The Jamia alias Jumma Mosque vs Reddy Sikander Saheb and others

Honourable Mr. Justice Madhava Rao

This is a Revision petition against the order of the Sub Judge, Madanapalle, dated 2nd September 1972 in unregistered O.S./R. No. 4061 of 1972 returning the plaint to the plaintiff to pay the deficit court fee : The brief facts leading to this revision are that the petitioner plaintiff, the Jamia alias Jumma Mosque, represented by its present President Janab M. Akbar Saheb, filed the suit against nine defendants for the following reliefs :--

(1) to declare the plaintiff''s title to the suit Wakf properties and for delivery of possession.

(2) for a true and correct account of profits received by the defendants from 3-3-1963 till the delivery of possession of the plaint schedule properties to the plaintiff.

(3) to direct the defendants to pay interest on the amounts of profits ascertained from the date of the suit till the date of realisation at 6 per cent per annum and

(4) for costs

The value of the suit as given in the plaint is,

A)

The value of the suit property 3/4th of the value u/s 24A. of the A.P. Court fees & Suits Valuation Act :

.. Rs. 2,00,000-00

.. Rs. 1,50,000.00

B)

For rendition of profits which was approximately estimated at

Rs. .. 100-00

C)

For future mesne profits till the date of delivery of possession which were valued at

.. 100-00

The plaintiff paid as per G.O.Ms.No. 1313 Home Courts (A) dt. 24.9.69 published in Andhra Pradesh Gazette dt. 16-9-69 Part (I) at page 1606, a minimum court fee of Rs. 15/- for all the reliefs. After the presentation of the plaint, an objection was taken as to why a fixed court fee of Rs. 15/- was paid.

Then it was clarified that, "as per the survey done by the Wakf Board of Andhra Pradesh the suit property has been recognised as a Public Wakf property for the maintenance of Jurama Mosque as per notification issued in A.P. Gazette in Part II at page 814 dt. 28.6.1962. Hence the G.O. quoted as G.O.Ms. No. 1313 dt. 24-9-1969 is directly applicable to the facts of this case. The G.O. is clear that a fixed court fee is payable irrespective of any relief sought for the restoration of the Wakf Property.

Therefore the lower court framed the point :

Whether the fixed court fee of Rs. 15/- paid as per G.O.Ms. No. 1313 Home Courts A dt. 24-9-1969 published in A.P. Gazette dt. 16.10.69 Part I at page 1606 is correct.

The lower court was of the view that if the suit filed is of the nature contemplated under the Wakf Act of 1954, a fixed court fee could be paid. But the lower court was of the opinion that the suit is filed for a declaration of the title of the plaintiff to the suit property, for recovery of possession and accounts, on the ground that it is a Wakf property. The learned Judge referred to the provisions of Sec. 6 of the Wakf Act of 1954 and was of the view that it does not deal with the reliefs claimed, as such, under the Wakf Act and that there is no other provision under the Wakf Act under which the said reliefs could be claimed. According to the lower court Sec 6 gives jurisdiction to the Civil Court to entertain suits relating to Wakf property only when a dispute arises in respect of the same. Therefore the reliefs of declaration of title and recovery of possession claimed in the suit were not shown to be under the Wakf Act and section 6 of the said Act simply confers jurisdiction upon the Civil Court. Therefore the lower court held that the reliefs of declaration and recovery of possession sought for, come u/s 24 (a)of the Andhra Court Fees Act and the exemption given in the G.O. quoted is not applicable to the facts of the suit as it is not a suit filed for restoration of Wakf property under the provisions of Wakf Act of 1959. Therefore lower court returned the plaint.

The learned Counsel for the petitioner contends that the suit for possession is filed under the provisions of the CPC and that under Sec. 55 of the Wakf Act the permission of the Advocate General as required u/s 92 CPC is exempted. Therefore the suit could be filed by the plaintiff and for that purpose the consent was also obtained from the Wakf Board under Sec. 55 of the Wakf Act. The learned counsel for the respondents, on the other hand, contends that section 5 of the Wakf Act only gives jurisdiction to the Civil Court to deal with the cases and does not contemplate the grant of reliefs claimed and that there is no provision, under, the Wakf Act to file a suit for recovery of possession etc. and therefore the said G.O., for payment of the fixed Court fee could not be called in aid.

