বুধবার, ৪ জানুয়ারী, ২০১২

Court Fees of Bangladesh

                              Court Fees of Bangladesh
Md. Sagir
Director (District Judge), JATI.

Court-fees is payable on the basis of the case as made out in the plaint
In considering what court-fee is payable on a plaint, caution must be observed so as not to import into the plaint anything which it does not really contain either actually or by necessary implication. In construing the plaint the Court must take it as it is, not as it may think it ought to have been. A relief not asked for cannot be imported so as to charge court-fee thereon. Where a plaintiff who is entitled to consequential relief frames his suit as one for a declaration only, the Court is not entitled to insist upon his paying the court-fee proper for such a suit. [18 DLR 60S],
Suit may be dismissed if after the hearing the case, it is found that proper court-fees has not been paid
After hearing the suit on merits, if on a consideration of the plaint as a whole and the relief prayed for, it is found that the plaintiff ought to have prayed for further relief and paid advalorem court-fee, which he did not pay, the suit of the plaintiff is liable to be dismissed for not having paid proper and sufficient court-fee. [18 DLR 60S].
Court-fee is to be paid on the claim as framed by the plaintiff
Court-fee is payable on the claim as framed in the plaint and not on the claim as it ought to be, and this depends on the construction of the plaint and the reliefs claimed there under, and from these must be ascertained the object or nature of the suit.  11 DLR 57J.
In determining the nature of a suit for the purpose of court fee, the Court should look to the substance rather than to the form of the plaint
In determining the object or nature of a suit, the Court must look rather to the substance than to the form of the plaint; and, in doing so, if the Court comes to the conclusion that through the relief asked for in the plaint is for declaration with consequential relief, the plaintiff really wants to obtain a substantive relief, then a proper court-fee on that relief can be demanded irrespective of the valuation put by the plaintiff on the ostensible relief. 11 DLR 57J.
Where it is found that the real nature of the suit is not a declaratory one with consequential relief but in effect a substantive relief has been claimed the plaintiff must pay advalorem court-fee
If a substantive relief is claimed though clothed hi the grab of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief, and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief, irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief.

A relief for the cancellation of a decree or, to be more accurate, for the setting aside of a decree is not a declaratory relief only. The effect is not merely a declaration as to a person's character or status. [11 DLR 57].

If the plaint discloses that relief sought is not one for declaration of title to land but for some relief relating to land (in this case it was for vacating a cancellation of an allotment order) and for permanent injunction, such a suit falls under section 7(iv)(c).
The prayers in the plaint were as follows:-
"(a) That a decree be passed declaring that the purported order of cancellation of
allotment bearing No. 422(64) and the purported letter of reallotment bearing No.
298(52) are illegal, without any lawful authority, void and of no legal effect or
(b)  That a decree for permanent injunction be passed against the defendants
restraining them from interfering with or disturbing plaintiff's possession in the suit
property. "
The plaint concluded saying-
"That the suit being one for declaration and permanent injunction and there being no objective standard of value of the reliefs sought for, the plaintiff values his suit at Rs. 120/-and ad valorem court fee has been paid in that valuation. "
Held : It is clear the suit is for declaration and for permanent injunction.
The suit thus being one for declaration as to legality of certain orders and consequential relief by way of injunction, the same is governed by section 7(iv)(c) of the Court Fees Act in as much as it is not for declaration of title to he lands but for permanent injunction restraining interference with the plaintiff's possession and as such valuation put by the plaintiff and court-fee paid on the plaint should be accepted as correct. [26 DLR 82].
Declaration of nullity of a document is the main and substantive relief, whereas cancellation of the instrument is a consequential relief
Section 42 of the Specific Rerrti" J*- does not specifically provide for cancellation of a document but it is section 39 of the Act which specifically provides for cancellation of "any written statement" which includes both a deed of transfer and a decree. Section 39 provides for declaration of nullity of a written statement in the words "adjudge it so" void; it also provides that the Court 'in its discretion' may order the instrument, when adjudged void, to be delivered up or cancelled. From this provision it is obvious that the declaration of nullity is the main and substantive relief, whereas cancellation of the instrument is a consequential relief.
The cancellation of a document is much more than a declaratory relief, that it is a substantive relief, and that ad-valorem court-fee will be necessary for such a relief under section 7(iv)(c) of the Court-fees Act. [39 DLR(AD) 46].
Plaintiff's principal prayer was for declaration that the action of the government declaring the jurisdiction, which prayer being incapable of any objective valuation, plaintiffs valuation must be accepted- Prayer for injunction can be treated as a consequential relief.
The plaintiffs made the following prayer :
A) A declaration that the plaintiff being the owner of the suit properties and the suit properties not being enemy property as contemplated by Law, and all proceedings purported to declare the suit properties as enemy property are malafide, unlawful, null and void, illegal, without jurisdiction and is of no legal effect.

