Tuesday, 20 June 2017

Whether court can consider defence plea of insufficiency of court fees while deciding application for rejection of plaint?

The court shall begin with an assumption, for the
purpose of determining the court-fees payable on the plaint that
the averments made therein by the plaintiff are correct. The
defence taken in the written statement may not be relevant for
the purpose of deciding the payment of the court-fee by the
plaintiff.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR

S.B. Civil Writ Petition No. 8973 of 2014
 Jagdish Sahu 
V
Sonu S/o Sampatram
 Dated: 31/01/2017

 MR. JUSTICE DINESH CHANDRA SOMANI
Citation: AIR 2017 Raj 46

This writ petition under Article 226 & 227 of the
Constitution of India is directed against the order dated 12-08-
2014 passed by Additional District & Sessions Judge No. 1, Alwar,
whereby the applications filed by the defendant No. 1 & 3 under
Order 7 Rule 11 of CPC read with Section 11 of The Rajasthan
Court-Fees and Suits Valuation Act, 1961. (hereinafter referred
to as “the Act”) have been allowed and the plaintiff/petitioners
were directed to pay court-fees on market value of the property
under Section 24 (a) and 35 (1) of the Act, the value as
mentioned in the plaint.
The material facts necessary for disposal of this petition are
that the plaintiff/petitioners filed a suit for partition of suit
property by metes and bounds and separate possession, for
declaration of sale deed executed by defendant No. 1 in favour of
defendant No. 3 on 02-09-2013 regarding part of the disputed
property to be ineffective, void and not binding as against the
plaintiffs and for permanent injunction. The suit was, inter-alia
filed contending therein that the plaintiffs and defendant No. 1 &
2 are of same family and are successors of Late Sampatram and
the defendant No. 3 Ajay Kumar is a third person. It was also
contended that one property of Sampatram, which is a residential
house situated in Village Malakhera is undivided property of joint
family, in which the plaintiffs and defendant No. 1 & 2 are having
equal rights. The said property is in joint possession and
occupation of the plaintiffs. It was further, contended that on 02-
09-2013, the defendant No. 1 has unauthorizedly executed a sale
deed of part of the property in favour of the defendant No. 3,
which is shown in yellow colour in the site plan annexed with the
plaint. Since the property was undivided property of joint family
and was in joint possession of the plaintiffs of the suit, therefore,
a fixed court fees of Rs. 200/- for the relief of partition has been
paid and separate court fees has been paid for the relief of
declaration and permanent injunction to be valued at Rs. 400/-
each.
Thereafter, defendant No. 2 filed a written statement
admitting the contents of the plaint and prayed to decree the
suit. The defendant/respondent Nos. 1 & 3 filed separate written
statements denying the material averments of the plaint and
prayed to dismiss the suit of the plaintiffs.
Defendant Nos. 1 & 3 filed separate applications under
Order 7 Rule 11 of CPC read with Section 11 of the Act,
contending therein that the plaintiffs pleaded that on 24-09-
2013, they found defendant No. 3 in possession of the property
shown in yellow colour and thereby admitted that the property in
dispute is not in joint possession, therefore, plaintiffs had to pay
ad-valorem court-fees on the market value of their share in the
property, whereas, they paid court fee of Rs. 200/- only. It is
also stated that the plaintiffs also sought prayer of declaration
challenging the sale deed dated 02-09-2013, for which they had
to pay court-fee under Section 24 (a) of the Act, on market value
of the property, but the plaintiffs did not pay ad-velorem courtfee
on the market value. After hearing learned counsel for the
parties, the learned Trial court allowed the applications vide
impugned order dated 12-08-2014 and passed the directions as
noticed hereinabove. Being aggrieved with the said order, the
plaintiff/petitioners have preferred this writ petition.
Learned counsel for the petitioners Mr. Bipin Gupta
submitted that it is not disputed that the property in dispute was
purchased by Sampatram, the plaintiffs and defendant Nos. 1 & 2
are the successors of Sampatram and, thus, are having joint
ownership. Therefore, property remains joint property and the
court fees for the relief of partition of the joint property, has to
be Rs. 200/- as per the provisions of Section 35 (2) of the Act,
irrespective of the valuation of the property. Learned counsel for
the petitioners also submitted that as the plaintiffs were not
party to the sale deed, in respect whereof, the relief of the
declaration has been sought, therefore, court-fee is payable
under Section 24 (e) of the Act. Thus, the learned trial court has
committed gross illegality in passing the impugned order and
prayed to accept the petition, to quash and set aside the
impugned order and to dismiss the applications filed by the
defendant-respondents
Learned counsel for the petitioners placed reliance on:-
(1) 2012(3) WLC (Raj.) 142S.B. 
