category which is a matter of law. The construction placed on this section by a long course of decisions is one which reconciles the provisions of the Court-fees Act with that of the Code of Civil Procedure and does not make those provisions nugatory and is therefore more acceptable than the other constructions which would make the provisions of either one or the other of these statutes nugatory. Perhaps it may be possible to reconcile the provisions of the two statutes by holding that the finality declared by S.12 of the Court-fees Act means that the parties cannot impugn such a decision by preferring an appeal but that it does not confer on such decisions a complete immunity from examination in a higher Court. In other words, S.12 when it says that such a decision shall be final between the parties only makes the decision of the Court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that. If a decision under S.12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers. Similarly, when a party thinking that a decision under S.12 is palpably wrong takes the risk of his plaint being rejected or suit dismissed and then appeals from the order rejecting the plaint or from the decree dismissing the suit but not from the decision on the question of court-fee; then it is open to him to challenge the interlocutory order even on the question of court-fee made in the suit or appeal. The word “finality” construed in the limited sense in which it is often used in statutes means that no appeal lies from an order of this character as such and it means no more than that”. (emphasis supplied) 4 About the status / position of a defendant in relation to the valuation of a suit for the purpose of jurisdiction and court fees, Hon’le Supreme Court, in paragraph- 13 of Sathappa Chettiar v. Ramanathan Chettiar, A.I.R. 1958 S.C. 245, observed thus :- “…the defendant or the respondent is usually not interested in such a dispute unless the question of payment of court fees involves also the question of jurisdiction of the court either to try the suit or to entertain the appeal….”. In the case of Sri Rathnavarmaraja v. Smt. Vimla, A.I.R. 1961 S.C. 1299 (on which learned counsel for opposite party No.1 places reliance), Hon’ble Supreme Court, in paragraph-2, held thus :- “…Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State … . …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 superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint …”. 11. Hon’ble Kerala High Court, in the case of Vasu v. Chakki Mani, A.I.R. 1962 Kerala 84, had the occasion to address the question raised by the defendant as to whether the court fees paid on the plaint is sufficient. The Kerala High Court, taking into consideration the decisions of Hon’ble the Supreme Court in all the aforesaid cases, had held thus :- “For the first, I read the recent decision of the Supreme Court in Rathnavarmaharaju v. Smt. Vimla, 1961 Ker LT (SC) 67 : (AIR 1961 SC 1299) as meaning that no revision will lie at the instance of a defendant for the simple reason that the adequacy or otherwise of the court-fee paid is not a matter in which he is interested unless, as observed in Sathappa Chettiar v. Ramanathan, AIR 1958 S.C. 245 at page 251, the question of court-fee “involves also the question of jurisdiction of the court either to try the suit or entertain the appeal”. Hence an erroneous decision on that matter cannot, unless jurisdiction is involved, invest him with a grievance entitling him to seek redress. (A complaint of over-valuation is understandable, for in the event of his losing, it will saddle the defendant with higher costs and higher court-fee for an appeal). In the case of a plaintiff or an appellant the position is different for he faces the danger of his suit or appeal being thrown out on the basis of the wrong decision. That was the case in Nemichand v. Edward Mills Co. Ltd., AIR 1953 SC 28 and the observation therein (at P.32 of the report) relied upon by the defendant, to the effect that where a decision on the question of court-fee suffers from a defect of jurisdiction the decision would be revisable by the High Court, read in that light, cannot mean that the High Court will entertain a revision at the instance of a person who has no legitimate grievance. True, a distinction is to be drawn between the question whether a suit falls under one section or another of the Court Fees Act, the question of category as it has been called, and the question whether the value of the subject matter has been properly assessed, the question of valuation pure and simple as it is often described. The former is a 5 pure question of law and in fit cases can be the subject-matter of revision; not the latter. True also that the question in 1961 Ker LT (SC) 67 : (AIR 1961 SC 1299) would appear to be one of valuation pure and simple but the reason given there, namely, that the defendant is not aggrieved, and the observations made, apply equally to a case where the alleged inadequacy arises through an error regarding category. So long as the error is not one affecting the jurisdiction of the court to try the suit, the defendant is not aflected thereby; and the distinction between an error regarding category and an error regarding valuation pure and simple is of no relevance in a revision by the defendant. " The case of Sri Rathnavarmaraja v. Smt. Vimla, A.I.R. 1961 S.C. 1299 (as quoted supra) was explained by the Hon’ble Supreme Court in Shamsher Singh v. Rajinder Prashad and others, A.I.R. 1973 S.C. 2384, and Hon’ble Supreme Court held that the ratio of the decision in the case of Sri Rathnavarmaraja (supra) was that “no revision on a question of court fee lay when no question of jurisdiction was involved”. Hon’ble Supreme Court in Shamsher Singh’s case referred to the decision of Kerala High Court in Vasu v. Chakki Mani (supra) and observed that Kerala High Court has correctly interpreted the view of the Supreme Court in Sri Rathnavarmaraja’s case (supra). 