B) A permanent injunction restraining the defendant Nos. 1-7 from interfering with the plaintiff possession and management of the suit properties in any manner and also from withdrawing any amount from the A/C of the plaintiff's Tea Estate lying with defendant No. 8 and 9 as also restraining the defendant No. 8 and 9 from making any payment to defendants 1-7."
The Trial Court was of the view that the suit, in substance, was a suit for possession of property and further held that the prayer for declaration and for injunction was not maintainable.
Before the High Court Division, point raised was the plaintiffs challenged the action of the Government declaring plaintiffs property enemy property purported to have been taken by it under some statutory power as null and void, in consequence whereof they prayed for injunction as a consequential relief: In a suit of this nature, it was contended, there is no objective standard of valuation and the valuation given by the plaintiffs should be accepted as correct. The next contention was that the injunction itself should be treated as a prayer for consequential relief.
Held: Upon true construction of the reliefs prayed for, it appears that the principal prayer of the plaintiffs is for declaration that the action of the Government declaring the plaintiffs property to be enemy property is without jurisdiction. A declaration of this nature is not capable of any objective valuation, and as such the valuation put by the plaintiff must be accepted.
If it ultimately appears that some further relief such as possession, can, or must, be sought, the proviso to section 42 of the Specific Relief Act, would be a bar to the suit. In the case of
Mohammad Yunus it was observed that prayer for injunction can be a consequential relief.

In this particular case injunction and not recovery of possession is the appropriate consequential relief and the Court below was wrong to hold otherwise. [30 DLR 116].
Suit for partition,- When the plaintiff is out of possession ad-valorem court-fee to be paid
It was held with reference to the section 7(vi-A) of the Court Fees At that if a person is excluded from possession then a suit for simple partition of joint property or for assertion of a share in joint property is not maintainable without payment of ad-valorem court-fee on the market value of the share which is claimed in the partition. [35 DLR 11].
'Out of possession' is not the same thing as 'excluded from possession'
'Out of possession' is not synonymous with 'excluded from possession'. In a case when a person is excluded from possession it means that by some overt act he has been kept out of possession and has not been allowed possession. Therefore, an element of obstruction or prevention from ascertaining a right appears to be necessary to construe 'exclusion from possession'. In other words it suggests a clear and complete ouster. Nothing short of a complete ouster and clear exclusion from possession will defeat the right of a co-sharer to sue the co-sharer in partition without payment of ad-valorem court-fees on the market value of the share of the property. /35 DLR 11].