Imortal Infrastructure Private Ltd. Vs. Lookwell Life
Space Pvt. Ltd. & Ors.
(2) AIR 2002 Supreme Court 233
Kamaleshwar Kishore Singh Vs. Paras Nath Singh &
Ors.
(3) AIR 1987 Supreme Court 2085(1)
Smt. Tara Devi Vs. Sri Thakur Radha Krishna Maharaj
(4) 2004(1) WLC (Raj) 544
Smt. Meena @ Hema Vs. Smt. Komal Devi & Ors.
(5) (2007) 1 Supreme Court Cases 694
Jagannath Amin Vs. Seetharama (dead) by LRs. & Ors.
(6) AIR 1980 Supreme Court 691
Neelavathi & Ors. Vs. N. Natarajan & Ors.
Per contra, learned counsel for the respondent Nos. 1 & 3
Mr. Mahendra Goyal vehemently opposed the submissions made
by learned counsel for the petitioners. Learned counsel submitted
that the plaintiff/petitioners sought relief of declaration and
separate possession, therefore, they are liable to pay court-fee
under Section 24 (a) of the Act for the relief of declaration, and
under Section 35 (1) of the Act for the relief of partition,
therefore, the learned Trial court was justified in passing the
impugned order. Learned counsel also submitted that the order
passed by the learned Trial Court does not call for any
interference by this Court and prayed to dismiss the petition,
being devoid of substance.
Learned counsel for the respondents placed reliance on:-
1. AIR 1978 Rajasthan 123
Makhan Lal & Anr. Vs. Urban Improvement
Trust, Jaipur City & Anr.
2. Copy of order dated 08-12-2014 passed by
Coordinate Bench at Jodhpur in SB CWP No.
7765/2014, titled Smt. Ratan Devi Vs. Gawra
Devi & Ors. 
3. Copy of order dated 03-07-2013 passed by
Coordinate Bench at Jodhpur in SB Civil CWP No.
3550/2011, titled Dilip Singh & Anr. Vs. Govind
Agarwal & Ors.
I have considered the rival submissions of learned counsel
for the parties and perused the material available on record.
To deal with the present controversy, relevant provisions of
the Act of 1961, are as under:-
“11. Decision as to proper fee. - (1) In
every suit instituted in any Court, the Court
shall, before ordering the plaint to be
registered, decide on the materials and
allegations contained in plaint and on the
materials contained in the statement, if
any, filed under section 10, the proper fee
payable thereon, the decision being
however, subject to review, further review
and correction in the manner specified in
the succeeding sub-sections.
(2) Any defendant may plead that the
subject-matter of the suit has not been
properly valued or that the fee paid is not
sufficient. All questions arising on such
pleas shall be heard and decided before the
hearing of the suit as contemplated by
Order XVIII in the First Schedule to the
Code of Civil Procedure, 1908 (Central Act 5
of 1908). If the Court decides that the
subject-matter of the suit has not been
properly valued or that the fee paid is not
sufficient, the Court shall fix a date before
which the plaint shall be amended in
accordance with the Court's decision and
the deficit fee shall be paid. If the plaint be
not so amended or if the deficit fee be not
paid within the time allowed, the plaint
shall be rejected and the Court shall pass
such order as it deems just regarding costs
of the suit.
....... ....... .......
..…... ....... .......”
“24. Suits for declaration. - In a suit for
a declaratory decree or order, whether with
or without consequential relief, not falling
under section 25 -
(a) where the prayer is for a declaration
and for possession of the property to which
the declaration relates, fee shall be
computed on the market-value of the
property, subject to a minimum fee of
twenty rupees;
(b) where the prayer is for a declaration
and for consequential injunction and the
relief sought is with reference to any
immovable property, fee shall be computed
on one-half of the market-value of the
property, subject to a minimum fee of
twenty rupees;
(c) where the prayer relates to the
plaintiff’s exclusive right to use, sell, print
or exhibit any mark, name, book, picture,
design or other thing and is based on an
infringement of such exclusive right, fee
shall be computed on the amount at which
the relief sought is valued in the plaint
subject to a minimum fee of forty rupees;
(d) where the prayer is for a declaration
with reference to any property and no
consequential relief is prayed for, fee shall
be computed on the market-value of the
property, subject to a minimum fee of
twenty rupees;
(e) in other cases, whether the subjectmatter
of the suit is capable of valuation or
not, fee shall be computed on the amount
at which the relief sought is valued in the
plaint, subject to a minimum fee of twentyfive
rupees.”
