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Wednesday, November 20, 2013

Court Fee = Suit originally filed for permanent injunction and necessary court fee under S.6 paid - Reliefs of (i) possession and (ii) Mandatory injunction added later on due to subsequent developments. Main relief & ancillary relief - Distinctive features - Analysed Lower Court directed payment of balance court fee under S. 24 in view of subsequently added reliefs Later reliefs whether ancillary or main - Initial relief of injunction transforms into a consequential relief once the relief of possession is added.= Dr.V.Rajeshwar Rao petitioner M.Yadagiri Reddy & Ors. = published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=2192

Suit            
originally filed for permanent injunction and necessary court fee under S.6 paid
-  Reliefs of (i) possession and (ii) Mandatory injunction added later on due to
subsequent developments.  
Main relief & ancillary relief  -  Distinctive features  -  Analysed  Lower
Court directed payment of balance court fee  under S. 24 in view of subsequently
added reliefs
 Later reliefs whether ancillary or main  -  Initial  relief of injunction
transforms into a consequential relief once the relief of possession is added.=

>HELD:        Admittedly, the suit was filed initially for perpetual injunction
against the respondents and pending the suit, the petitioner had ultimately got
interim injunction in his favour and during this interregnum and in violation of
the said injunction order, the petitioner alleges, the respondents have
encroached upon the suit land and made substantial construction even though
there was police aid in another suit. On the appointment of the Commissioner and
the report filed by him, it was evident that constructions have already come up
and ultimately the petitioner had to seek the amendment of the plaint in this
suit by adding the reliefs of possession and mandatory injunction.
In respect of a suit for injunction, the provisions of Section 26 of the Act
prescribe the payment of the court fee in its three different clauses which
include the situations where title to the property is denied and also other
cases. Normally, in these suits, the court fee has to be paid on the one half of
the market value of the property under sub-clause (a) and in other cases, on the
amounts on which the reliefs were sought in the plaint as per clause (6)
therein. Normally, in  suits for injunction, the valuation is the discretion of
the plaintiff without there being any gross under valuation. So far as
multifarious suits are concerned, Section 6 of the Act governs the field....The
proviso to Sec.6 contemplates that the plaint has to be valued on the main
relief if the other reliefs are only ancillary to the main relief. Therefore,
for applying the said provision, it has to be seen as to which of the reliefs
constitute the main and ancillary. The expression "main relief" takes in almost
every relief for which the suit is solely laid for. However, the expression
"ancillary relief" has to be read in conjunction with the main relief i.e., it
should be aiding or auxiliary to the main relief. An ancillary relief can in a
given circumstance be the main relief but not the vice versa. In a simpliciter
suit for injunction, the relief of injunction comprises the main relief but when
a relief which is of a substantial nature viz., possession or declaration is
added to it, the relief of injunction which was hitherto the main relief scales
down to the position of a consequential relief. There are ample distinctive
features in between main and ancillary reliefs. Apart from being essentially
paramount and predominant, the main relief is a substantial in nature forging on
substantive and vested rights. Possessory relief is the basis and any form of
injunction - either mandatory or perpetual - springs from it. To see if a relief
is subsidiary or main, the real test is to see whether one relief can be granted
without the other. Here in this case in view of the very facts alleged, either
of the reliefs of injunctions cannot be granted unless the petitioner seeks
possession. Therefore, the possessory relief becomes dominant and constitutes as
the main. Simply because initially the suit is filed for injunction and the
other reliefs of declaration or possession have been added in view of changed
circumstances or warranting circumstances on the appearance of the defendant,
the relief of injunction does not remain as the main relief making the other
reliefs of declaration or possession as ancillary thereto. In fact, in any given
case, the reliefs of declaration and possession necessarily constitute the main
reliefs and these reliefs would always go with the other incidental reliefs of
injunction either perpetual or mandatory depending on the facts of each case.
Subsequent addition of any such substantial relief would not make it ancillary
to the relief already existing merely because such relief was the initial
foundation for the suit. The petitioner-plaintiff having filed the suit
initially for injunction and in view of the alleged subsequent acts of
encroachment and construction, the reliefs of possession and mandatory
injunction were added lateron. These reliefs, even according to the plaintiff,
are in fact based on the subsequent cause of action. In these circumstances, it
has to be held that the relief of possession constitutes the main relief and any
other reliefs of injunction either perpetual or mandatory fall behind the same
and become ancillary to the same. Even if the suit is to be treated as a
comprehensive  one including the reliefs of injunction and possession, apart
from basing upon different causes of action, it only calls for payment of the
highest court fee leviable on the reliefs as per Section 6(2) of the Act viz.,
possessory relief.


