P L D 1961 Dacca 191 (PLP)

2. The trial Court took the view that the prayers made in the plaint bring the suit within the provisions of section 7 (iv) (c) of the Court Fees Act, and, as such, the plaintiff should pay Court- fees on Rs. 1,280, the value of the lands. The plaintiff having failed to pay the deficit Court‑fees, his plaint was rejected by the trial Court.

3. On appeal by the plaintiff the learned District Judge, Noakhali, upheld that order of the learned Munsif. Hence this appeal.

4. Mr. Roy, the learned Advocate for the plaintiff-appellant, contends that the reliefs that the plaintiff asks for in the suit are of a declaratory nature where no consequential relief is prayed, and the plaintiff correctly paid the Court‑fees as provided for in Article 17 (iii) of Schedule II of the Court Fees Act.

5. Mr. Talukdar, the learned counsel for the respondents, on the other hand contends that the prayer in the plaint is for a declaratory decree where consequential relief is also prayed for.

6. The prayers in the plaint are as follows (1) That the plaintiff's auction‑purchased right in the proper ties described in the schedule below may be declared, and it may also be declared that the defendants have no right or title in the properties. (2) That the entries of the defendants' names in the Khas Mahal record and Khadan No. 10, and orders connected there with may be found to be fraudulent, collusive, etc. The question is: What in substance is the prayer of the plaintiff? The plaintiff recites in the plaint his title by auction‑purchase, and then says that a cloud has been thrown on that title by the entries in the Khas Mahal record and in the khatian. The subs tance of his prayer is, therefore, for a relief declaring his auction‑purchased title to the properties in suit. The entries in the khatian are only the clouds of which he wants to get rid of. In course of consideration of the plaintiff's title the Court will be faced with the khatian and the Khas Mahal record. The plaintiff will have to prove the allegations he has made with respect to them. The real relief that the plaintiff asks for is declaration of his title, and the second relief that he puts in the plaint is redundant in this view. If the plaintiff gets a declara tion of his title, he gets all the reliefs that he can asks for. In the case of Phul Kumari v. Ghanashyam Misra (12CWN169P(C)), there were as many as five prayers, and they included prayers, for declaration of the plaintiff's title and for declaration that the defendant had no right or title, that the properties were not liable to be sold in execution, and that a permanent injunction might issue on the defendant. Their Lordships of the Judicial Committee observed as follows : "For the right determination of the question at issue it is necessary to ascertain what are the objects and the nature of the suit. Now, unfortunately, this is not dubious. The plaintiff succinctly and accurately states that the cause of action accrued on the 24th April 1899, that being the date of a judgment pronounced against her in the court of the Subordinate Judge of Purneah in certain execution proceedings. What had taken her' into that Court was this: She had bought a property from the second respondent, and had taken possession, and was regis tered as proprietor. After and notwithstanding this, the first respondent, purporting to be a creditor of the second respon dent, under a decree for Rs. 62.022 attached the property and advertised it for sale. The appellant lodged with the Subordi nate Judge of Purneah, before whom the execution proceedings took place, a claim to the property, claiming that her right should be declared, and that an injunction should issue against the execution of the decree held by the first respondent. This claim was rejected by the Subordinate Judge on 24th April 1899, and his decree is the cause of action in the suit which gives rise to this appeal. It is true that, instead of asking the Court to alter or set aside the decree which is the cause of action, she categorically asks from the Court the several decrees which she had asked from the Subordinate Judge, and which the Subordinate Judge had refus ed. But this is merely a verbal or formal difference." The reliefs that are prayed for in a suit are not always the criteria by which a correct decision can be arrived at as to whether it comes under one category or the other of suits for purposes of Court‑fees ; it is the substance of the plaint that is to be looked into.