“35. Partition suits. - (1) In a suit for
partition and separate possession of a
share in joint family property or of property
owned, jointly or in common, by a plaintiff
who has been excluded from possession of
such property, fee shall be computed on
the market-value of the plaintiff's share of
the property.
(2) In a suit for partition and separate
possession of joint family property or
property owned, jointly or in common, by a
plaintiff who is in joint possession of such
property, fee shall be paid at the following
rates, namely:-
(i) Rupees thirty if the value of
plaintiff's share is Rs. 5,000 or
less;
(ii) Rupees one hundred if the value
is above Rs. 5,000 but does not
exceed Rs. 10,000; and
(iii) Rupees two hundred if such
value exceeds Rs. 10,000.
…… …… ……
…… …… …..”
Provisions of Order 7 Rule 11 of CPC are as under:-
11. Rejection of Plaint.- The plaint shall
be rejected in the following cases:-
(a) Where it does not disclose a cause of
action;
(b) where the relief claimed is undervalued,
and the plaintiff, on being required
by the Court to correct the valuation within
a time to be fixed by the Court, fails to do
so;
(c) where the relief claimed is properly
valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on
being required by the Court to supply the
requisite stamp-paper within a time to be
fixed by the Court, fails to do do;
(d) where the suit appears from the
statement in the plaint to be barred by any
law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with
the provisions of rule 9.
Provided that the time fixed by the Court
for the correction of the valuation or
supplying of the requisite stamp-papers
shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the
plaintiff was prevented by any cause of an
exceptional nature from correcting the
valuation or supplying the requisite stamppapers,
as the case may be, within the time
fixed by the Court and that refusal to
extend such time would cause grave
injustice to the plaintiff.
From bare look of provisions of sub-Section (2) of Section
11 of the Act of 1961, it reveals that if the defendant pleads that
the subject matter of the suit has not been properly valued or
that the fee paid is not sufficient, it is enjoined upon the court to
hear and decide all questions arising on such pleas, before
hearing of the suit under Order 18 of CPC.
In Imortal Infrastructure Pvt. Ltd. Vs. Lookwell Life
Space Pvt. Ltd. & Ors. (supra), coordinate Bench of this Court
relying upon the decision of Hon’ble Apex Court in Saleem Bhai &
Ors. Vs. State of Maharashtra & Ors. reported in 2003 (1) SCC
557, has held that for the purposes of deciding an application
under clauses (a) and (d) of Order 7 Rule 11 of the Code, the
averments in the plaint are germane; the pleas taken by the
defendant in the written statement would be wholly irrelevant at
that stage. The crux is that the disputed questions cannot be
decided at the time of considering an application filed under
Order 7 Rule 11 of CPC.
In Neelavathi & Ors. Vs. N. Natarajan & Ors. (supra),
Honb’le Apex Court, while interpreting “co-owner plaintiff that
he could not remain in joint possession,” has held that the
question of court-fee must be considered in the light of the
allegations made in the plaint and it’s decision cannot be
influenced either by the pleas in the written statement or by the
final decision of the suit on merits. All the material allegations
contained in the plaint should be construed and taken as a whole.
It was also held that the general principle of law is that in the
case of co-owners, the possession of one is in law possession of
all, unless ouster exclusion is proved. To continue to be in joint
possession in law, it is not necessary that the plaintiff should be
in actual possession of the whole or part of the property. Equally
it is not necessary that he should be getting a share or some
income from the property. So long as his right to a share and the
nature of the property as joint is not disputed, the law presumes
that he is in joint possession, unless he is excluded from the
possession.
In Tara Devi Vs. Thakur Radha Krishna Maharaj
(supra), Hon’ble Apex Court has held that the plaintiff is free to
make his own estimation of the reliefs sought in the plaint and
such valuation both for the purposes of court-fee and jurisdiction,
has to be ordinarily accepted. It is only in cases where it appears
to the Court on a consideration of the facts and circumstances of
the case that the valuation is arbitrary, unreasonable and the
plaint has been demonstratively undervalued, the Court can
examine the valuation and can revise the same.
