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ORDER Vijender Jain, J.
1. Plaintiff has filed this suit for permanent injunction, infringement of copyright and passing off seeking relief of perpetual injunction restraining infringement of copyright as well as passing off. The relief is valued at Rs.200/- for the purpose of Court fee and jurisdiction and court fee of the amount of Rs.20/- has been affixed. However, for the relief of rendition of account of profits, it is valued at Rs.200/-. It will be interesting to reproduce paragraph 23 (c) of plaint which is as follows :
(c) For an order for rendition of accounts of profits illegally earned by the defendants, it is valued at Rs.200/- for purposes of Court fee and the requisite amount of Court fee has been affixed. This relief is valued at Rs.5,50,000/- for the purposes of jurisdiction, as the plaintiff estimates that such an amount shall be found due to the plaintiff on accounts being rendered. The plaintiff undertakes to pay such additional Court fee as may be found due when the actual amount is rendered and ascertained by this Hon'ble Court. That the plaintiff is valuing the said relief separately for the purposes of Court fee and jurisdiction in terms of the judgment of the Hon'ble Division Bench of this Court and of the Hon'ble Supreme Court .
2. At the outset this Court took objection that the Court fee paid on the plaint was arbitrary, whimsical and without basis as nothing has been averred in the whole plaint regarding the profits illegally earned by the defendant or approximation of the sale conducted by the defendants. Not even a whisper in the plaint has been made regarding damages being suffered by the plaintiff except a bald averment in para 23(C) of the plaint that for the purposes of jurisdiction the plaintiff valued the relief for rendition of account at Rs.5,50,000/-.
3. Mr. Ajay Sahni, learned counsel for the plaintiff has addressed lengthy arguments that it is the right of the plaintiff to value the relief for the purpose of jurisdiction under the provisions of Order 7 Rule 2 of the Code of Civil Procedure read with Section 7 of the Court Fee Act, 1870 and Section 9 of the Suits Valuation Act, 1887 read along with Rules 3 & 4 of the Punjab and Haryana High Court Rules and on the basis of the aforesaid enactment Mr.Sahni has contended that in view of the amendment in the Punjab & Haryana High Court Rules and in view of Rules 3 & 4 of the said amendment, the plaintiff has got the right to fix any value for suits for rendition of accounts.
4. Rule 4 of the aforesaid Rules is relevant, which is as follows :
"(i) Suits in which plaintiff in the plaint seeks to recover the amount which may be found due to the plaintiff in taking unsettled accounts between him and the defendant.
(ii) Suits of either of the kinds described in Order XX, Rule 13 of the Code of Civil Procedure;
Value for the purpose (a) As determined by the of Court Fee Court Fees Act, 1870. Value for the (b) For the purposes of purpose of the Suits Valuation jurisdiction Act, 1887, and the Punjab Courts Act, 1918, as valued by the plaintiff in the plaint, subject to determination by the Court at any stage of the trial."
Mr. Sahni has contended that if the Court ultimately comes to an opinion from the material on record or evidence adduced that the suit is under- valued or over-valued, the Court can pass appropriate order. But at the time of institution of the suit, law enjoins plaintiff the right to fix its own valuation for the relief of rendition of account and for valuation purposes of jurisdiction. In case of former, the suit has been valued at Rs.200/- and the later at Rs.5,50,000/-. He has cited the whole catena of cases i.e. M/s Commercial Aviation & Travel Company and Ors. Vs. Vimal Pannalal; , Brooke Bond India Ltd. Vs. Balaji Tea (India) Pvt. Ltd.; 1993 PTC 40, M/s Commercial Aviation & Travel Co. & others Vs. Vimla Panna Lal; , M/s Eastman Kodak Company Vs. M/s M.R. Electronics & Others; 1995 PTC 146 and Automatic Electric Ltd. Vs. R.K.
Dhawan & Anr.; as well as M/s P.M. Diesels Ltd. Vs. M/s Patel Field Marshal Industries & Anr.; FAO(OS) 270/95 decided on 13.3.1998.
5. On the basis of the aforesaid authorities, the learned counsel for the plaintiff has contended that the plaintiff could put his own value for the purposes of jurisdiction and the grievance that the value for jurisdiction is higher would make no practical difference since the value for purposes of Court fee could be different in view of the Rules being framed under Section 9 of the Suits Valuation Act.
6. There is no controversy regarding fixing of Court fee by the plaintiff on the relief of rendition of account, choice is left to the plaintiff to exercise that right in a proper manner. This view has been consistently taken by the Full Bench of this Court in Smt. Sheila Devi & Ors. Vs. Shri Kishan Lal Kalra & Ors.; ILR 1974 (2) Delhi 491 as well as Division Bench of this Court in M/s Fenner India Ltd. Vs. M/s Salbros Enterprises Pvt. Ltd.; FAO (OS) 204 and CM 2685/1995 decided on 9.4.1997. The authority cited by learned counsel for the plaintiff i.e. P.M. Diesel Ltd. (Supra) is of no help to him as in that matter the controversy arose on account of an application for grant of temporary injunction pending disposal of the suit was dismissed holding that plaintiff has not been able to prima facie show that territorial as well as pecuniary jurisdiction.