Partition Suit for separation of plaintiffs share in joint possession, valuation of
In suits for partition where the plaintiff claims to be in joint possession, if the suit as framed discloses that the object of the suit is merely to separate the share of the plaintiff from that of the defendant, the value of his share would determine the forum of the suit. [12 DLR 329].
Suit for partition for entire estate, valuation of
If the object of the suit is to partition the entire estate, the value of the entire estate will determine the forum of the suit. [12 DLR 329j.
Where plaintiff in joint possession claims a share for himself, Court's jurisdiction will not be affected even if defendants gets a share of the value exceeding Court's pecuniary jurisdiction
With regard to partition suits simpliciter where the plaintiff claims to be in joint possession and seeks only to have his own share separated, he will have to pay a fixed court-fee but will have to state the value of the share he claims in the properties in suit and the jurisdiction of the Court will be determinable in accordance with the value of the plaintiffs share. Such a course will not lead to any anomaly eve if the share allotted by the decree in such a suit to a defendant is much in excess of the pecuniary jurisdiction of the Court or for the reason that the decree will have to be stamped under the Stamp Act with duty in excess of that amount. The quantum of the stamp duty leviable on a document cannot affect the jurisdiction of a Court or govern questions relating to the interpretation of the Court-Fees Act or the Suits Valuation Act. [12 DLR 329].
Prayer for possession, whethe, brings the case within clause v of section 7, Court Fees Act
Prayer for possession, in a suit for specific performance of contract, does not make the suit a suit for possession under clause (v) of section 7 of the Court Fees Act. A contract for sale includes a stipulation not only for execution of the conveyance but also for delivery of possession. [7'DLR 157].
Prayer for a declaratory decree that the........... deed is void, plaintiff not being a party to the
The plaintiffs suit was for declaration that the .... deed relating to the property in suit (of which the plaintiff is a co-sharer) be declared void and a further prayer that the suit property be partitioned and a separate 'Saham' be allotted to the plaintiff.
The first question arose was whether the prayer for declaration that the .... deed was void to which the plaintiff was not a party, should further contain a prayer that the document be cancelled.
Held : The plaintiff not being a party to the .... deed the prayer for declaration that it is void is sufficient and the prayer for cancellation is not necessary. [21 DLR 468],
Question of payment ofadvalorem court-fee is to be determined at the time of trial
Even in a suit for simple declaration the Court is competent to issue commission, if necessary. Therefore, this cannot be a valid ground for directing the plaintiffs to pay advalorem court-fee. The question whether the plaintiffs are required to pay advalorem court-

fee, is to be determined at the trial; before that it is not proper for the Court to direct the plaintiffs to pay advalorem court-fee. [28 DLR 392],
Plaint to reject a licensee is to bear court-fee as provided in section 7(xii), Court Fees Act
The plaintiff instituted a suit for recovery of possession of a shop in the New Market (Dhaka) after evicting the defendant who occupies the premises as his licensee for tailoring work. The plaintiff who is himself a monthly tenant of the Provincial Government for the said premises asked the defendant to vacate the same and on his refusal, the present suit for possession has been instituted. The suit has been valued at Rs. 1207- for the purpose of court-fees.
Held : (Unanimously) In view of the case of the plaintiff, the instant case is governed by clause (xii) of section 7 of the Court-Fees Act.
Subject-matter in case of this class is not the property for the possession of which the suit was instituted, but the right that vests in the plaintiff. [19 DLR 287].
Expression "Subject-matter" as used in section 7(v)(a), Court Fees Act what refers to
The expression "subject-matter" in sub-clause (a) of clause v of section 7 of the Act, means a right sought to be established, a wrong to be remedied and defence asserted in justification of the wrong. [19 DLR 287].
When prayers are purely for declaration only, fixed court-fee payable
Plaint prayed for declaration that : (1) documents relating to the property in suit were void ab initio and that the defendant acquired no interest in them and (9) that the documents were brought about by forgeries.
Hasan. J.- The first prayer for a declaration that the documents are void ab initio comes under section 39 of the Specific Relief Act and the second prayer that the defendants have acquired no interest in the premises by virtue of the said documents comes under section 42 of the Specific Relief Act. They are prayers for declaration only and nothing more.
The prayer (b) is nothing but the ground in support of prayer (a). As such the plaintiff is liable to pay fixed court-fee under Article 17(iii), Schedule II of Court Fees Act.
Court is not bound to give relief for cancellation of a document in every case under section 39 of the Specific Relief Act by canceling the document, whether there is a prayer for cancellation or not.
The language of section 39 does not make it obligatory on the Court to order the instrument to be delivered up or cancelled even if not so prayed for. A relief may be granted when it is prayed for and not otherwise.
Where illegality of the document appears on the face of it, its cancellation may not be necessary. Where a person not a party to the instrument, apprehending injury thereby sue to have it adjudged void or voidable, he is not in a position to pray for cancellation. In such cases plaintiff can not be compelled to pray for cancellation and pay advalorem court-fee for it. Where illegality or nullity of the document is non-apparent, the danger of its use in defence

