- (1.) R. R. K. Trivedi, J. Heard -learned counsel for petitioner and Shri I. S. Singh, learned Standing Counsel. Both the learned counsel have agreed that this petition may be decided finally at this stage.
(2.) FACTS giving rise to this petition are that auction of shop/accommoda tion, situate in Court compound in town Roorkee, for 1991-92 was held on 16-3-1991. The bid of the petitioner for Rs. 47,200 was found highest and consequently it was accepted. This auction was confirmed by the Collector on 30-3-1991 and petitioner was allowed to work from 1-4-1991. He deposited the first instalment of Rs. 11,800. The remaining amount was payable in three ins talments to be deposited in the months of July and October, 1991 and January, 1992. The petitioner committed default in payment of the amount which is being sought to be recovered from him as land revenue arrears, chal lenging which he filed Original Suit No. 33 of 1993 in the Court of Civil Judge, Roorkee. In para 6 of the plaint of this suit, it has been stated that at the time of the auction, the Sub-Divisional Magistrate had given an assurance to persons willing to participate in auction that a second canteen will not be opened in the court premises and they may participate in the auction without any fear of the same. It is stated that from 2-4-1991 a second canteen was opened in the building of the Bar Association, Roorkee and that affected his business and he is not liable to pay the amount. It has also been stated that raising this aspect, he made several applications before the authorities but nothing has been done and they want to recover the amount as land revenue arrears, hence this suit for permanent injunction has been filed. A written statement was filed by respondents disputing the claim of petition and challenging the valuation of the suit and the payment of court fee. Issue No. 7 was struck by the trial court which was decided on 14-2-1995. The trial Court found that though the valuation of the suit is correct, the payment of court-fee of Rs. 500 for relief of injunction is not sufficient. The court decided the issue holding the petitioner liable to pay court-fee on full amount of Rs. 33,400 which is being recovered from him. Aggrieved by this order, petitioner filed appeal under Section 6-A of the Court Fees Act which has been dismissed by the learned Additional District Judge, Roorkee by his order dated 13-11-1995, aggrieved by which this petition has been filed. Learned counsel for petitioner has submitted that from a perusal of the plaint it is clear that the only relief sought by the petitioner is that of permanent injunction for which the court-fee prescribed under the Court Fee Act is Rs. 500 which has been paid and the view taken by the courts below that the court- fee paid is not sufficient is based on misconception and against the various judgments of this Court and Hon'ble the Supreme Court. Learned counsel for petitioner has placed reliance in case of Vishnu Pratap Sugar Works (P) Ltd. v. The Chief Inspector of Stamps, U. P. , reported in AIR 1968 SC 102 ; M/s. Hannuman Oil Industries v. Kanpur Electric Supply Administration reported in 1983 ACJ 648 and Radha Charan Das v. Th. Mohini Behariji Maharajj and others reported in AIR 1975 All 368.
(3.) LEARNED standing counsel, on the other hand, submitted that if the determination of the liability to pay the amount is incidental, then the court fee payable on the relief of injunction could be sufficient but in case for granting the relief of injunction substantial determination is with regard to the liability to pay the amount, then the court-fee. payable shall be ad valorem. LEARNED Standing Counsel has placed reliance* in case of M/s. Ratlam Straw Board Mills Private Ltd. v. Union of India reported in AIR 1975 Delhi 270. I have seriously considered the submission of the learned counsel for the parties. In this case the plaint has been filed as Annexure 1 to the writ says that at the time of the auction, Sub-Divisional Officer had given an as surance that second canteen will not be opened in the court premises and they may participate in the auction without any fear of the same. It is stated that acting on that assurance, the plaintiff-petitioner participated in the auc tion for the year 91-92. It is not the case of the petitioner that this condition was part of the agreement. Whether the petitioner is entitled for any remis sion in the agreed amount on the basis of the allegations made in para 6 of the plaint is the real controverys which has to be resolved in the suit for granting the petitioner relief of permanent injunction claimed by him. The substantial and real relief sought in the suit is to avoid the payment of Rs. 33,400, the balance of contract money which is being recovered from him. This relief has a definite value. The relief is dependant on determination of plea raised in para 6 narrated above. In my opinion, in such circumstances, r' payment of fixed court-fee for the relief of injunction alone will not be sufficient. In fact the relief of injunction in the facts and circumstances of the case is a consequential relief and not main relief. The Delhi High Court in case of M/s. Ratlam Straw Board Mills (P) Ltd. v. Union of India (supra) has observed as under in para 13: "in the instant case the defendants claim a sum of Rs. 1,40,000 on account of risk purchase alleged to have been made by them in terms of the cancelled contract vide risk purchase acceptance of Tender dated 29th July, 1969 on the stores of the same specification as in the cancelled Acceptance of Tender. The plaintiff seek to avoid this liability which, but for the suit, is being enforced against him. The plaintiff want to be relieved of this liability. The relief sought by the plaintiff has a real money value which is a definite amount sought to be recovered would be the value of the relief claimed by the plaintiff and the court-fee payable must be ad velorem court-fee on the amount of the liability from which the plaintiff seek to be relieved".;