12. In Sujir Keshav Nayak v. Sujir Ganesh Nayak, A.I.R. 1992 S.C. 1526, the question that arose before Hon’ble Supreme Court was : “If the disclosure of valuation is in absolute discretion or opinion of the plaintiff or it can be objected to by the defendants and adjudicated upon by the Court and, if so, in what cases.” The aforesaid questions were left open in Sathappa Chettiar’s case (A.I.R. 1958 S.C. 245) supra. Hon’ble Supreme Court in the aforesaid case of Sujir Keshav Nayak took note of competency of the Court which “refers to jurisdiction territorial or pecuniary, of limited or unlimited limits”, scheme of the Code of Civil Procedure relating to filing of the suit and provisions contained in Section 15 of the Code, which provides that any suit shall be instituted in the Court of the lowest grade competent to try it, provisions of Order 7 Rules 10 and 11 of the Code, effect of objection by defendant/defendants in respect of valuation in suits pending in Court of limited pecuniary jurisdiction and effect of such objection in suit pending in court of unlimited pecuniary jurisdiction and laid down the law as under :- “ xx xx xx xx xx (1). When the question of court fees 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.” 6 13. Coming to the decisions relied on by learned counsel for the petitioner, this Court in Prafulla Chandra Das and another v. Anem Bhengra @ Munda and others, 2009 (II) OLR-902, has taken the same view as aforesaid and, in paragraph-13, has held “A revision against such orders regarding valuation lies only when it touches the jurisdiction of the Court.” The ratio in the case of Arun Kumar Acharya v. Nagendra Kumari Dwibedi and others, 2009 (I) OLR-188 and M/s. PCL-STICCO Joint Venture (supra), 2010 (II) OLR 356, however, are not relevant in the context of the discussion in the present case in as much as in those cases the issues involved are the option of the plaintiff to value the suit falling under Section 7 (iv)(c) of the Court Fees Act, limitation for the plaintiff to be on guard to see that the plaint is not demonstratively under-valued and authority of the Courts concerned (which also includes revisional and appellate Court) to revise the valuation in the event it is found that the valuation is arbitrary, unreasonable and the plaint is demonstratively under-valued. 14. Mr. Iswar Ch. Dash, learned counsel appearing for opposite party no.1 has relied on further on the case of Mahadeolal Choudhury v. Hareram Choudhury and others, 41 (1975) C.L.T. 915, wherein this Court in paragraph-8 of the judgment has reiterated referring to Sri Rathnavarmaraja v. Smt. Vimla (supra), what had been ruled by Hon’ble Supreme Court in the aforesaid case in respect of right / locus-standi of the defendant to question the valuation fixed by the competent Court in a case. It is pertinent to mention here that this Court in a First Appeal in the case of Mahadeolal Choudhury (supra) has ruled as above, and the question on court fee did not at all involved question of jurisdiction as the First Appeal arose out of a decree passed by a Court of unlimited pecuniary jurisdiction. This Court in the case of Kora Rana v. Saibo Behera and others, A.I.R. 1958 Orissa 81, has ruled that in view of Orissa Amendment in Section 10 (2) and 12 (2) of the Court Fees Act, a suit cannot be dismissed for non- payment of excess court fees, but the said fees is recoverable as an arrear of land revenue. The proposition, as decided by this Court in Kora Rana (supra) is not disputed and in any event if the Court having jurisdiction to try the suit, finds that there has been non-payment of proper court fees, the plaintiff cannot be non-suited for that. But, a case of non-payment of adequate court fees for intentional and improper valuation involving the question of jurisdiction of the Court of a limited pecuniary jurisdiction may be different. The decisions in the aforesaid cases, therefore, may not be relevant in the context of the present discussion. 15. The principles decided in all the aforesaid decisions and the discussion supra must have, by now, answered the questions posed at the out set. The discussion may be summed up as follows :- (1) The “finality” declared by Section 12 of the Act is limited to the extent that the order on the question of valuation for the purpose of jurisdiction and court fees is like any other non-appealable interlocutory order and no appeal lies from such an order. (2) Any mistake or vulnerability in the decision / order in view of the interdict in Rathnavarmaraja’s case (A.I.R. 1961 S.C. 1299) cannot be questioned by the defendant on the ground of any mistake or vulnerability in the decision itself or in the decision making process unless the question also involves jurisdiction of the Court to try the suit or entertain the appeal. 7 (3) In Courts of limited pecuniary jurisdiction, valuation assumes great importance and since under-valuation goes to the root of maintainability of the suit, a defendant is entitled to raise the objection irrespective of the nature of the suit when the valuation touches the question of jurisdiction. The distinction between error regarding category and an error regarding valuation pure and simple (as discussed supra in Nemi Chand’s case) is of no relevance in a revision by the defendant. (4) So long as the error is not one affecting the jurisdiction of the Court to try the suit or entertain the appeal, the defendant is not affected thereby and in suits filed in Court of unlimited pecuniary jurisdiction, the defendant may not be entitled to question the decision on the valuation. (The question of over-valuation may however be different). 16. Mr. B.B. Jena, learned counsel for the petitioner does not dispute the decision of learned Court below on the point of category of suit and fairly submits that the suit is one, which is to be valued under