IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 177 of 2011 For Approval and Signature:
HONOURABLE MS.JUSTICE HARSHA DEVANI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================= DILIPSINH DEVUBHA ZALA - Appellant(s) Versus KISHORBHAI RANCHHODBHAI THUMMAR & 5 - Defendant(s) ========================================= Appearance :
MR TUSHAR L SHETH for Appellant(s) : 1, MR SP MAJMUDAR / MR PP MAJMUDAR for Respondents : 1 - 6.
========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 20/07/2012 CAV JUDGMENT
1. This appeal under section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), the appellant has challenged the order dated 16.7.2011 passed by the learned Fourth Additional District Judge, Gondal below Exhibit-11 in Regular Civil Appeal No.68 of 2011 whereby the application has been allowed and the appeal preferred by the appellant herein has been dismissed.
2. The respondents herein (original plaintiffs) instituted a suit in the Court of the learned Second Additional Senior Civil Judge, Gondal being Special Civil Suit No.81 of 1999 contending that the land admeasuring Acres 2 – 02 Gunthas of survey No.19 of Village Jamvadi, which is running in the name of the defendant, is ancestral land and that the plaintiffs have a right therein by birth. It was further the case of the plaintiffs that the plaintiffs and the defendants are coparceners of the suit property and that despite the fact that the plaintiffs had four shares in the property, since the names of the defendants are running in the revenue record and possession is also with them, they are in the process of transferring the same in favour of others. It is in the aforesaid circumstances, the plaintiffs instituted the above referred suit seeking following reliefs:
(1) For a declaration that the plaintiffs have four shares in the land admeasuring Acres 2 – 02 Gunthas of survey No.19 of Village Jamvadi, which is running in the names of the defendants is ancestral land;
(2) Out of the land admeasuring Acres 2 – 02 Gunthas of survey No.19 of village Jamvadi, four shares be separated and peaceful and vacant possession be handed over to the plaintiffs and if possession is handed over to someone else, to order that the possession be handed back;
(3) For mesne profit for a period of three years prior to the date of institution of the suit in respect of the four shares of the plaintiffs in the suit property;
(4) For a permanent injunction restraining the defendants from in any manner selling, transferring or assigning the same or executing any sale deed or agreement in respect thereof and in case any such deed has been executed, to cancel the same and to restrain the defendants from selling, transferring, mortgaging, gifting or in any manner transferring the land in favour of a third party.
3. By a judgement and decree dated 28.11.2008 passed by the learned Second Additional Senior Civil Judge, Gondal, the suit came to be decreed in favour of the plaintiffs. Being aggrieved, the appellant – original defendant No.2 carried the matter in appeal before the learned Additional District Judge, Gondal. In the said appeal, the respondents – original plaintiffs filed an application at exhibit-11, contending that the plaintiffs had instituted the suit claiming their share in the suit property and had paid the court fees on the basis of 40% of the assessment as the suit lands are agricultural lands and that considering the value of the land, for the purpose of jurisdiction, the suit was valued at Rs.6 lakhs. Under section 15 of the Gujarat Civil Courts Act, 2005, there is a provision for appeal and as per section 15(2)(a), when the subject matter of appeal is less than five lakhs of rupees, there is a provision for appeal before the learned District Judge and in other cases, the appeal lies before the High Court under section 15(2)(b) of the said Act. The jurisdiction for an appeal is decided on the basis of value for jurisdiction as stated in the plaint and not on the basis of valuation for the purpose of court fees. In the facts of the present case, the value for the purpose of jurisdiction was Rs.6 lakhs and as such, in view of the provisions of section 15(2)(b) of the Gujarat Civil Courts Act, 2005, the appeal would lie before the High Court and as such, the said court had no jurisdiction to decide the appeal. Hence, the appeal is required to be dismissed on the ground of jurisdiction or in the alternative is required to be ordered to be returned.
