1986 PLP 123 (CLC)

3. Mr. Jhamat Jethanand, the learned counsel for the applicants, has contended that his suit is simply for declaration and the court‑fee of Rs.15 has been properly paid thereon and that he is not required to pay ad valorem court‑fee under section 7(iv)(c) of the Court Fees Act as ordered by the learned Judge on an application moved by the respondents 2 to 9 under Order VII, rule 11, C.P.C. To support his contention he relied on three authorities, namely, A I R 1937 Sind 241, P L D 1967 Kar. 458 and A I R 1933 Sind 53.

4. The first cited case is a leading case of the erstwhile Chief Court of Sind. In this Full Bench judgment it has been held that the plaintiff cannot value his relief for injunction arbitrarily and the Court can review the valuation fixed arbitrarily and thus, in a suit to set aside a decree or an award where consequential relief is sought by way of an injunction restraining the decree‑holder from enforcing his decree, the fixed court‑fee as prescribed by clause (vi) of Article 17 of the Bombay Court Fees Act, is not the only fee payable and it is not open to the plaintiff to value the injunction arbitrarily and pay court‑fee thereon. The learned counsel for the applicants contends that his suit is merely for declaration inasmuch as no consequential relief by way of injunction has been sought for.

5. In the second case the said judgment of the Full Bench has been followed. The learned counsel for. the applicants while referring to the third case invited my attention to the finding on issue No. 1 at page 55 of the report wherein fixed court‑fee for declaration and for setting aside the decree and 10 Annas for the injunction which relief was valued at Rs.5 only was held to be a proper court‑fee. The third case in view of the abovesaid Full Bench case is not of any help to the applicants.

6. On the other hand, Mr. Naimatullah Soomro, the learned counsel for respondents 2 to 9 has vehemently argued that the court‑fee payable on the plaint was correctly and properly ordered by the learned Senior Civil Judge to be paid under section 7(iv)(c) of the Court Fees Act. In support of his contention he has relied upon a number of cases, namely, Muhamad Aslam Khan v. Muhammad Hassan and others P L D 1959 Pesh. 101, S. Zaffar Ahmed v. Abdul Kahliq P L D 1964 Kar. 386, Daibakilal Basak v. Iqbal Ahmed Qureshi and others P L D 1965 Dacca 439 and Abdul Hamid alias Muhammad Abdul Hamid v. Dr. Sadeque Ali Ahmed and others P L D 1969 Dacca 357.

7. In the Peshawar case it was held that the mere fact that the relief as stated in the prayer clause is couched in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed in the plaint constitutes a declaration pure and simple and involves no other relief the suit would undoubtedly fall under Schedule II of Article 17(iii) of the Court Fees Act and the court‑fee payable would be that prescribed thereunder. But if, on the other hand, it is found that though consequential relief is not asked for expressly but the declaratory relief claimed does involve a consequential relief, the suit will fall within the purview of section 7(iv)(c) of the Court Fees Act.

8. In the Karachi case as referred by Mr. Soomro it was held that the valuation for the purposes of court‑fees under section 7(iv)(c) of the Court Fees Act in a suit for setting aside the decree obtained by fraud should be the amount involved in the impugned decree.

9. In the two Dacca cases, cited above, the first is a Full Bench decision in which the question as in the instant case, has been thoroughly discussed, which was later on followed in the second case P L D 1969 Dacca

357. In these two cases the question of payment of court‑fee on suits for declaration has been discussed from various angles.

10. Mr. Justice Abdul Sattar while delivering his opinion independently, in 1965 Dacca 459, has observed as follows:‑ "It is only a document, which has vested ex facie a valid claim, need to be cancelled . In determining whether in a suit cancellation has been asked for, the plaint has to be read as a whole and the Court will not confine itself merely to the form of the plaint but it must look to the substance of the relief claimed. If on consideration of the plaint, the Court comes to the conclusion that the plaintiff has asked for both declaration and cancellation or that cancellation is to be ordered having regard to the case made out in the plaint, then it must be held that payment of fixed court‑fee under Article 17(iii) of Schedule is not sufficient."

1. Mr. Justice Sayam in the same case in a separate judgment observed as follows:‑ "If the plaintiff is a party to the instrument the Court refuses, as a rule, to grant such a declaratory relief, on the ground that the instrument, in such a case, need be avoided by cancellation. The plaintiff in such a case is required to pay for cancellation, by way of consequential relief."

12. In my opinion, the authorities cited by the learned counsel for the respondents 2 to 9 fully support his contention. The Court is to take into consideration the plaint as a whole and see the nature of the relief claimed by the petitioner. In this case, the applicants have not only sought for declaration in respect of the agreement and the decree obtained by fraud and misrepresentation to be void and of no effect but have also prayed for the relief for cancellation of the said agreement and the decree. The second relief as to the cancellation of the agreement and the decree constitutes a consequential relief which flows from the declaration itself. In this view of the matter, it cannot be said that he has not asked for any consequential relief. The relief for declaration has been sought under section 42 of the Specific Relief Act, whereas the cancellation of an agreement and a decree falls within the perview of section 39 of the Specific Relief Act. The possible result would be that in a suit for declaration and cancellation of a document or decree court‑fee is to be paid under section 7(iv)(c) of the Court Fees Act.

13. I, therefore, uphold the order of the Court below directing the applicants to pay the ad volarem court‑fee on Rs.1,54,000 under section 7(iv)(c) of the Court Fees Act.

14. Mr. Naimatullah Soomro, the learned counsel for the respondents 2 to 9 has also argued before me that the valuation of a suit for the purposes of jurisdiction and court‑fees should be the same and vice versa, as provided in section 8 of the Suits Valuation Act, 1887. I do not consider it proper to go into this point as it was not agitated in the lower Court. Moreover, as I have already held that the applicants have to pay court‑fee under section 7 (iv)(c) of the Court Fees Act, nothing will turn on it.

15. Before parting with this case I would, however, like to observe, that it would be open to the parties to take any legal objection as to the late payment of the court‑fee, by the plaintiff on the plaint.

16. In the result, the revision application is dismissed with costs. A.A. Revision petition dismissed.