In Kamaleshwar Kishore Singh Vs. Paras Nath Singh
& Ors. (supra), Hon’ble Apex Court has held that it is well settled
that the Court-fee has to be paid on the plaint as framed and not
on the plaint as it ought to have been framed, unless by
astuteness employed in drafting the plaint the plaintiff has
attempted at evading payment of court- fee or unless there be a
provision of law requiring the plaintiff to value the suit and pay
the court-fee in a manner other than the one adopted by the
plaintiff. The court shall begin with an assumption, for the
purpose of determining the court-fees payable on the plaint that
the averments made therein by the plaintiff are correct. The
defence taken in the written statement may not be relevant for
the purpose of deciding the payment of the court-fee by the
plaintiff.
In Jagannath Amin Vs. Seetharama (supra), Hon’ble
Apex Court relying on it’s earlier decision in Neelavathi Vs. N.
Natarajan case (supra), has held that before the plaintiffs could
be called upon to pay court fee under Section 37(1) of the Act on
the ground that they had been excluded from possession, it is
necessary that on a reading of the plaint, there should be a clear
and specific averment in the plaint that they had been ‘excluded’
from joint possession to which they are entitled in law. The
averments in the plaint that the plaintiffs could not remain in
joint possession as they were not given any income from the
joint family property would not amount to their exclusion from
possession. We are unable to read into the plaint a clear and
specific admission that the plaintiffs had been excluded from
possession.”
In Smt. Meena @ Hema Vs. Smt. Komal Devi & Ors.
(supra), Coordinate Bench of this court, relying on judgment of
Hon’ble Apex Court in Neelavathi & Ors. Vs. N. Natarajan & Ors.
(supra), has held that the precise distinction between the two
sub-Sections (1) & (2) is that for sub-Section (1), the property
must be owned jointly, or in common by the plaintiff, and he may
have been excluded from possession of such property, in which
event, the court fees is payable on the market value of the
plaintiff’s share. On the other hand, where the suit is for partition
and separate possession of the family property, or the property
owned jointly, or in common by the plaintiff, who is in joint
possession of such property, fee shall be paid at the fixed rates
mentioned therein.
In Dilip Singh Shaktawat & Anr. Vs. Govind Agarwal &
Ors. (supra), Coordinate Bench of this court has observed that
scope of interference by this court under Article 227 of the
Constitution of India with the interlocutory order passed by the
trial Court, is narrow and such orders are not required to be
upset, unless there is serious miscarriage of justice.
In Makhan Lal & Anr. Vs. Urban Improvement Trust
(supra), the respondent UIT filed a suit against the petitioners for
declaration and possession of the suit property. The suit was
valued at Rs. 10,000/- and it was stated that court fee paid as
provided under Section 24 (a) of the Act of 1961. Defendants
raised issue that the valuation of the suit property is Rs. 50,000/-
and therefore, the court-fees paid is insufficient. Coordinate
Bench of this court has held that if the plaintiff was a party to the
sale deed, or to the decree then the court fees would have been
payable under Section 38 of the Act, but where the plaintiff was
not a party either to the decree or to the sale deed, the courtfees
would be payable under Section 24 (a) of the Act.
In Smt. Ratan Devi Vs. Smt. Gawra Devi & Ors. (supra),
the plaintiff filed a suit for partition and claimed that as a coowner,
she was in physical possession of the suit property and
paid court-fees of Rs. 200/-. The suit was filed on 02-01-2012
and on the same day at about 5:15 PM, the defendant Nos. 1 to
4 transferred the suit property. Therefore, the plaintiff filed
amendment application which was allowed. Coordinate Bench of
this court observed that the court-fees paid in the case of
unamended plaint, is proper, however, after amendment in the
plaint on account of the fact that the property came to be
transferred on the date of filing of the suit itself, the plaint was
amended and relief seeking declaration qua the transfer made to
the extent of plaintiff’s share has been sought, the nature of
reliefs sought by the plaintiff by way of amendment, clearly
brings the same within the four corners of Section 24 of the Act
of 1961 and the court-fees has to be computed on the market
value of the property.
From the discussions made above, it is settled position of
law that the relevant facts which need to be taken into
consideration for deciding an application under Order 7 Rule 11
(a) and (d) of CPC, are the averments made in the plaint, and
the pleas taken by the defendant in the written statement would
be wholly irrelevant at that stage and the disputed questions
cannot be decided at the time of considering an application filed
under Order 7 Rule 11 of CPC. It is not disputed that objections
of the defendants with regard to insufficiency of court-fee, should
be heard and decided before the hearing of the suit as
contemplated by Order XVIII of the Code, 1908. It is also settled
law that the plaintiff is free to make his own estimation of the
reliefs sought in the plaint and such valuation for the purpose of
court-fee has to be ordinarily accepted.