4. Before the lower appellate court, on behalf of the appellant, reliance was placed upon section 8 of the Suits Valuation Act, 1887 which provides that in suits other than those mentioned therein, the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same. It was contended that since the plaintiff had assessed the amount of court fees at Rs.306.40 (15.32 x 20) by calculating twenty times the sum equal to survey assessment and had paid the court fees according to section 6(7) of the Bombay Court Fees Act, 1959 for the purpose of jurisdiction the plaintiffs ought to have valued the suit land as per section 6(vii) of the said Act and not according to the market value of the land. The lower appellate court held thus:
“10. From the rival contentions, it transpires that there is no dispute about total value of the property, but the main dispute is that for the purpose of jurisdiction, whether the value of the property is to be seen or valuation of the suit? As argued before this Court by the learned advocate for the plaintiffs, for the purpose of deciding as to where the appeal lies, he has relied upon the judgement reported in 2006 (1) – GLH – 171, at that time, i.e. on the date of filing of the suit, the pecuniary jurisdiction of the senior civil judge was exceeding Rs.20,000/-. The plaintiff paid court fees on his 1/3rd share of Rs.12,500/-. The suit was valued at Rs.37,000/- for the purpose of court-fees. He has also relied on Chamar Jivabhai Bechardas v/s. Chamar Harijan Keshardas reported in 1968 – GLR – 27, in which it is held that a suit for partition falls under Section 6(vii) of the Court Fees Act for the purpose of court fees. The valuation of the suit not falling under the Suit Valuation Act must depend on the general principles having regard to Section 24 of the Bombay Civil Courts Act, but at present Gujarat Civil Courts Act is applicable. Section 8 of the Suit Valuation Act provides that the valuation of the suit for the purpose of court-fees shall be the same as valuation for the purpose of jurisdiction in certain suits. But this is not applicable in the present appeal, because, Section 15 of the Gujarat Civil Court Act deals with the provision regarding appeals and it provides that the appeals. It provides that the appeals from decrees and orders passed by a court of senior civil judge in the original suits and proceedings of civil nature shall when the suit appeals are allowed by law, lie – (a) to the Court of District Judge of the district when the amount or value of the subject matter of the original suit is less than five lakhs of rupees or such other sum, as the High Court may from time to time specify; (b) to the High Court in other cases. It is crystal clear that from the Court Fees Act, the Suit Valuation Act and the decision of the Hon. Apex Court that the valuation for the purpose of jurisdiction and valuation for the purpose of court fees is different. The value of the subject matter is to be seen for the purpose of jurisdiction, hence, the arguments advanced by the learned advocate for the defendants cannot be accepted. I agree with the arguments advanced by the learned advocate for the plaintiffs that for the purpose of jurisdiction, the value of the subject matter is to be seen. In the present appeal, there is no dispute that the value of the property is more than Rs.5,00,000/-. In such cases, appeal would lie before the High Court, hence as the appeal would not lie before this Court, it requires to be dismissed for want of jurisdiction, hence, I pass the following order:
ORDER This application is allowed. The appeal is dismissed for want of jurisdiction.”
5. Mr. Tushar Sheth, learned advocate for the appellant submitted that at the relevant time when the suit came to be instituted, the provisions of the Bombay Court Fees Act, 1959 were applicable and invited the attention of the court to section 6 of the said Act, which makes provision for “Computation of fees payable in certain suits”. Referring to paragraph (v) of section 6 of the said Act, it was pointed out that under the said provision, in case of suits for possession of the land, houses and gardens, the court fee is required to be determined according to the value of the subject matter and such value is deemed, where the subject matter is a house or garden according to the market value of the house or garden and in case where the subject matter is land in terms of clauses (a), (b) or (c) thereof. Attention was invited to paragraph (vii) of section 6, which makes provision for share in joint property, and more particularly to the Explanation thereto, which says that for the purposes of the said paragraph, if the property in which a share is claimed consists of or includes any land assessed to land revenue for the purpose of agriculture; the value of such land shall be deemed to be the value as determined under paragraph (v) of the said section. It was submitted that in the present case, the suit has been instituted for a share in joint family property and as such, the present case would fall within the ambit of section 6(vii) of the Bombay Court Fees Act. Hence, for the purpose of arriving at the value of the land, by way of deeming fiction, the value has to be determined in terms of paragraph (v) of section 6 of the said Act. It was submitted that, accordingly, the plaintiffs had assessed the value of the land at twenty times the assessment and had paid the court fees accordingly.
5.1 Referring to the provisions of section 8 of the Suits Valuation Act, 1887, it was submitted that in the light of the said provision, in the present case also the value as determinable for the computation of court-fees and for the purpose of jurisdiction would be the same and as such, the lower appellate court was not justified in holding that as for the purpose of jurisdiction the land was valued at more than rupees five lakhs, the said court did not have the jurisdiction to decide the appeal.