7. However, in the case before me, the plaintiff has filed this suit seeking injunction, inter alia, alleging that according to him, plaintiff is fourth largest veterinary drug manufacturer in the country and he is seeking injunction in view of his trade mark being registered, the goods are being sold by the defendant by utilising the goodwill and trade name of the plaintiff. The prayer for rendition of account is ancillary to the prayer of injunction which is also made. In para 23 (b) for the relief of perpetual injunction restraining passing off, the plaintiff has given a valuation of Rs.200/- for the purpose of Court fee and jurisdiction. Without any averment in plaint in para 23(c), the plaintiff has valued the relief for rendition of account for Rs.200/- for the purpose of Court fee, while valuing it for the purpose of jurisdiction, the same relief is valued at Rs.5,50,000/-.
8. No doubt law gives a right to the plaintiff to value the suit for the relief of rendition of account and for the purpose of jurisdiction separately. But whether the plaintiff has exercised that right to divest the right forum or has artificially invested this court with the jurisdiction, is a point which has to be pondered over. Whether the plaintiff has got the right to value the relief for jurisdiction in an arbitrary and whimsical manner? Whether the plaintiff has a right to value the suit without laying down any foundation in the plaint merely to exclude the jurisdiction of a Court which otherwise would have got the jurisdiction but for three lines written in para 23 (c) of the suit? These are certain issues which have to be addressed.
9. There cannot be two opinion with the proposition of law as enunciated by the Supreme Court as well as this Court in view of the decisions cited by the learned counsel for the plaintiff that plaintiff can pay fixed court fee for unsettled accounts and for jurisdiction purposes such a suit can be valued in terms of valuation fixed by the plaintiff.
10. In the case before me the valuation for the purpose of jurisdiction has been quantified with the sole objective to confer jurisdiction on this Court as this Court will have pecuniary jurisdiction if the valuation of the subject matter is over Rs.5 lakhs, otherwise in the normal course, the jurisdiction would lie with the District Judge. No doubt law provides that in case of relief for rendition of account when the amount is not ascertained the plaintiff cannot be asked to give a specific and ascertained figure of the amount on which relief is sought in the suit. But that does not give a licence to plaintiff to give a wholly arbitrary and unreasonable figure so as to divest a Court which has got the jurisdiction to try the suit and to invest a Court which for these aforesaid three lines would not have the jurisdiction to try the suit by giving a higher valuation so as to bring suit within the pecuniary jurisdiction of this Court.
11. I would like to mention that peculiar situation has arisen in Delhi as most of the High Courts in the country do not have Original Side Jurisdiction. The suit in relation to infringement, passing off etc. is filed for obtaining perpetual injunction. Suit has to be filed before the District Judge but to bring this suit to be maintained in this Court, relief for rendition of account is added wherein relief for rendition of account is valued at Rs.200/- and for the purpose of jurisdiction the relief is valued at more than 5 lakhs rupees, whole exercise is for maintaining the suit in this Court and that is why figure of jurisdictional value is fixed over Rs.5 lakhs so as to bring the suit within the pecuniary jurisdiction of the Original side of the Delhi High Court. There is neither any nexus nor rational or objectivity and not even a whisper in the plaint as on what basis the approximation value of jurisdiction has been arrived at by the plaintiff at Rs.5,50,000/-. Least a plaintiff, if he feels and takes advantage of the settled proposition of law to value the suit for the purpose of jurisdiction differently than for the purpose of relief, ought to have given some reasons in the plaint, which I find totally missing in the case before hand. This fixation of valuation is demonstrably arbitrary, given to oust the jurisdiction of the Court of the first instance, i.e. the Court of the District Judge. Relief of rendition of account is sought in this suit, which is essentially a suit for injunction and to maintain this suit in this Court in paragraph 23(c) an averment has been made that for the purpose of jurisdiction, the value is fixed at Rs.5,50,000/-. The foundation of suit emanates from the breach of legal obligation regarding copyright, trade mark and passing off, where the first and foremost relief is the relief of injunction. The relief for rendition of account is only to bring the suit within the ambit of Section 9 of the Suits Valuation Act, Court Fee Act, read with Rules 3 & 4 of the Punjab & Haryana High Court Rules. The valuation in this suit over Rs.5 lakhs is arbitrary and whimsical.