It may be noted here that the suit property was notified in the official gazette by the State Government under Sec. 5 of the Wakf Act of 1954 as the Wakf property. But it is evident that the property was in possession of the respondent-defendant. The property, having been notified as Wakf property, was to be recovered by the Wakf Board or some persons permitted by the Wakf Board Therefore the present suit was filed for accounts possession etc. Apart from that as the defendants denied that it is a Wakf property and filed a suit O.S.NO. 76 of 1969 on the file of the court of the District Munsif, Madanapalli, denying the title of the Jumma Mosque to the suit schedule property and setting up full title in themselves, the prayer for declaration of title was also included in the plaint. When the suit property was notified under sec. 5 of the Wakf Act of 1954, a suit for declaration of title was necessary or not, is not a point now for consideration. But as the suit is for recovery of possession of the suit properties, the only question is whether the advalorem court fee has to be paid on the value of the sun or the fixed court fee of Rs. 15/- is to be paid as per G.O. Ms. No. 1313. Home Courts (A) dt. 24-9-1969. Whenever it is a suit for recovery of possession of the Wakf property, the provisions of G.O.Ms. No. 1313 dt. 24-9-1969 are attracted. Section 68 of the Andhra Court fees and Suits Valuation Act, 1956 clearly provides for reduction of court fees in certain cases and so far as the Wakf properties are concerned, the notification, reducing the Court fee payable for suits for possession, was issued by the Government of Andhra Pradesh under G.O.Ms. No. 2623 dt. 14-4-1960 which is as under :--

In exercise of the powers conferred by Sec. 68 of the Andhra Pradesh Court fees and suits valuation Act, 1956 (Andhra Pradesh Act, VII of 1956) the Governor of Andhra Pradesh hereby reduces to maximum of Rs. 15/- the fee payable under the said Act in respect of suits to be filed for restoration of Wakf properties under the provisions of the Wakf Act, 1959 (Central Act 29 of 1954)

It seems, a question arose whether in a suit where several reliefs are claimed, a fixed court fee of Rs. 15/- has to be paid, or separate court fee for for each relief has to be paid. To clarify the same, subsequently, another G.O.Ms. No, 1313, Home-Courts A dated 24-9-1969 was issued which read as follows:

In exercise of the powers conferred by Sec. 68 of the Andhra Pradesh court fees and suits valuation Act, 1956 (Andhra Pradesh) Act 7 of 1956), the Governor of Andhra Pradesh hereby directs that the reduced fee to a maximum of Rs. 15/- chargeable in respect of suits for the restoration of properties of the nature contemplated under the Public Wakfs (Extension of Limitation) Act, 1959 (Central Act 29 of 1959) shall be extended to all suits filed under the provisions of the above Act irrespective of number of reliefs sought for, in each suit in the entire State of Andhra Pradesh.

Thus, it is evident that whenever a suit is filed for the restoration of the Wakf properties, irrespective of the number of reliefs claimed, the maximum Court fee payable was fixed at 15/- only. There can be no doubt that if it is a suit for recovery of possession of the Wakf property, the maximum court fee payable is only Rs. 15/- even if there are ancillary reliefs such as for accounts and claim for mesne profits, Therefore, the only point for determination is whether this is a suit for recovery of the Wakf property or not. The allegations in the plaint clearly disclose the it is a Wakf property and that the same has been notified u/s 5 of the Wakf Act of 1954. In the absence of any special provision in the Wakf Act itself for filing a suit for recovery of possession of Wakf property, the law of procedure relating to the filing of civil suit has to be followed. Section 5 of the specific relief Act of 1963 provides for filing a suit for possession of the property, which reads as under: --

Recovery of specific immoveable property-A person entitled to the possession of specific immoveable property may recover it, in the manner provided by the Code of Civil Procedure.

Thus, a suit for possession of the immoveable property could be filed by a person who is entitled to the same. Therefore, it could not be stated that as there is no specific provision in the Wakf Act of 1959, for filing a suit for possession of the Wakf property, the provisions of the Wakf Act could not be attracted, and a fixed Court fee of Rs.15/- could not be paid. What the above said G.O. contemplates is the payment of the reduced court fees for the recovery of Wakf properties. So, the lower court was not correct in holding that section 6 of the Wakf Act does not contemplate the filing of the present suit for recovery of possession and accounts and the G. Os., referred to above, are not applicable. The language of the G. Os.., is very clear that when a suit is filed for restoration of properties of the nature contemplated under the Public Wakfs Act of 1959, the court fee payable is only Rs. 15/-. Therefore on the very face of it, the import of the language employed in the said G.Os., is that whenever a suit is filed for possession of the Wakf property, a fixed court fee of Rs. 15/- under the said G.Os., and not adavolorem court fee on the 3/4th of the market value of the property needs be paid. Thus it is not necessary to pay the ad valorem court fee u/s 24 (a) the Andhra Pradesh Court--fee and Suits Valuation Act of 1956 and the Court fee of Rs. 15/- paid on the plaint is sufficient. In the result, the Civil Revision Petition is allowed and the order of the lower Court is set aside. The lower Court is directed to take further proceedings in the matter. In the circumstances, there will be no order as to costs:--