Rai Bageshwari Prasad and Another vs Tulsi Garain

Meredith, J.—This is an application by plaintiffs for revision of an order of the learned Munsif of Jehanabad, calling upon the petitioners to pay deficit court-fees.

The suit was one of a number brought for the following reliefs: (1) A declaration that an order of the revenue officer fixing a reduced rent roll u/s 112, Bihar Tenancy Act, was wrong, illegal, without jurisdiction, unenforceable, and not binding on the plaintiffs, (2) for enhancement of the reduced rent to the rent formerly paid, and (3) for arrears of rent said to be due for certain years.

The petitioners paid ad valorem court-fees as regards the third prayer, namely for a decree for arrears of rent, and there is no question before us with regard to the correctness of that. In regard to the first two prayers, however, the court-fee paid by the petitioners was ad valorem upon the basis of one year''s rental.

It is contended that the first two prayers were treated as being for a declaration and consequential relief, and that the court-fee paid under this head was paid u/s 7(iv)(c), Court-fees Act, the plaintiffs having valued their consequential relief at the amount of one year''s rental. It seems, however, more probable that the court-fee on the basis of one year''s rental was really paid u/s 7(xi)(b).

However, that may be, the learned Munsif held that the suit was one for a declaration, without further consequential relief, and a necessary declaration, and the proper court-fee payable was Rupees 15 under Schedule 2, Article 17(iii), Court-fees Act. As the question of Government revenue is involved, we have had notice served on the Advocate-General, who has appeared, and we have had the benefit of his assistance. There is no appearance on behalf of the opposite party.

It has been argued before us that the suit is really a suit u/s 104-H, Bihar Tenancy Act, and it is pointed out that it has been held judicially that certain suits u/s 104-H are for declaration and consequential relief, and governed as regards court-fees by Section 7(iv)(c). These rulings are Pajiruddin v. Secretary of State 16 C.L.J 383 and Trailokya Nath Pal v. Secretary of State 17 C.L.J. 426.

There are two answers to this argument. In the first place, these rulings do not lay down any general rule with regard to suits u/s 104-H. They relate only to the particular case where in addition to the prayer for declaration there is a prayer for settlement of fair rent, and in those two cases it was because of the existence of the prayer for settlement of fair rents that it was held that consequential relief was an ingredient in the suits. Mr. Sarju Prasad for the petitioners frankly concedes that there may well be suits under some of the provisions of Section 104-H, for example Section 104-H(3)(a) or (c), which are plainly purely declaratory suits.

In the second place, it is quite clear that the present suit is in no sense a suit u/s 104-H. Section 104-H(3) enumerates certain grounds, and provides that the suit may be instituted on any of these grounds, and on no others. The scope of a suit u/s 104-H is therefore limited, and Mr. Sarju Prasad is unable to say that the present suit falls under any of the grounds (a) to (g) specified in Section 104-H. It is indeed obvious that a suit for a declaration that the proceedings of the revenue officer are ultra vires and illegal, is not at all the sort of suit contemplated by Section 104-H. The decisions cited have therefore no relevance.

Mr. Sarju Prasad argues however on general principles, that this is a case where, if they had to pray for a declaration at all, the plaintiffs had to pray for something more by way of consequential relief, while if the proceedings of the revenue officer were wholly void ab initio, they could be ignored without any declaration; the prayer for declaration was unnecessary, and the suit could be treated purely as a suit for rent.

On the other hand, if the proceedings were merely voidable, then the prayer to restore the old rates of rent was in no sense a surplusage, but was a necessary consequential relief. In my view, these arguments are not correct. The necessity of a declaration is clear from the provisions of Section 15, Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act (Act 9 of 1938), since the effect of this section is that the landlord cannot sue for recovery of rent at a rate in excess of the reduced rate fixed by the revenue officer.

On the other hand, it appears to me that all that it was necessary for the plaintiffs to ask for in this case, and indeed the only relief they could ask the Court to grant, was a declaration that the proceedings were illegal and without effect. This was not a case comparable to a case for a declaration of the invalidity of a document and for its cancellation. The Court cannot be asked, and was not asked, to cancel the proceedings of the revenue officer. The civil Court is not sitting in appeal or revision from the orders of the revenue officer, and, if those are voidable orders, it is not for the civil Court to cancel them.

In fact, as I have said, all that need be asked for, and all the Court could do, is to give a declaration that the proceedings of the revenue officer were illegal, and so of no effect. Once that declaration was given, there could be no need for any additional relief in the shape of (restoration of the old rates of rent, or an enhancement of the rent to the old rates. Once it was declared that the alteration in the rates was illegal and of no effect, the old rates of rent would be restored automatically.

It seems to mo therefore that the second prayer in this case, for restoration of the original rate of rent by enhancement, was in fact quite unnecessary, and should be disregarded as surplusage. Substantially--and we must in these cases go by the substance rather than the wording of the plaint--the suit was for a declaration, pure and simple, a necessary declaration, coupled with a prayer for a decree for arrears of rent. That prayer was in no sense consequential relief and it has not been argued that it was. It was a quite independent prayer for relief. Separate court-fees were therefore quite rightly; paid and accepted for that relief. But apart from that, there was clearly a court-fee payable for the declaration under Schedule II, Article 17(iii). The Munsif was, in my view, quite right in domanding that court-fee.

I would therefore dismiss this application. There will be no order for costs. It will be open to the petitioners to apply to the learned Munsif for reasonable time in order to make up the deficiency in court-fees.

Shearer J.

I agree. What the plaintiffs in substance asked for was a declaration that, in spite of the proceedings in the revenue Courts, they were entitled to recover rent from the defendants at the same rate as they had been entitled to recover it before these proceedings commenced. Such a suit is, in my opinion, a suit u/s 42, Specific Relief Act, for a declaration and for nothing more.