The suit was filed on fixed court fee of Rs.100/- which was available to Plaintiff for the relief of declaration of nullity of his
marriage alone. The learned Judge has correctly held that the prayer of
possession is required to be separately valued and that it is to be valued as per market rate of the suit property. Since it was never valued, it
would have to be valued as on the date of the valuation. It is an abuse of court process for a party to smuggle in a prayer for possession in a petition for declaration of nullity of marriage for which alone the fixed
court fee is specified.
16. Consequently the impugned order would be required to be ba
interfered with and substituted by the following order.
1. The Petitioner in the Family Court Petition shall value the suit om
property at the market rate prevailing on the date of valuation taking the ready reckoner issued by stamp authority as the base value and pay the court fee as per valuation on the date of the valuation failing which the suit with regard to prayer of B
possession would stand rejected / dismissed.
2. He would have liberty to file a separate suit in that behalf.
Bombay High Court
Rt vs Vijaykumar Shivdasani - on 25 June, 2013
Bench: R. S. Dalvi1
Harshita Shivdasani
V/s.
Vijaykumar Shivdasani
1. Rule. Made returnable forthwith.
2. The Petitioner wife has challenged the order of the Family Court No.6, Bandra, Mumbai dated 25 th July, 2012 directing the y
Petitioner to value the relief of possession in his petition as on the date ba
of the filing of the petition as per valuation made by the Sub Registrar, Borivali, Mumbai.
3. The Respondent husband filed a petition for declaration of om
nullity of the marriage and for obtaining vacant and peaceful possession of the premises of the parties. The Petitioner husband paid fixed court fee "payable on the petition". That was the fixed court for payable in a B
petition for divorce or nullity of marriage. The Petitioner did not at all value the relief of possession and had paid no court fee for the relief of possession sought.
4. The wife took objection to the valuation of the petition in view of the prayer for possession of the flat mentioned in the petition. The wife claimed that the Petitioner must value the flat which he had not valued and hence applied for rejection of the plaint. Thereafter the ::: Downloaded on - 26/06/2013 11:41:41 ::: jsn 2 WP No.9521_2012 husband valued the suit property which the wife claimed was far less than the actual market value. The petitioner husband valued the suit property in 2009 U/s.6 (v) of the Bombay Court Fees Act at Rs.22 lacs rt
being the valuation as of the date of the fling of the Petition 9 years ou
prior thereto and paid Court fee of Rs.37,000/-.
5. The learned Judge accepted the wife's contention that the prayer must be valued at the market rate but had not accepted the C
contention that it must be valued as on date of the valuation. He has allowed the husband to value the Petition as on the date of the Petition.
6. The only aspect to be considered in this Writ Petition is h
whether such valuation would be required to be made as on the date of ig
the valuation when valued or as on the date of the petition though valued much later.
H
7. It must be at once stated that this is not the case where relief has been valued inadequately and the Court has called upon the party to value the relief in the plaint adequately though adequate valuation y
may also include the compensation by way of interest and penalty for the inadequate valuation for many years as the court would deem fit. ba
8. The Petition has been filed in 2000. The Petitioner relied upon a gift deed of 1997 for determination of the value of the suit om
premises in the year 2012. The learned Judge has called upon the Petitioner to determine the market value of the suit premises as on the date of the suit. The order itself is passed 12 years after the filing of the suit.
B
9. Counsel on behalf of the Respondent husband relied upon a judgment of Single Judge of the Andhra Pradesh High Court in the case of Koganti Sujani Vs. Vissamesetti Sankar Babu & 3 Ors., 2009(2) ALD141, to show that the valuation as on the date of the suit is material even if amendment to the plaint is made thereafter showing a higher valuation of the suit property.
10. In that case the Plaintiff sued for declaration that he was the ::: Downloaded on - 26/06/2013 11:41:41 ::: jsn 3 WP No.9521_2012 absolute owner of the 1/3rd share of the suit property in 2002. The suit came to be registered accepting value of the property and the Court fee which was paid thereon. The Plaintiff applied for amendment in 2006 rt
stating that the property would fetch more than Rs.1 cr. which was far ou
more than the valuation of the suit property on the date of the suit based upon such amendment. Defendant No.4 applied for directing Plaintiff to pay deficit court fee. The Court saw that the higher C
valuation was after the filing of the suit. The prices of the property may have gone up after filing of the suit. Hence for the hike in the market value of the suit land subsequent to the filing of the suit showing the h
value of the property as on date of the amendment, 4 years after the ig
filing of the suit was not accepted to direct the Plaintiff to pay additional court fee. The Court held that the higher value could not be H
taken for the purpose of the value of the suit.
11. This would be the position in case of real estate property. The property would consistently appreciate in value. More and more y
court fee is not required to be paid because the value of the property keeps appreciating pending the suit. In that case proper court fee was ba
paid upon proper valuation as on date of the suit. Hence it was held that "it was immaterial whether there was sudden hike in the market om
value of the land subsequently".
12. That case has no bearing upon the present issue. Mr. Lalwani rightly argued that that is not one such case. This is the case in which the prayer for possession has not been valued at all. B
13. The test of the contentions of the parties must be appreciated thus. If the suit is not valued at all no relief in that behalf can be granted. No plaintiff can be heard by the Court when the relief is not at all valued. The suit would have to be dismissed for want of any valuation. However, the Plaintiff would be entitled to file a separate suit for that relief. When the Plaintiff would file such suit, he would have to value the suit as on the date of such filing. The relief of possession ::: Downloaded on - 26/06/2013 11:41:41 ::: jsn 4 WP No.9521_2012 would have to be valued ad-volerum upon the market value of the property on the date of the filing of such suit.
14. Consequently when the Plaintiff fails to value the relief of rt
possession, he would have to value it as on the date of the valuation if ou
he desired to prosecute the same suit / petition for that relief also. It would be an abuse to allow the suit to be pending for as long as 13 years and then allow the Plaintiff to value it as on the date of filing of C
the suit.
15. The suit was filed on fixed court fee of Rs.100/- which was available to Plaintiff for the relief of declaration of nullity of his h
marriage alone. The learned Judge has correctly held that the prayer of ig
possession is required to be separately valued and that it is to be valued as per market rate of the suit property. Since it was never valued, it H
would have to be valued as on the date of the valuation. It is an abuse of court process for a party to smuggle in a prayer for possession in a petition for declaration of nullity of marriage for which alone the fixed y
court fee is specified.
16. Consequently the impugned order would be required to be ba
interfered with and substituted by the following order.
1. The Petitioner in the Family Court Petition shall value the suit om
property at the market rate prevailing on the date of valuation taking the ready reckoner issued by stamp authority as the base value and pay the court fee as per valuation on the date of the valuation failing which the suit with regard to prayer of B
possession would stand rejected / dismissed.
2. He would have liberty to file a separate suit in that behalf.
3. Rule is granted to that extent and Writ Petition is disposed off accordingly.
( ROSHAN DALVI, J.)
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