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2004 DIGILAW 391 (MP)

Trilokinath Agrawal v. Sheelarani

2004-04-22

K.K.LAHOTI

body2004
JUDGMENT Petitioner is aggrieved by order dt. 5.2.2004 by which the trial Court has rejected his application filed under Order 6 Rule 17 CPC. Facts in short of the case are that the petitioner filed a suit for declaration of title and permanent injunction against the respondents. In the suit petitioner valued the suit at Rs. 15 lakhs for the purposes of pecuniary jurisdiction but for the purposes of payment of court-fees, the suit was valued at Rs. 24,000/- and the court-fees paid was Rs. 3,360/- as described in para 15 of the plaint. The trial Court vide order dt. 28.11.2003 directed the petitioner to pay the appropriate court-fees on the valuation of the suit. As, under section 8 of the Suits Valuation Act, two different valuation cannot be put by the plaintiff, one for pecuniary jurisdiction and another for the payment of court-fees. This order was assailed by the petitioner by filing Writ Petition which was registered as W.P. 28744/03 and - finally decided on 5.1.2004, and the petitioner was granted liberty to move appropriate application before the trial Court for correcting the valuation and payment of appropriate court-fees. The petitioner after the aforesaid order moved two applications before the trial Court, one under Order 6 Rule 17 CPC, another under section 152 CPC by which plaintiff though stated that the land in question is agriculture land which is recorded in the revenue paper as revenue paying land and the court-fees is payable on the basis of twenty times of the land revenue but it appears that cleverly plaintiff has neither put any valuation nor has specified the court-fees payable on the plaint. The trial Court vide order dated 5.2.2004 rejected both the applications on the ground that previously plaintiff shown the land as diverted land and before the tehsil Court there is admission of the plaintiff that the land is diverted land and now, the plaintiff cannot withdraw his admission, and rejected the applications. This is the order which is assailed in this writ petition. Learned counsel appearing for the petitioner submits that the plaintiff has proposed the amendment showing the fact that the land is revenue paying land and the valuation is twenty times of the land revenue. This is the order which is assailed in this writ petition. Learned counsel appearing for the petitioner submits that the plaintiff has proposed the amendment showing the fact that the land is revenue paying land and the valuation is twenty times of the land revenue. If the trial Court was not satisfied with the contention of the petitioner, the trial Court ought to have ascertained the correct valuation and the plaintiff may be directed to correct the same within the time as may be fixed by the Court. In this regard he has placed his reliance of the Full Bench judgment of this Court in Subhash Chandra Jain v. M.P. Electricity Board and others [ 2001 (1) JLJ 81 = 2000 (4) MPHT 318 ] and contended that in view of the judgment of the Full Bench, it is the duty of the trial Court to ascertain the correct valuation and to direct the plaintiff to amend the plaint and to pay court-fees accordingly. Learned counsel appearing for the respondents supported the order passed by the trial Court and contended that the land is in fact diverted land, huge commercial construction over the land is standing which is apparent from the perusal of the map filed alongwith the plaint. The plaintiff has to put a proper valuation and to pay court-fees. The suit is for declaration with consequential relief of permanent injunction. Plaintiff in para 15 of the plaint has pleaded the valuation as 15 Lacs, he has to pay proper court-fees. The provisions of section 7 (iv) (c) of the Court Fees Act, 1870 shall apply in this case and plaintiff is bound to pay ad-velorem Court fees. To consider the contention of the parties, it is apparent from the perusal of para 15 of the plaint that the plaintiff initially filed suit showing the valuation of the suit Rs. 15 Lacs, for the purpose of pecuniary jurisdiction of the trial Court, the suit was valued accordingly. Though the plaintiff has tried to pay the court-fees on some lesser valuation but the case of the plaintiff was not that the land is revenue paying land and the valuation of the suit for the purpose of court-fees is twenty times of the land revenue. Though the plaintiff has tried to pay the court-fees on some lesser valuation but the case of the plaintiff was not that the land is revenue paying land and the valuation of the suit for the purpose of court-fees is twenty times of the land revenue. From the perusal of the plaint, it appears that the disputed property is not only open land but various construction including room, office, shop and godown as stated in para 2 of the plaint. It appears that the suit land includes the aforesaid construction and is being utilized for commercial purposes. In these circumstances, plaintiff when filing a suit for declaration and permanent injunction against the defendant, ought to have put a proper valuation for the purposes of pecuniary jurisdiction and for the payment of court-fees. When the previous valuation as put by the petitioner was found to be incorrect and thereafter petitioner was granted liberty to put a proper valuation in the case but in place of filing proper application, the petitioner has shifted his liability on the shoulders of the trial Court by filing aforesaid applications, which is not permissible under the law. Petitioner has to put definite proper valuation of the suit and to pay court-fees and thereafter if in the opinion of the trial Court, the valuation is arbitrary and the proper court-fees is not paid then only the trial Court to do the exercise for ascertaining the correct valuation and direct the petitioner to put correct valuation and pay court-fees. In this case nothing like this was done by the petitioner and the entire responsibility was tried to be shifted on the trial Court which is not permissible under the law. In Full Bench Subhash Chand Jain (supra) there was a reference by the Single Bench by which following questions were referred for consideration of Full Bench :- "2. The objection advanced by the