ORDER
S.P. Khare, J.
1. This is a revision by the plaintiff against the order by which she has been directed to pay advalorem Court Fee on Rs. 2,61,922/-.
2. The plaintiff is widow of Sheikh Wahab and defendant No. 4 Sheikh Mehboob is his father. Sheikh Wahab was a school teacher in a Government School in Paraswara Block. He died on 20-5-1999. A sum of Rs. 2,61,922/- is payable by the Government as death-cum-retirement dues. The plaintiff claims that he had nominated her during his life time to receive these dues in the event of his death; he had done so as per Government Rules and therefore she alone is entitled to the said amount. The defendant No. 4 submitted an application under Section 372 of the Indian Succession Act for grant of the succession certificate. The plaintiff also submitted an application for the same purpose. An order was passed on 7-8-2000 for grant of succession certificate in respect of l/4th amount in favour of the plaintiff and for 3/4th amount in favour of the defendant No. 4 as per Muslim Law of inheritance. That order was maintained in appeal also. The plaintiff filed a revision against that order. That was also dismissed with an observation that she may have recourse to the regular civil suit. Such a suit can be filed as per Section 387 of the Indian Succession Act. The plaintiff has filed the suit seeking the declaration that she alone is entitled to receive the amount on the basis of the nomination in her favour as per Government rules. She has valued the suit for declaration at Rs. 5,000/- and paid Court Fee of Rs. 500/-. She has valued the suit for the purpose of pecuniary jurisdiction at Rs. 2,61,922/- and filed it before the Second Additional District Judge, Balaghat.
3. The Trial Court framed a preliminary issue and after hearing both the sides directed the plaintiff by the impugned order to pay advalorem Court Fee.
4. After hearing the learned Counsel for both the sides this Court is of the opinion that the impugned order is contrary to law. The plaintiff is not seeking recovery of money from anyone. The money is payable by the Government to the person who is legally entitled to it. The dispute is between the plaintiff and the defendant No. 4. The plaintiff is entitled to seek declaratory relief under Section 34 of the Specific Relief Act and Section 387 of the Indian Succession Act. It has been held by this Court in Savitri Devi v. Smt. Manorama Bai, 1998(1) MPLJ 254 and Ashish Kumar v. Leela Bai, 2002(2) M.P.H.T. 114 – 2002 (3) MPU 110 that an enquiry under Section 373 is of a summary nature. Section 387 of this Act enables an unsuccessful party to a proceeding for succession certificate to file a regular suit in a Competent Civil Court on the same question. Therefore, the suit for declaration alone is maintainable. There is no need of seeking any further or consequential relief.
5. Now for declaratory relief the fixed Court Fee is payable as per Schedule II Article 17 of the Court Fees Act. It has been held by this Court in Dharmraj Singh v. Vaidya Nath, 2002(1) M.P.H.T. 301 = 2002(1) MPLJ 458, that in a case where fixed Court Fee is payable as per Schedule II, Article 17 of the Court Fees Act for the relief of declaration Section 8 of the Suits Valuation Act is inapplicable for valuing the suit for the purpose of pecuniary jurisdiction as that section applies when advalorem Court Fee is payable in certain types of suits.
6. In a case where fixed Court Fee is payable as per Schedule II, Article 17 of the Court Fees Act, the suit is not required to be valued for purposes of Court Fee. Payment of fixed Court Fee implies that there is no need of valuing the suit for purposes of Court Fee. The suit is, however, required to be valued for purpose’s of pecuniary jurisdiction. As already stated Section 8 of the Suits Valuation Act is not attracted as advalorem Court Fee is not payable. Therefore, the only provision of this Act which is attracted is Section 9. It provides for determination of value of certain suits by High Court. It applies to cases where the suit does not admit of being “satisfactory valued”. No rules have been framed under Section 9 for determining the value for purposes of pecuniary jurisdiction in respect of suits for declaration other than those relating to land and therefore the plaintiff can put any reasonable valuation for the purpose of pecuniary jurisdiction. Section 9 applies to cases where fixed Court Fee is payable in respect of suits other than lands. It is not correct to say that the value fixed for the jurisdiction becomes the value or purposes of Court Fee.
7. In Emperor v. Ralla Ram, AIR 1946 Lahore 94, a Full Bench, of Lahore High Court has held that Section 8 applies to advalorem case where the value of the subject-matter is satisfactorily ascertainable. Section 9 applies to all cases, whether advalorem or not, in which the value of the subject-matter cannot be satisfactorily ascertained.
8. It has been argued on behalf of the respondent No. 4 that this revision is not maintainable in view of the proviso to Section 115(1), CPC as the impugned order has been passed “in the course of the suit’ and even if it had been made in favour of the party applying for revision, it would not have finally disposed of the suit. As discussed above the impugned order demanding Court Fee advalorem on Rs. 2,61,922/- is palpably wrong and it must be set aside. This can be done by this Court in exercise of the power of superintendence even if no revision lies under Section 115, CPC. There is flagrant violation of law calling for intervention of this Court. (D.N. Banerji v. P.R. Mukherjee, AIR 1953 SC 58). There is an error of law apparent on the face of the record in the impugned judgment.
9. In the result the impugned order is set aside and it is held that the suit has been properly valued for purposes of pecuniary jurisdiction and proper Court fee has been paid.