12. In the case of Abdul Hamid Shamsi Vs. Abdul Majid and Ors.; , the Supreme Court held:
"It is true that in a suit for accounts the correct amount payable by one party to the other can be ascertained only when the accounts are examined and it is not possible to give an accurate valuation of the claim at the inception of the suit. The plaintiff is, therefore, allowed to give his own tentative valuation. Ordinarily the Court shall not examine the correctness of the valuation chosen, but the plaintiff cannot act arbitrarily in this matter. If a plaintiff chooses whimsically a ridiculous figure it is tantamount to not exercising his right in this regard. In such a case it is not only open to the Court but its duty to reject such a valuation."
13. The Apex Court in M/s Commercial Aviation & Travel Company and Ors. Vs. Vimal Pannalal; has held:
"We are also of the view that the plaintiff cannot whimsically choose a ridiculous figure for filing the suit most arbitrarily where there are positive materials and/or objective standards of valuation of the relief appearing on the face of the plaint. These materials or objective standards will also enable the Court to determine the valuation for the purpose of Order VII, Rule 11(b) of the Code of Civil Procedure. Indeed, in Abdul Hamid Shamsi's case, it has been noticed by this Court that the plaintiff has laid a claim to a sum of Rs.1,26,796.72, besides another sum of over Rs.84,000/- as his share in the profit for a particular period by reference to the proceeding of the Income-tax Department mentioned in paragraph 11 of the plaint. Further a copy of the profit and loss account for the calender year 1979 was annexed by the plaintiff to the additional affidavit filed on his behalf before this Court, which also gave positive indication as to the valuation of the relief. The plaintiff in that case valued the suit without making any reference whatsoever to those materials or objective standards available to him and in the context of these facts, this Court made the above observation. But if there be no material or objective standard, the plaintiff's valuation has to be accepted."
14. In A.KA.CT.V.C.T Meenakshisundaran Chettiar Vs. A.KA.CT.V.C.T. Venkatachalam Chettiar; , the Supreme Court held that in suits for account, it is not possible for the plaintiff to estimate correctly the amounts which he may be entitled to held:
"But it is necessary that the amount at which he values the relief sought for should be a reasonable estimate.".
The Supreme Court further held in paragraph 7 of the same judgment as follows :
If on the materials available before it the Court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued, the plaint is liable to be rejected. It is, therefore, necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case.
If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The plaintiff cannot arbitrarily and deliberately undervalue the relief.
15. Can it be said, in view of what their Lordship of the Supreme Court laid down in M/s Commercial Aviation & Travel Co. (supra) that in the suit before me that there is material on the basis of which it could be judged as to how all of a sudden in para 23(c) of the plaint the relief for rendition of account has been valued at Rs.5,50,000/-, whereas for the purpose of Court fee it has been valued at Rs.200/-? I am of the opinion that the plaintiff has chosen said figure for filing this suit in an arbitrary manner in this Court, thereby giving an artificial pecuniary jurisdiction to this Court.
16. Arguments have been advanced before me by the learned counsel that this Court is having concurrent jurisdiction in terms of Section 62 of the Copyright Act and Section 106 of the Trade & Mercantile Marks Act. There are no two opinions that in case where pecuniary valuation of the suit is over Rs.5 lakhs, this Court has got the jurisdiction to entertain the suit exercising Original Civil Jurisdiction. Section 62 of the Copyrights Act and Section 106 of the Trade & Merchantile Marks Act give jurisdiction to this Court on the Original Side to hear the suit in the same manner as the Court of District Judge subject to the pecuniary jurisdiction of over five lakhs of rupees.
17. Section 15 of the Code of Civil Procedure on the statute book lays down that :
"15. Court in which suits to be instituted_ Every suit shall be instituted in the Court of the lowest grade competent to try it."
Thus when there are two forums available to the plaintiff, the plaintiff has to file the suit at the Court of the lowest grade. The reasoning of Section 15 of the Code of Civil Procedure that every suit should be instituted in the Court of the lowest grade competent to try it, is intended for the protection of the Courts of higher grade from over-burderning. The suit like the one before me has been filed by fixing a whimsical and arbitrary valuation with no material whatsoever. Thousands of suits are pending on the Original Side of the High Court. Litigants are waiting for more than 20 years for their substantive suits to be heard and rights determined but on account of three lines in the plaint all these helpless litigants, having paid Court fee, are sidelined to decide an interlocutory application. This is not what the rule of law is meant for. Unnecessarily overburdening the Court system when there is efficacious machinery available, the ingenuity of making averment in the plaint regarding fixation of the valuation for the purpose of jurisdiction, in my opinion, will not invest this Court with the jurisdiction to try the suit. For the reasons stated above, the plaint is returned with a direction that the same may be filed in the Court of District Judge having jurisdiction to deal with the matter.
18. Copy of the judgment be placed in the files of Suit Nos.348/98, 185/98 and 184/98.