HON'BLE SRI JUSTICE B.PRAKASH RAO      
C.R.P.No.1140 of 2000


 11/07/2000




Dr.V.Rajeshwar Rao

petitioner

M.Yadagiri Reddy & Ors.


respondnet


<ANDHRA PRADESH COURT FEES AND SUITS VALUATION ACT, 1956  -  Ss. 6 & 24  -  Suit            
originally filed for permanent injunction and necessary court fee under S.6 paid
-  Reliefs of (i) possession and (ii) Mandatory injunction added later on due to
subsequent developments.  
Main relief & ancillary relief  -  Distinctive features  -  Analysed  Lower
Court directed payment of balance court fee  under S. 24 in view of subsequently
added reliefs
 Later reliefs whether ancillary or main  -  Initial  relief of injunction
transforms into a consequential relief once the relief of possession is added.

>HELD:        Admittedly, the suit was filed initially for perpetual injunction
against the respondents and pending the suit, the petitioner had ultimately got
interim injunction in his favour and during this interregnum and in violation of
the said injunction order, the petitioner alleges, the respondents have
encroached upon the suit land and made substantial construction even though
there was police aid in another suit. On the appointment of the Commissioner and
the report filed by him, it was evident that constructions have already come up
and ultimately the petitioner had to seek the amendment of the plaint in this
suit by adding the reliefs of possession and mandatory injunction.
In respect of a suit for injunction, the provisions of Section 26 of the Act
prescribe the payment of the court fee in its three different clauses which
include the situations where title to the property is denied and also other
cases. Normally, in these suits, the court fee has to be paid on the one half of
the market value of the property under sub-clause (a) and in other cases, on the
amounts on which the reliefs were sought in the plaint as per clause (6)
therein. Normally, in  suits for injunction, the valuation is the discretion of
the plaintiff without there being any gross under valuation. So far as
multifarious suits are concerned, Section 6 of the Act governs the field....The
proviso to Sec.6 contemplates that the plaint has to be valued on the main
relief if the other reliefs are only ancillary to the main relief. Therefore,
for applying the said provision, it has to be seen as to which of the reliefs
constitute the main and ancillary. The expression "main relief" takes in almost
every relief for which the suit is solely laid for. However, the expression
"ancillary relief" has to be read in conjunction with the main relief i.e., it
should be aiding or auxiliary to the main relief. An ancillary relief can in a
given circumstance be the main relief but not the vice versa. In a simpliciter
suit for injunction, the relief of injunction comprises the main relief but when
a relief which is of a substantial nature viz., possession or declaration is
added to it, the relief of injunction which was hitherto the main relief scales
down to the position of a consequential relief. There are ample distinctive
features in between main and ancillary reliefs. Apart from being essentially
paramount and predominant, the main relief is a substantial in nature forging on
substantive and vested rights. Possessory relief is the basis and any form of
injunction - either mandatory or perpetual - springs from it. To see if a relief
is subsidiary or main, the real test is to see whether one relief can be granted
without the other. Here in this case in view of the very facts alleged, either
of the reliefs of injunctions cannot be granted unless the petitioner seeks
possession. Therefore, the possessory relief becomes dominant and constitutes as
the main. Simply because initially the suit is filed for injunction and the
other reliefs of declaration or possession have been added in view of changed
circumstances or warranting circumstances on the appearance of the defendant,
the relief of injunction does not remain as the main relief making the other
reliefs of declaration or possession as ancillary thereto. In fact, in any given
case, the reliefs of declaration and possession necessarily constitute the main
reliefs and these reliefs would always go with the other incidental reliefs of
injunction either perpetual or mandatory depending on the facts of each case.
Subsequent addition of any such substantial relief would not make it ancillary
to the relief already existing merely because such relief was the initial
foundation for the suit. The petitioner-plaintiff having filed the suit
initially for injunction and in view of the alleged subsequent acts of
encroachment and construction, the reliefs of possession and mandatory
injunction were added lateron. These reliefs, even according to the plaintiff,
are in fact based on the subsequent cause of action. In these circumstances, it
has to be held that the relief of possession constitutes the main relief and any
other reliefs of injunction either perpetual or mandatory fall behind the same
and become ancillary to the same. Even if the suit is to be treated as a
comprehensive  one including the reliefs of injunction and possession, apart
from basing upon different causes of action, it only calls for payment of the
highest court fee leviable on the reliefs as per Section 6(2) of the Act viz.,
possessory relief.