is always there and in such cases cancellation and delivering up of the document is necessary and the Court may give such relief. But the relief shall have to be prayed for and unless prayed for, it cannot be granted nor can the plaintiff be forced to pray for it and pay advalorem court-fee for it. A suiter has absolute authority to frame his suit as he likes; he may suffer or gain for so doing.
Satter, J- The suit as framed is a purely declaratory one in which the document need not be cancelled. Plaintiff is to pay fixed court-fee for declarations separately in respect of several documents.
A document to which the plaintiff is not a party need not be cancelled and mere declaration that it is void is sufficient. Only a document which has vested exfacie a valid claim, needs to be challenged. A forged document does not come under this category.
If, however, the plaintiff asks for cancellation of a forged document, though such cancellation is not needed, he must pay for it.
If on consideration of the plaint as a whole, the Court finds that there are both prayers for declaration and cancellation or that cancellation is to be ordered having regard to the case made out in the plaint, fixed court-fee under Article 17(iii) Schedule II of the Court Fees Act is not sufficient.
Simply because section 39 of the Specific Relief Act contemplates that relief of cancellation can be granted by the Court, even when the plaintiff has not asked for it, it cannot be said that the plaintiff need not pay for it. The plaintiff must pay for the relief if it is granted by the Court.

It is not necessary to cancel a document in every case. It depends upon the facts of a case. Relief of cancellation under section 39 need not be specifically asked for in view of the language of the section. It may be granted by the Court. If such a relief has to be given, the plaintiff must pay for it and payment of fixed court-fee for mere declaration is not sufficient.
Sayem, J- The relief of cancellation of a written instrument in a suit for adjudging or declaring the instrument void or voidable is not a substantive relief, as distinguished from a consequential relief, but is a consequential relief within the meaning of section 7(iv)(c) of the Court Fees Act.
In this respect there is no distinction between a decree of a Court and a document of any other type. Both are written instruments in the sense the expression has been used in section 39 of the Specific Relief Act.
The plaintiff has omitted to claim consequential relief in terms of section 7(iv)(c) of the Court Fees Act or a substantive relief. The first part of prayer (a) is for a declaration falling under section 39 and is second part for a declaration in terms of section 42 of the Specific Relief Act.
Both being simple declaration, section 7(iv)(c) can have no application and they are governed by Article 17(iii) of the Second Schedule of the Court Fees Act.
The contention that in view of the second part of prayer (a), namely, the prayer for declaration that the defendants have acquired no interest in the premises by virtue of the said

documents and in view of the prayer (b) that no consideration passed by the documents, the suit was virtually a suit for cancellation of the said documents was overruled.
At the stage of determination of the question of court-fee the Court is not concerned with the merits of the suit or its maintainability.
The contention that in a suit under section 39 of the Specific Relief Act, plaintiff need not specifically pray for cancellation and that the section casts a duty on the Court to grant the relief cannot stand.
It is only the relief specified in the second paragraph of the section 39 which provides that if the instrument has been registered under the Registration Act, the Court shall, in its discretion adjudge it void or voidable and orders it to be delivered up and cancelled, send a copy of its decree to the registration office for noting the fact of cancellation, and that need not be prayed for. The discretion mentioned in the section cannot relate to a judgment alone but also to the relief of cancellation. A discretion conferred on the Court cannot be exercised in favour of a party even though the party chooses not to ask for its exercise. It cannot be said that once an instrument is adjudged void the discretion of the Court for cancellation is to follow, just as the relief set out in the second paragraph is to follow an order of cancellation. [17 DLR 119].


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