5.2 In support of his submissions, the learned advocate placed reliance upon a decision of a Division Bench of this court in the case of Maliben Kamabhai Harijan v. LRs of Late Jagjivan Nanji, 2003 (3) GLH 787, wherein the court held that on a conjoint reading of the provisions of the Bombay Court Fees Act, that is, section 6(iv)(j) and sections 4 and 8 of the Suits Valuation Act clearly shows that when the plaintiff determines or fixes his own valuation when the relief is not susceptible of monetary evaluation, valuation fixed by him for the purpose of court fees would be the valuation for the purpose of jurisdiction also. It was submitted that the said decision would be squarely applicable to the facts of the present case and as such, in the light of the provisions of section 8 of the Suits Valuation Act, the jurisdiction to try the suit would be on the basis of the valuation for the purpose of court fees which would govern the valuation for the purpose of jurisdiction also. Accordingly, the jurisdiction to try the suit would be on the basis of valuation fixed by the plaintiffs for the purpose of court fees which admittedly is less than rupees five lakhs and as such, the learned Additional District Judge had the jurisdiction to decide the appeal and was not justified in dismissing the same for want of jurisdiction.
5.3 Reliance was also placed upon the decision of the Supreme Court in the case of Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245, which shall be discussed at an appropriate stage. The decision of this High Court in the case of Girdharlal Lavjibhai v. Bhogilal Girdharlal and others, AIR 1981 Gujarat 139 was cited for the proposition that if the land in question is assessed to land revenue for purposes of agriculture, then the value would be twelve and a half times the assessment since sub-clause (a) of clause (v) of section 6 would be applicable. What the Legislature prescribes is the test of assessment to land revenue for a particular purpose and not the actual user of the land. The value of the land in the market is totally immaterial.
6 Vehemently opposing the appeal, Mr. Panthil Majmudar, learned advocate for the respondents invited attention to the provisions of section 15(2)(a) of the Gujarat Civil Courts Act, 2005, which lays down that appeals from the decrees and orders passed by a Court of District Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie – (a) to the Court of District Judge of the district when the amount or value of the subject matter of the original suit is less than five lakhs of rupees or such other sum, as the High Court may from time to time specify; (b) to the High Court in other cases. It was submitted that at the time of the trial, the suit was instituted as a special civil suit and tried by a Senior Division Judge. If it was the case of the respondents that the value was less, the suit would have been tried by a Junior Division Judge. Since the subject matter of the suit is more than Rs.5 lakhs, the appellant was required to file the first appeal before this court in the light of the provisions of section 15 of the Gujarat Civil Courts Act. It was also submitted that in the present case the valuation for the purpose of jurisdiction would be governed by the provisions of the Gujarat Court Fees Act and not the Bombay Court Fees Act
6.1 As regards the decision of the Supreme Court in the case of Sathappa Chettiar v. Ramanathan Chettiar (supra), it was contended that the forum of appeal was not the subject matter in the said decision and that the first paragraph itself says that the matter pertained to payment of court fees and that the main question was as regards amount of court fees payable and not as regards the forum before which the appeal would lie. Under the circumstances, the said decision would not be applicable to the facts of the present case.
6.2 Reliance was placed upon the decision of this High Court in the case of Chamar Jivabhai Bechardas and another v. Chamar Harijan Kesharbhai, 1968 GLR 727, wherein the suit in question was a suit for partition falling under section 6(vii) of the Court Fees Act for the purpose of court fees. The court that although section 8 of the Suits Valuation Act provides that the valuation for the purpose of court fees shall be the same as valuation for the purpose of jurisdiction in certain suits, that section does not apply to a suit for partition. It was submitted that in the present case also, the suit in question is a suit for partition and as such, the provisions of section 8 of the Suits Valuation Act would not be attracted. Reliance was also placed upon a decision of this Court in the case of Kantibhai Ishwarbhai Patel, through his Heirs and Legal Representatives v. Chandrakant Ishwarbhai Patel, 2006 (1) GLH 171.
7 While admitting the appeal, this Court by an order dated 18.8.2011 had formulated the following substantial question of law :
“Whether, in the light of the provisions of the Explanation to clause (vii) of section 6 of the Bombay Court Fees Act, 1959, the lower appellate court was justified in holding that the appeal was barred by want of jurisdiction on the ground that the value of the property is more than rupees five lacs?”
8 However, from the facts and contentions noted hereinabove, this court is of the opinion that the question is required to be re-formulated as under:
“Whether, on a conjoint reading of the provisions of section 8 of the Suits Valuation Act, 1887 and the Explanation to paragraph (vii) of section 6 of the Bombay Court Fees Act, 1959, the lower appellate court was justified in holding that the appeal was barred by want of jurisdiction on the ground that the value of the suit property is more than Rs.5,00,000/- ?”
9 In the aforesaid backdrop, the central issue that arises for consideration is as to whether in a suit for partition/share in the suit property, the jurisdiction to try the suit would be on the basis of the valuation fixed by the plaintiff for the purpose of court fees or on the basis of the valuation of the suit property for the purpose of jurisdiction.