According to the plaint filed by the petitioners, the disputed
property is a residential house shown in the site plan and
defendant No. 1 executed a sale deed of a part of the disputed
property in favour of defendant No. 3, which is shown in yellow
colour in the site plan. The plaintiffs also pleaded that the
disputed property is undivided joint property of plaintiffs and
defendant Nos. 1 & 2, and the property is in their joint
possession. The sale deed executed by defendant No. 1 in favour
of defendant No. 3, is of part of the property and not of whole of
the property in dispute, therefore, it does not reveal that the
plaintiffs have been ousted from the whole property. Moreover, it
reveals that the plaintiffs are in possession of part of the
disputed property. The plaintiffs sought the relief of partition by
metes and bounds and separate possession of their share in the
property. As the suit is for partition and separate possession of
the property owned jointly, fee shall be payable at the fixed rates
mentioned in sub-Section (2) of Section 35 of the Act of 1961
and not under sub-Section (1) of Section 35.
According to the plaint, the plaintiffs are in joint possession
of the property. Thus, it cannot be accepted that
plaintiff/petitioners have filed the suit for the relief of declaration
and possession. According to Section 38 of the Act, where the
executant of a deed, wants it to be annulled, he has to seek
cancellation of the deed and has to pay ad-valorem court-fee on
the consideration stated in the sale deed. If a non-executant,
who is not in possession and sues for declaration that the deed is
null and void and does not bind him and his heirs and also for
possession of the property, he has to pay ad-valorem court-fee
on the market value of the property, as mentioned in Section 24
(a) of the Act. If a non-executant, who is in possession and sues
for declaration and for consequential injunction and the relief
sought is with reference to any immovable property, he has to
pay court-fee on one half of the market value of the property as
mentioned in Section 24 (b) of the Act. Section 24 (e) of the Act
provides that in other cases, whether the subject matter of the
suit is capable of valuation or not, fee shall be computed on the
amount at which the relief sought is valued in the plaint, subject
to a minimum fee of twenty-five rupees.
As stated above, the plaintiff/petitioners are non-executant
of the sale deed and they are in possession and they sued for a
declaration that the deed is null and void and does not bind
them, thus, provisions of clause (a), (b), (c) & (d) of Section 24
of the Act does not apply in this case for the purpose of payment
of court-fee on the plaint. Therefore, the present case comes
under the category of clause (e) of Section 24 of the Act and the
court-fee shall be computed on the amount at which the relief
sought is valued in the plaint, subject to a minimum fee of
twenty-five rupees.
The case of Smt. Ratan Devi Vs. Smt. Gawra Devi &
Ors. (supra), is distinguishable due to difference in facts and
circumstances of the case, therefore, is not of much help to the
respondents.
In Makhan Lal & Anr. Vs. Urban Improvement Trust
(supra), the suit was filed for the relief of declaration and
possession. Whereas, in present case the plaintiffs sought the
relief of declaration, pleading that they are in joint possession of
the property. As such, the said judgment apparently in no way,
helps the respondents.
In view of the above discussions, provisions of Section 24
(e) and 35 (2) of the Act of 1961 are applicable in the present
case for the purpose of payment of court-fee on the plaint filed
by the petitioners, and provisions of Section 24 (a) and 35 (1) of
the Act can not be made applicable in this case.
From perusal of copy of the plaint made available to us, it
reveals that the plaintiff/petitioners paid sufficient court-fee for
the relief of partition and separate possession of their share in
the property in dispute, but the court-fee paid for the relief of
declaration is insufficient, as they did not pay minimum court-fee
of twenty-five rupees prescribed under Section 24 (e) of the Act.
Therefore, learned Trial Court should fix a date before which the
plaint shall be amended in accordance with the observation of
this Court and the deficit court-fee shall be paid.
In view of the discussions made above, there will be serious
miscarriage of justice, if the impugned order dated 12-08-2014
passed by the learned Trial Court is not quashed and allowed to
sustain.
Consequently, the writ petition filed by the
plaintiff/petitioners is allowed, impugned order dated 12-08-2014
passed by the learned Trial Court is quashed and set aside, and
the applications filed by the defendant/respondents No. 1 & 3 are
dismissed. However, the learned Trial Court shall fix a date
before which the plaint shall be amended in accordance with the
observation made in preceding paragraph. No costs.
(DINESH CHANDRA SOMANI),J.

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