defendants prevailed with the trial Court which held that the plaintiff was liable to pay ad-valorem court-fees. This view the trial Court took on the basis of this Court's judgment in Mangilal Jain v. MPEB, Jabalpur and others [1977 (II) MPWN 480]. Plaintiff challenged this order through revision petition which appeared before one of us (Brother Dipak Misra, J.). By order dated May 8, 2000, the case has been referred to larger Bench. After dealing with certain judgments on the question, learned Judge said- "9. Plaintiff challenged this order through revision petition which appeared before one of us (Brother Dipak Misra, J.). By order dated May 8, 2000, the case has been referred to larger Bench. After dealing with certain judgments on the question, learned Judge said- "9. It is to be noted that in Mangilal Jain (supra) reliance was placed on the case of Badrilal (supra) where Sathappa Chettiar (supra) was referred. Thus, I find that there is apparent conflict between Mangilal and Jagdish Prasa.d. It is also noticed, the Courts below are following Mangilal at times and Jagdish Prasad on certain occasions. In view of this I am of the considered opinion an authoritative pronouncement is called for on this point for better future guidance. As the matter relates to payment of court -fees and the whole case relates to that I am inclined to recommend the whole case for reference to the large Bench under 9 (1) of the M.P. High Court Rules. The question that requires to be answered is whether Mangilal Jain (supra) lays down the correct law or Jagdish Prasad (supra)" This is how the matter comes before the full bench." The full Bench decided this question, held thus :- "6. The suits which are mentioned under section 7 (iv) of the Act of 1970 are of such nature where it is difficult to lay down any standard of valuation. This means that the valuation of the reliefs will have to be made by the plaintiff under the entry against which the suit is preferred. Provisions of Order 7 Rule 11-B of the CPC provides inter alia that the plaint shall be rejected where the relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time fixed by, it, fails to do so. Under this provision, Court has to reach a finding of undervaluation, specify the correct valuation of the relief, determine the same and require the plaintiff to correct the same within the time fixed by the Court. Failure to do so would entail rejection of the plaint. Obviously, the Court would undertake this enquiry in the interest of revenue after realizing that the valuation of plaintiff is demonstratively unreasonable and case for interference is made out. Failure to do so would entail rejection of the plaint. Obviously, the Court would undertake this enquiry in the interest of revenue after realizing that the valuation of plaintiff is demonstratively unreasonable and case for interference is made out. Otherwise the plaintiff is free to make his own estimation of the reliefs sought in the plaint and the valuation both for purposes of court fee and jurisdiction has to be ordinarily accepted." The aforesaid position is not in the present case. In this case the applications filed by the petitioner was misconceived. The petitioner ought to have valued the suit properly and to pay court-fees, which was not done. In the aforesaid circumstances, the trial Court has rightly rejected both the applications and has not committed any error of jurisdiction warranting interference of this Court. At this stage, learned counsel appearing for the petitioner submits that petitioner be permitted to withdraw the suit with liberty to file a fresh suit after putting a proper valuation and payment of court-fees. Prayer is opposed by learned counsel for the respondents on the ground that when the petitioner has been directed to pay the proper court-fees and to avoid the aforesaid order, petitioner cannot be permitted to withdraw the suit to circumvent the order passed by the trial Court. In the aforesaid circumstances, the suit may be dismissed in place of granting permission to withdraw. The liberty as prayed may be considered with reference of Order 7 Rule 11 CPC which reads as under :- "11. In the aforesaid circumstances, the suit may be dismissed in place of granting permission to withdraw. The liberty as prayed may be considered with reference of Order 7 Rule 11 CPC which reads 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 under-valued, and the plaintiff, on being required by the Court to so 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 proper 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 so; (d) Where the suit appears from the statement in the plaint to be barred by any law; (e) Where it is not filed induplicate; (f) Where the plaintiff fails to comply with the provisions of rule 9 : [Provided that the time fixed by the Com1 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 stamp-papers, 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.] The aforesaid provision provides that where the relief claimed is properly valued but the plaint is written on the insufficient stamp and plaintiff on being required to supply requisite stamp paper within time fixed by the trial Court, fails to do so, the plaint shall be rejected. Order 7 Rule 13 CPC provides that the rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. The aforesaid provisions permit the plaintiff to file fresh suit even in case the plaint is rejected because of non supply of the requisite court-fees as directed by the trial Court. The aforesaid provisions permit the plaintiff to file fresh suit even in case the plaint is rejected because of non supply of the requisite court-fees as directed by the trial Court. In the present case, even if this petition is dismissed and petitioner did not pay the court-fees the consequence will be rejection of plaint under Order 7 Rule 11 CPC, but the suit cannot be dismissed for non-payment of court-fees. In the aforesaid circumstances, the prayer made by learned counsel for the petitioner is allowed. Petitioner is permitted to withdraw the suit with liberty to file fresh suit after putting a proper valuation and on payment of proper court-fees. With the aforesaid liberty, this petition stands finally disposed of. Proceedings pending before the trial Court shall stand closed. No order as to costs.