7. Mr Talukdar, the learned counsel for the respondents refers to the case of Deokali Koer v. Kedar Nath (I L R 39 Cal. 704), and contends that, even though the reliefs in the present suit have been couched in a declaratory form, the real object of the plaintiff is to get something more than a bare declaration of his title. I do not see how Deokali Koer's case is of any help in the solution of the present question. There their Lordships referred to the provisions of section 42 of the Specific Relief Act, and observed that n one of the declarations that were sought in that case related to the plaintiff's legal character or right as to any property. The suit out of which the appeal arose before their Lordships was accord ingly held to be not for a declaratory decree at all. This case, if anything, strengthens the proposition that the substance of the plaint is to be looked into rather than the form in which the reliefs are couched. The reliefs were couched in a declaratory form ; but then their Lordships held that the substance of the reliefs prayed for was anything but declaratory. If, for example, the plaintiffs prays, firstly, for a declaration that money is due to him from the defendant, and secondly, prays for recovery of that money, the second relief cannot be treated as a consequential relief flowing from the first relief. Nobody will contend in such circum stances that the plaintiff will not have to pay ad valorem Court‑fees on the amount of money he seeks to recover. All that I want to emphasise is that an ingenuous way of framing reliefs in a dec laratory language should not help the plaintiff in evading the pro per Court‑fee that is to be paid. If, on the contrary, the plaintiff) unnecessarily burdens his plaint with reliefs which he need not seek he should not be punished by imposition of higher Court‑fees than he is to pay under the Court‑Fees Act. Reading the plaint in the present case. I have no doubt in my mind that what the plaintiff seeks is a declaratory decree, and the second relief that he puts down in the plaint is absolutely redundant, and the plaintiff should not on that account be punished. I may refer in this con nection to the case of Tewari Kora v. Bhupat Mandar (50 I C 298), where in a question almost identical with the one before me arose. There the plaintiffs prayed for a declaration that they were occu pancy tenants and not tenure‑holders, and that the survey entry describing them as tenure‑holders was wrong. The plaintiffs made a further prayer for a declaration that the entry was not binding on them. It was held that the plaintiffs by the second prayer were not asking for any consequential relief, and that, therefore, Court‑fees were payable not under section 7 (iv) (c) but under Article 17 (iii) of Schedule II of the Court Fees Act.

8. It is true that in the case of Midnapur Zemindary Company Ltd. v. Secretary of State for India (I L R 44 Cal. 352), to which reference is made in Tewari Kora's case also it was held that a prayer that an entry in the record‑of‑rights showing the plaintiffs as tenure‑holders was a nullity prefaced by a prayer for declaration that the plaintiffs were occupancy raiyats, was a consequential relief, and that the suit was not for a declaration as contemplated by the proviso to section 111‑A of the Bengal Tenancy Act. This decision can no longer be held to be good law in view of the decision in the case of Midnapur Zemindary Co. Ltd. v. Secretary of State (AIR 1929 P C 286), wherein their Lordships of the Judicial Committee approved of the decision of the Calcutta High Court in the case of Raja Promoda Nath Roy v. Asiruddin Mondal (15 C W N 896). In Raja Promoda Nath Roy 's case the suit was for a declaration that the entry in the record‑of‑rights describing the plaintiff as a tenure‑holder was erroneous, and for a declaration that he was an occupancy raiyat, and it was held that the suit came within the proviso to section 111‑A of the Bengal Tenancy Act, and was a bare declaratory suit as contemplated in Chapter 6 of the Specific Relief Act. This view, as I have already said has been approved by their Lordships of the Privy Council in the case of Midnapur Zemindary Co. Ltd. v. Secretary of State. Hence the decision of their Lordships of the Calcutta High Court in the case of Midnapur Zemindary Company Ltd. v. Secretary of State for India, holding that a prayer that an entry in the record of‑rights showing the plaintiff's, as tenure‑holders was a nullity, and not binding on the plaintiffs, was a consequential relief can no longer be said to hold good. The present suit being one for declar ation of the plaintiff's title only, I am of opinion that the Courts below were wrong in thinking that the Court‑fee paid on the plaint was inadequate.

9. In the result this appeal is allowed ; the judgments and decree of the Courts below are set aside and the case is sent back to the trial Court for disposal on merits. Parties will bear their own costs throughout upto this stage. K. B. A. Appeal allowed.