Counsel for the petitioner:Venkata Raghu Ramulu

Counsel for the respondents       :         K.Mahipathy Rao


:ORDER:

This revision at the instance of the plaintiff is filed against the orders
calling upon him to pay court fee under Section 24 of the Andhra Pradesh Court
Fees and Suits Valuation Act, 1956 (for short "the Act") by filing the market
value certificate of the properties in view of the subsequent amendments adding
the prayers for recovery of possession and mandatory injunction to demolish the
constructions made. Initially, the petitioner filed the suit in O.S.No.48 of
1990 on 29-1-1990 seeking perpetual injunction against the respondents herein
from interfering with his possession over the suit land. Pending the suit, the
petitioner sought interim injunction in I.A.No.102 of 1990 which was dismissed
after hearing both the sides. However, the appeal filed by the petitioner was
allowed in C.M.A.No.27 of 1990 on 10-4-1991 granting injunction as sought for.
These orders were confirmed by this court in C.R.P.No.2007 of 1991 by orders
dated 2-9-1993. In another parallel suit in O.S.No.64 of 1987, on the file of
the Principal Subordinate Judge, Ranga Reddy District, the petitioner also
obtained an order for police aid in I.A.No.58of 1990. Later on in the same suit,
on the appointment of a Commissioner as per orders in I.A.No.57 of 1990, a
report was filed on 31-8-1996 which is to the effect that the respondents herein
have made constructions and built a complex. The case of the petitioner was that
in spite of the injunction order, the constructions were made and accordingly
the petitioner had moved an application in I.A.No.3371 of 1998 seeking amendment
of the plaint by adding two prayers viz., for recovery of possession of second
schedule and for mandatory injunction to demolish the constructions, which was
allowed as per orders dated 17-11-1998. As a consequence to this amendment and
addition of the two prayers, the court below directed the petitioner to pay the
court fee in accordance with Section 24 of the Act by filing the necessary
market value certificates of the properties against which the reliefs were
claimed.
Sri Venkata Raghu Ramulu, counsel appearing for the petitioner, contended that
the suit as initially filed is one for injunction and it is only due to the
subsequent acts of the respondents herein in making constructions contrary to
the injunction orders in the said suit, it necessitated for addition of the
prayers of possession and mandatory injunction and, therefore, these prayers
which are added subsequently are only ancillary and incidental reliefs but not
the main relief and, therefore, under Section 6 of the Act, the court fee having
already been paid for the main relief of permanent injunction, there is no
necessity to pay any court fee for the added reliefs.
Sri K.Mahipathy Rao, counsel appearing for the respondents, contended that
admittedly the suit was one for injunction and later on substantive reliefs of
possession and mandatory injunction were added and, therefore, the initial
relief of injunction transforms into a consequential relief to the reliefs which
have been added and the plaintiff has to pay the court fee on the main reliefs
as added.
In this view of the matter, the question which falls for consideration in this
revision is: consequent to the addition of prayers of possession and mandatory
injunction in a suit for bare injunction, which of the reliefs partakes of the
character of the main relief and whether it attracts any payment of additional
court fee?
Admittedly, the suit was filed initially for perpetual injunction against the
respondents and pending the suit, the petitioner had ultimately got interim
injunction in his favour and during this interregnum and in violation of the
said injunction order, the petitioner alleges, the respondents have encroached
upon the suit land and made substantial construction even though there was
police aid in another suit. On the appointment of the Commissioner and the
report filed by him, it was evident that constructions have already come up and
ultimately the petitioner had to seek the amendment of the plaint in this suit
by adding the reliefs of possession and mandatory injunction.
In respect of a suit for injunction, the provisions of Section 26 of the Act
prescribe the payment of the court fee in its three different clauses which
include the situations where title to the property is denied and also other
cases. Normally, in these suits, the court fee has to be paid on the one half of
the market value of the property under sub-clause (a) and in other cases, on the
amounts on which the reliefs were sought in the plaint as per clause (6)
therein. Normally, in  suits for injunction, the valuation is the discretion of
the plaintiff without there being any gross under valuation. So far as
multifarious suits are concerned, Section 6 of the Act governs the field, which
reads as under:
"6. Multifarious suits:- (1) In any suit in which separate and distinct reliefs
based on the same cause of action are sought, the plaint shall be chargeable
with a fee on the aggregate value of the reliefs:
Provided that if a relief sought is only ancillary to the main relief, the
plaint shall be chargeable only on the value of the main relief.
(2) Where more reliefs than one based on the same cause of action are sought in
the alternative in any suit, the plaint shall be chargeable with the highest of
the fees leviable on the reliefs.
(3)(a) Where a suit is based on two or more distinct and different causes of
action and separate reliefs are sought in respect thereof, either alternative or
cumulatively, the plaint shall be chargeable with the aggregate amount of fees
that would be chargeable on the plaints under this Act if separate suits were
instituted in respect of the several causes of action:
Provided that, where the causes of action in respect of reliefs claimed
alternatively against the same person arise out of the same transaction, the
plaint shall be chargeable only with the highest of fees chargeable on them.
(b) Nothing in this sub-section shall be deemed to affect any power conferred
upon a court by Rule 6 of Order 11 in the First Schedule to the Code of Civil
Procedure, 1908 (Central Act V of 1908).
(4) The provisions of this section shall apply mutatis mutandis to memorandum of
appeals, applications, petitions and written statements.
Explanation: For the purposes of this section, a suit for possession of
immovable property and for mesne profits, the relief shall be deemed to be based
on the same cause of action."