10 Before adverting to the merits of the case, it may be germane to refer to the relevant statutory provisions. Section 6 of the Bombay Court Fees Act makes provision for “Fees payable in certain suits”. Paragraph (v) thereof lays down that in case of a suit for possession of lands, houses and gardens, the court fee is required to be determined according to the value of the subject matter and the value is deemed, where the subject matter is a house or garden according to the market value of the house or garden, and in case where the subject matter is land in terms of clauses (a), (b) or (c) thereof. Paragraph (vii) of section 6 of the Bombay Court Fees Act, provides for computation of fees payable in suits for a share in joint property, and lays down that in suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property whether or not the plaintiff is in actual or constructive possession of the property of which he claims to be a coparcener or co-owner according to the value of the share in respect of which the suit is instituted. The Explanation thereto provides that for the purposes of the said paragraph, if the property in which a share is claimed consists of or includes any land assessed to land revenue for the purpose of agriculture; the value of such land shall be deemed to be the value as determined under paragraph (v) of the said section. Accordingly, the plaintiffs, while instituting the suit for a share in the joint property, computed the value of the land as determined under paragraph (v) of section 6 of the Act and paid court fees accordingly. However, for the purposes of jurisdiction, the plaintiffs valued the suit at Rs.6 lakhs. It may be noted that on behalf of the appellant, reliance has been placed upon the provisions of section 6(vii) of the Bombay Court Fees Act, 1959 which is in pari materia with section 6(15) of the Gujarat Court Fees Act, 2004.
11 The main contention raised on behalf of the appellant is that in the light of the provisions of section 8 of the Suits Valuation Act, the jurisdiction to try the suit would be governed by the valuation fixed by the plaintiffs for the purpose of court fees and not on the basis of the valuation of the suit for the purpose of jurisdiction. The crucial question, therefore, would be as to whether in the facts of the present case, the provisions of section 8 of the Suits Valuation Act would be attracted.
12 Section 8 of the Suits Valuation Act reads thus:
“8. Court-fee value and jurisdictional value to be the same in certain suits.—Wherein suits other than those referred to in the Court-fees Act, 1870, section 7, paragraphs v, vi and ix, and paragraph x, clause (d), court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.”
13 However, it may be germane to note that by virtue of section 7 of the Suits Valuation (Gujarat Extension and Amendment) Act, 1964, in section 8 of the principal Act, for the words, figures, brackets and letter “the Court-fees Act, 1870, section 7, paragraphs v, vi and ix, and paragraph x, clause (d) Court fees are payable ad valorem under the Court-fees Act, 1870”, the following came to be substituted:
“clause (d) of paragraph (iv), paragraphs (v), (vi), (vii) and (x) and clause (d) of paragraph (xi) in section 6 of the Bombay Court-fees Act, 1959.”
14 Thus, in view of the provisions of section 8 of the Suits Valuation Act as applicable to the State of Gujarat, except for the suits referred to in clause (d) of paragraph (iv), paragraphs (v), (vi), (vii) and (x) and clause (d) of paragraph (xi) in section 6 of the Bombay Court-fees Act, 1959, the value as determinable for the computation of Court-fees and for the purpose of jurisdiction shall be the same. Thus, as to whether or not the provisions of section 8 of the Suits Valuation Act would be attracted in a particular case would depend on whether or not the case falls within any of the categories mentioned therein. If the case falls within any of the said categories, the provisions of section 8 of the said Act would not be attracted. Putting it differently, in case of a suit which falls within any of the categories mentioned in section 8 of the Suits Valuation Act, the said section would not be applicable. Whereas in cases which do not fall within any of the excepted categories, by virtue of the provisions of section 8 of the Suits Valuation Act, the value as determinable for computation of the court fees and for the purpose of jurisdiction would be the same. Accordingly, in such cases, the value for the purpose of computation of court fees would be required to be considered for the purposes of jurisdiction also. Hence, the next step would be to examine as to whether or not the suit in question falls within any of the categories of cases mentioned in section 8 of the said Act.
15 In the facts of the present case, it is an admitted position that the suit falls within the ambit of paragraph (vii) of section 6 of the Bombay Court Fees Act, 1959 and the court fees have been valued accordingly. As noted hereinabove, by the Suits Valuation (Gujarat Extension and Amendment) Act, 1964, certain words have been amended in the Suits Valuation Act, and accordingly, section 8 of the Suits Valuation Act as applicable to the State of Gujarat would read thus:
“8. Court fees valuation and jurisdiction to be the same in certain suits wherein suits other than those referred to in clause (d) of paragraph (iv), paragraphs (v), (vi), (vii) and (x) and clause (d) of paragraph (xi) in section 6 of the Bombay Court Fees Act, 1959.”
