Gian Kaur vs S.Janak Singh

(1) By virtue of an agreement deed dated 2321974, the parties agreed to purchase and employ Truck No 1399/JKB Model 1971 covered by

Route Permit No. 273/KP for the purpose of carrying on the business of transport in partnership with one another. They even purchased the

Truck.

Clause ii and iv of the agreement provided as under :

ii That the truck will be operated and Plied on the routes or area as per the consent of its driver (S. Inder Singh) husband of party No. 1

iv. That the plying (operation of the vehicle will be entrusted to S. Inder Singh) husband of party No. 1 whereas S. Mangat Singh S/o S. Janak

Singh (Party No. 2) shall work as a cleaner of the truck and both the driver and cleaner will be entitled for their wages as mutually agreed upon by

the parties.

(2) On 1091974 the petitioner, Gian Kour (hereinafter called the plaintiff) brought a suit against the respondent Janak Singh, (hereinafter called the

defendant), in the court of 1st. Additional Munsiff, Srinagar and claimed the following reliefs :

i. A perpetual injunction restraining the defendant his servants, or agents, from putting of the commissioning of truck at the hands of Sardar Inder

Singh its driver ii. An order that the defendant install the driver S. Inder Singh to his seat wherefrom he is able to ply the truck,

The plaintiff alleged that after the truck was purchased by the parties, it was given into the charge of S. Inder Singh who was required to ply the same as stipulated in the agreement. He acted as the driver of the vehicle upto 29474 when it was removed from his charge by the defendant who has ever since kept it in his own charge and acts as its driver. The plaintiff contended that the act of the defendant amounted to breach of the covenant and have put the plaintiff to a huge and irreparable loss.

(4) Defendant resisted the suit inter alia on the ground the it was not properly valued for purposes of court fee and jurisdiction tie contended that

the, suit if properly valued, fall outside the jurisdiction of the trial court. The trial court upheld the objection. The plaintiff appealed to Sub Judge

(CJM) Srinagar but could not succeeds. Hence this revision.

(5) The courts below have concurrently held that the suit falls under section 7 (iii) of the Court Fees Act. The court fee is therefore payable on the

market value which shall also be the value for purposes of jurisdiction. The market value of the truck was Rs. 60,000/ and as much the suit fell beyond the pecuniary jurisdiction of the trial court. The argument of the learned counsel for the plaintiff is that the view expressed by the courts below is grosslyerroneous. He urged that the suit squarely falls under section (iv) (d) of the Court Fees Act and, as such, the value for purposes of court fee and jurisdiction shall be the amount at which the relief sought is valued in the plaint and, so viewed, the suit fall within the pecuniary jurisdiction of the trial court, On the other hand, learned counsel for the defendant argued that in substance the suit is for the recovery of the Truck and as much the view taken by the courts below was perfectly justified.

(6) Section 7 (iii) of the Court Fees Act. provides :

The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :

i to ii

iii. In suits for movable property other than money, where the subjectmatter has a market value according to such value at the date of presenting

the plaint.

(7) This Clause will be applicable where the suit is for the recovery of a movable property. That the present suit is not. The plaintiff has nowhere in

the plaint asked for the delivery of the truck. Her contention is that the parties have entered into partnership in order to carry on transport business.

For this purpose they have purchased the truck. By virtue of Clause (ii) and (iv) of the agreement deed it was agreed that her husband S. Inder

Singh shall act as the driver of the vehicle and ply the same on such roads and in such areas as he may desire. It necessarily implied that the defendant shall not be entitled to ply the vehicle himself or through his agents or servants. The defendant has however taken the vehicle in his own charge and started plying the same. In these premises, the plaintiff has asked for an injunction to prevent the breach of obligation arising from the covenants made in the partnership agreement. Thus both in form and substance the suit is for injunction. It will be covered by clause 7 (iv) (d)

which relates to the suits "to obtain an injunction" and, consequently, the value of the suit for purposes of court fee and jurisdiction shall be the

amount at which the relief sought is valued in the plaint. The plaintiff had valued the relief at Rs. 10/ in the plaint. In the view expressed above, the suit clearly fell within the jurisdiction of the trial court. The view to the contrary expressed by the lower courts is erroneous and must be set aside.

(8) The result, therefore, is that this revision succeeds and is allowed. The order of the courts below holding that the suit fell outside the jurisdiction

of the trial court is set aside The trial court is directed to hear and dispose of the case on merits. The parties shall appear in the trial court on

2771979.