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2006 DIGILAW 499 (ORI)

Manilal Agrawal v. Ghanashyam Das Agrawal

2006-07-10

A.K.PARICHHA

body2006
ORDER 10.07.2006 — The petitioner, who is defendant No.1 in Title Suit No.56 of 1997 in the Court of learned Civil Judge (Senior Division), Titila¬garh, has filed this revision challenging the legality of the order dated 22.12.2005 passed in that suit on the petition under Order 7 Rule 11(c), C.P.C. filed by the petitioner. Opposite party No.1 as plaintiff the above noted Title Suit No.56 of 1997 with a prayer for partition of the suit schedule properties. Petitioner-defendant No.1 filed a petition under Order 7 Rule 11(C), C.P.C. praying for dismissal of the suit for non-filing of proper court- fee, inter alia, indicating that the suit filed by opposite party No.1 is not a suit for partition simplicitor, but in the guise of a partition suit, prayer has also been made for declaring some sale transactions as void and so ad valorem court-fee is payable and for non-payment of required court-fees, the plaint is liable to be rejected. In support of such plea, the petitioner cited the decisions of this Court as well as the apex Court. The plaintiff-opposite party No.1 however maintained that it was a suit for partition simplicitor and ad vo¬lerum court-fee is not payable. It was also contended that in case the Court finds that court-fee is payable, the same can be realized at a later stage or even after disposal of the suit. The learned trial Court after hearing the parties, by the impugned order rejected the petition filed by the petitioner-defendant No.1 with observation that in case more court- fee is payable, the office can quantify the same and it can be realized and that the suit cannot be thrown away at the threshold. Mr. U.K. Samal, learned counsel appearing for the petitioner submits that the impugned order is contrary to the spirit of Order 7, Rule 11(c), C.P.C. and the ratio laid down in the cases of Sadananda Sahu v. State of Orissa, AIR 1962, Orissa 102, Jhapa Meher @ Jhapa Meherani and another v. Jibhardhan @ Balmukund Meher and others, 65 (1988) C.L.T. 387, Gopal Chandra Jena v. Sri Laxmi Narayan Bijo Maura Alava and another, AIR 1990 Orissa, 98 and N.V. Srinivasa Murthy and others v. Mariyamma (dead) by pro¬posed LRs and others, (2005) 5 S.C.C. 548 . He submits that al¬though the above noted case laws were cited before the trial Court, the same were neither taken into consideration nor re¬flected in the impugned order and for these reasons, the impugned order must be set aside. Mr. Samal specifically argues that while deciding a matter of payment of court-fee and cause of action, the Court must read the plaint as a whole and find out the true spirit of the same and should not go by the prayer portion only as sometimes the plaints are cleverly drafted. Mr. S. N. Mohapatra, learned counsel appearing for the opposite party No.1, on the other hand, contends that several facts may be noted in the plaint to explain the situation, but the nature of the suit has to be decided basically on the relief sought for by the parties and since in the instant case, the plaintiff has simply asked for partition of the suit properties, ad valorem court-fee was not payable and so the learned trial Court rightly rejected the prayer of the petitioner. He further contends that payment of court-fee is a matter between the Court and the plaintiff and the defendants have no role to play in the same and in case the Court feels at any stage of the proceeding that further court-fee is payable, the same can be realized from the plaintiff even after disposal of the suit. In the case of Jhapa Meher (supra) while dealing with an issue relating to determination of payability of court-fees, this Court observed that for determination of valuation of the suit and the court-fee payable, the Court must ascertain the real relief necessary to be claimed in the suit and for that purpose, the substance of the pleadings is to be looked into and the mere form in which it is couched is not to be taken as the determina¬tive factor. The same principle was reiterated in the case of Gopal Chandra Jena (supra) with the following observation: “It is well settled that the court-fee payable on a suit is not merely dependent upon the way of drafting the plaint or the reliefs claimed but that the substance of the plaint has to be looked into to determine the real reliefs claimed in the suit.” In the case of N.V. Srinivasa Murthy (supra), the Supreme Court echoing the words used in the case of T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467 also made the following observa¬tion: “The trial Court must remember that if on a meaningful-not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7, Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the Court must nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist judge is the answer to irresponsible law suits. The trial Court would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Chapter 11) and must be trigged against them.” The above noted observation clarifies that for determining the nature of a suit and the amount of Court fee payable, the Court has to look into the substance of the pleadings and not go by the form or the prayer portion only as sometimes by clever drafting something more is asked for than what is indicated in the prayer portion. It can also be gathered from the observation of the Apex Court that bogus litigation should not be allowed to continue and must be shot down at the earliest stage. So, when the matter of cause of action or the court-fee comes up, the Court should examine the substance of the plaint and should decide the issue at the earliest opportunity. So, when the matter of cause of action or the court-fee comes up, the Court should examine the substance of the plaint and should decide the issue at the earliest opportunity. In the present case, the allegation of the petitioner-defendant No.1 is that the opposite party No.1 cleverly drafted the plaint asking for partition of the suit property only in the prayer portion but in the body of the plaint, he virtually asked to declare some of the sales made by the defendants void and not binding on him. According to the petitioner, such a plaint comes within the purview of Section 7(iv)(c) of the Court-Fees Act and for non-payment of ad valorem court-fee as per requirement of that Section, the plaint was liable to be rejected. The reply to that allegation is that only some facts situation has been narrated in the plaint about the illegal sales but no relief has been prayed for about those sales and therefore, the suit is simply a suit for partition and ad valorem court-fee was not payable as per Sec¬tion 7(iv)(c) of the Court-Fees Act. In view of the ratio N.V. Srinivasa Murthy (supra), such controversy should have been sorted out by the trial Court at the earliest. But instead of deciding that issue, it left the matter by simply saying that if the office points out that more court-fee is payable, that can be realized at any stage. Though several case laws relating to the principle of Order 7, Rule 11, C.P.C. had been cited, the same were not discussed in the order. As has been said in the cases of M/s. Birla Tyres v. Jogendra Sethi and three others, 2004 (I) OLR 40 and Delhi Transport Corporation v. Shyam Lal, AIR 2004 SC, 4269, the case laws cited by the learned counsel for the parties should be discussed and a speaking order on the issue should be passed. The foregoing discussions would show that the impugned order is not a speaking one and the issue raised has also not been finally decided. Such order is unsustainable and needs revision. The foregoing discussions would show that the impugned order is not a speaking one and the issue raised has also not been finally decided. Such order is unsustainable and needs revision. The impugned order is, therefore, set aside and the trial Court is directed to decide the issue afresh taking note of the ratio laid down in the cases of Jhapa Meher (supra), Gopal Chandra Jena (supra) and N.V. Srinivasa Murthy (supra) and specifically the ratio laid down in the case of Sadananda Sahu (supra) where an identical situation was dealt with by a Division Bench of this Court. The revision is disposed of accordingly. Revision disposed of.