16 On a plain reading of the aforesaid provision, it is apparent that paragraph (vii) of section 6 of the Bombay Court Fees Act is mentioned as one of the excepted categories to which section 8 of the Suits Valuation Act does not apply. Under the circumstances, in the facts of the present case, the value as determinable for the purpose of computation of court fees and for the purpose of jurisdiction would not be the same. Therefore, the learned advocate for the respondent is right in contending that the value for the purpose of jurisdiction shall be as valued by the plaintiffs, viz., at rupees six lakhs.
17 The decision of this court in the case of Maliben Kamabhai Harijan v. LRs of Late Jagjivan Nanji (supra) would not be attracted in the facts of the present case inasmuch as, the said decision was rendered in the context of a case where the suit was instituted for declaration as well as permanent injunction restraining the defendants from interfering with the possession of the plaintiff of the suit land which falls within the ambit of section 6(iv)(j) of the Bombay Court Fees Act and as such, did not fall within any of the categories mentioned in section 8 of the Suits Valuation Act. The value as determinable for the computation of court fees and for the purpose of jurisdiction, was therefore, held to be the same. However, in the present case, the suit would fall within the ambit of section 6(vii) of the Bombay Court Fees Act, which is one of the sections mentioned in section 8 of the Suits Valuation Act and as such the provisions of section 8 of the Suits Valuation Act would not be applicable.
18 In the case of Sathappa Chettiar v. Ramanathan Chettiar, (supra), the Supreme Court has held thus :
“15. What would be the value for the purpose of jurisdiction in such suits is another question which often arises for decision. This question has to be decided by reading section 7(iv) of the Act along with section 8 of the Suits Valuation Act. This latter section provides that, where in any suits other than those referred to in Court Fees Act section 7, paras 5, 6 and 9 and para 10 clause (d), court fees are payable ad valorem under the Act, the value determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. In other words, so far as suits falling under section 7, sub-section (iv) of the Act are concerned, section 8 of the Suits Valuation Act provides that the value as determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provisions of section 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court fees and that is natural enough. The computation of court fees in suits falling under section 7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court fees, that determines the value for jurisdiction. The value for court fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of court fees that determines the value for jurisdiction in the suit and not vice versa. ”
In the light of the fact that the suit in question falls within the excepted categories mentioned in section 8 of the Suits Valuation Act, the aforesaid decision of the Supreme Court would not be applicable in the facts of the present case.
19 On the other hand, the decision of this court in the case of Chamar Jivabhai Bechardas and another v. Chamar Harijan Kesharbhai, (supra), on which reliance has been placed by the learned counsel for the respondents would be squarely applicable to the facts of the present case inasmuch as, in the said case, the suit was a suit for partition falling under section 6(vii) of the Bombay Court Fees Act. The court observed that section 4 of the Bombay Civil Courts Act, provides that the jurisdiction of a Civil Judge (Junior Division) extends to all original suits and proceedings of a civil nature wherein the subject matter does not exceed the amount or value ten thousand rupees. Therefore, whether the jurisdiction belongs to the Junior Division Judge or Senior Division Judge depends on the valuation of the subject matter. Unless there is a rule as in section 8 of the Suits Valuation Act, the valuation of the subject matter for the purpose of section 24 of the Bombay Civil Courts Act cannot be taken to be the same as the valuation for the purpose of court fees contained in the Courts Fees Act. The Court observed that in view of section 8 of the Suits Valuation Act, the valuation for the purpose of court fees would be the same as valuation for the purpose of jurisdiction in certain types of suits. But the said case would not fall under section 8 of the Suits Valuation Act. It was held that in the said case, which pertained to a suit for partition falling under section 6(vii) of the Bombay Courts Fees Act, which does not fall under section 8 of the Suits Valuation Act, the suit had to be valued on the basis of the valuation of the subject matter and not the valuation for the purpose of court fees.
20 In the light of the aforesaid discussion, the question is answered in the affirmative. On a conjoint reading of the provisions of section 8 of the Suits Valuation Act, 1887 and the Explanation to paragraph (vii) of section 6 of the Bombay Court Fees Act, 1959, the lower appellate court was justified in holding that the appeal was barred by want of jurisdiction on the ground that the value of the suit property is more than Rs.5,00,000/-. The lower appellate court was, therefore, justified in dismissing the appeal for want of jurisdiction.
21 For the foregoing reasons, the appeal fails and is, accordingly, dismissed.
[HARSHA DEVANI, J.] parmar*