Thus, the proviso contemplates that the plaint has to be valued on the main
relief if the other reliefs are only ancillary to the main relief. Therefore,
for applying the said provision, it has to be seen as to which of the reliefs
constitute the main and ancillary. The expression "main relief" takes in almost
every relief for which the suit is solely laid for. However, the expression
"ancillary relief" has to be read in conjunction with the main relief i.e., it
should be aiding or auxiliary to the main relief. An ancillary relief can in a
given circumstance be the main relief but not the vice versa. In a simpliciter
suit for injunction, the relief of injunction comprises the main relief but when
a relief which is of a substantial nature viz., possession or declaration is
added to it, the relief of injunction which was hitherto the main relief scales
down to the position of a consequential relief. There are ample distinctive
features in between main and ancillary reliefs. Apart from being essentially
paramount and predominant, the main relief is a substantial in nature forging on
substantive and vested rights. Possessory relief is the basis and any form of
injunction - either mandatory or perpetual - springs from it. To see if a relief
is subsidiary or main, the real test is to see whether one relief can be granted
without the other. Here in this case in view of the very facts alleged, either
of the reliefs of injunctions cannot be granted unless the petitioner seeks
possession. Therefore, the possessory relief becomes dominant and constitutes as
the main. Simply because initially the suit is filed for injunction and the
other reliefs of declaration or possession have been added in view of changed
circumstances or warranting circumstances on the appearance of the defendant,
the relief of injunction does not remain as the main relief making the other
reliefs of declaration or possession as ancillary thereto. In fact, in any given
case, the reliefs of declaration and possession necessarily constitute the main
reliefs and these reliefs would always go with the other incidental reliefs of
injunction either perpetual or mandatory depending on the facts of each case.
Subsequent addition of any such substantial relief would not make it ancillary
to the relief already existing merely because such relief was the initial
foundation for the suit. The petitioner-plaintiff having filed the suit
initially for injunction and in view of the alleged subsequent acts of
encroachment and construction, the reliefs of possession and mandatory
injunction were added lateron. These reliefs, even according to the plaintiff,
are in fact based on the subsequent cause of action. In these circumstances, it
has to be held that the relief of possession constitutes the main relief and any
other reliefs of injunction either perpetual or mandatory fall behind the same
and become ancillary to the same. Even if the suit is to be treated as a
comprehensive  one including the reliefs of injunction and possession, apart
from basing upon different causes of action, it only calls for payment of the
highest court fee leviable on the reliefs as per Section 6(2) of the Act viz.,
possessory relief.
Accordingly, the lower court is right in calling upon the plaintiff to pay the
court fee as per Section 24 of the Act on the substantiation of the market value
by necessary certificates as contemplated.
In view of the aforesaid reasons, I do not find any merits in the revision and
it is therefore, dismissed. No costs.
























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