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2008 DIGILAW 997 (ORI)

ARUNA KUMAR ACHARYA v. NAGENDRA KUMARI DWIBEDY

2008-11-05

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this application under Article 227 of the Constitution of India, challenge has been made to the order dated 24.9.2008 passed by the learned Addl. Civil Judge, (Junior Division), Pallahara in Title Suit No. 1 of 2001. The Court below while considering the application filed under Order 11, Rule 17 of the CPC for discovery of documents filed in the suit to assess the valuation of the suit land and to determine the pecuniary jurisdiction of the Court, came to a conclusion that the suit has not been properly valued by the plaintiff. Accordingly, he directed the plaintiff to take back the plaint to present it before the learned Civil Judge (Senior Division) on the finding that the valuation of the entire suit land is Rs. 6 lakhs or more than Rs. 6 lakhs. 2. The brief facts leading to present this writ petition are as follows: The petitioner as plaintiff filed Title Suit No. 1 of 2001 before the Addl. Civil Judge, (Junior Division), Pallahara for declaration of right, title and interest in respect of 'B' Schedule property along with consequential relief. After receiving notice, opposite parties-defendants entered appearance and filed their written statement traversing the plaint assertions. Considering the pleadings of the parties, the trial Court framed issues and eight witnesses were examined from the side of the plaintiff and four witnesses were examined by the defendants. Both the parties also exhibited their documents. 3. While the matter stood thus, on 20th July, 2005 defendants 3 to 5 filed an application to depute a commissioner to make local inspection and ascertain the market value of the house and garden prevailing there which was rejected by the learned Addl. Civil Judge, (Junior Division) on 11th August, 2005 holding that the plaintiff filed the suit for declaration of right, title and interest in respect of 'B' Schedule property and valued the suit at Rs. 10,000/- for the purpose of Court fees and jurisdiction and paid the Court fees and at that stage it could not be said that the plaintiff had not properly valued the suit and an issue to that effect has already been framed i.e. issue No. 4 which is to be decided by the Court below along with other issues since the issue relating to valuation of the suit is a mixed question of law and fact. 4. 4. While the matter stood thus, again defendant No. 1 filed an application under Order 11, Rule 12 of the CPC for a direction to the plaintiff to answer the inventory by way of affidavit. The plaintiff filed his objection to the said application expecting that the suit is to be heard finally. However, the learned Addl. Civil Judge, (Junior Division) by order dated 24.9.2008 while considering the said application observed regarding valuation of the suit and directed the plaintiff to take back the plaint keeping in view the provision of Order 7, Rules 10 and 11 of the Civil Procedure Code. Hence this writ petition. 5. The learned Counsel appearing for the petitioner submitted that the plaintiff was entitled to put his own valuation for the purpose of jurisdiction and valuation of the suit. As such, the plaintiff had valued the suit and paid the adequate Court fees and the Court below accepted the same and by order dated 11.8.2005 the Court below held that a specific issue has been framed regarding valuation of the suit which would be considered at the stage of final hearing of the suit. Without recalling the said order, it should not have directed the plaintiff to take back the plaint and file it before the learned Civil Judge (Senior Division) on the finding that the valuation of the suit land is Rs. 6 lakhs or more than Rs. 6 lakhs. In support of his contention he cited a decision of the Supreme Court in the case of Tara Devi Vs. Sri Thakur Radha Krishna Maharaj, through Sebaits Chandeshwar Prasad and Meshwar Prasad and Another, . 6. The learned Counsel appearing for the opposite party-defendant No. 1, who is contesting the case, submitted that this Court in the case of Jagannath Motors and Anr. v. Rushikulya Gramya Bank and Ors. reported in 2007 (2) OLR 521 held that if the relief claimed is undervalued, the plaint is to be rejected. For non-disclosure of cause of action also, the plaint is liable to be rejected. Valuation of a suit and payment of Court-fee is a matter between the plaintiff and the Court and the defendant has nothing to say in that respect. If the suit is not properly valued or required Court-fee is not paid, the plaint shall not be admitted. Therefore, the defendants filed the application before the learned Addl. Valuation of a suit and payment of Court-fee is a matter between the plaintiff and the Court and the defendant has nothing to say in that respect. If the suit is not properly valued or required Court-fee is not paid, the plaint shall not be admitted. Therefore, the defendants filed the application before the learned Addl. Civil Judge, (Junior Division) who taking into consideration the case passed the impugned order which need not be interfered with. 7. It is not in dispute that the plaintiff filed the suit for declaration of right, title and interest and other consequential relief and valued the suit. According to Section 7(iv)(c) of the Court-fees Act (7 of 1870), in a suit for declaration with consequential relief, the plaintiff is free to make his own estimation of the relief sought in the plaint and such valuation both for the purposes of Court-fee and jurisdiction has to be ordinarily accepted. In case 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. The apex Court in the case of S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, and in the case of Meenakshisundaram Chettiar Vs. Venkatachalam Chettiar, held that the plaintiff has the right to value the relief claimed according to his own estimation and such valuation has to be ordinarily accepted. The plaintiff, however, has not been given the absolute right or option to place any valuation whatever on such relief, and where the plaintiff manifestly and deliberately under-estimates the relief the Court is entitled to examine the correctness of the valuation given by the plaintiff and revise the same if it is patently arbitrary or unreasonable. 8. In the present case, in the impugned order the learned Addl. Civil Judge, (Junior Division) did not come to a definite finding that the valuation made by the plaintiff is arbitrary and unreasonable or the plaintiff has under-valued the suit. Nowhere the Court Fees Act or any other law provides that the suit has to be valued as per the current valuation (market rate) of the suit property. Civil Judge, (Junior Division) did not come to a definite finding that the valuation made by the plaintiff is arbitrary and unreasonable or the plaintiff has under-valued the suit. Nowhere the Court Fees Act or any other law provides that the suit has to be valued as per the current valuation (market rate) of the suit property. Failure on the part of the trial Court to render necessary findings to support its order is a jurisdictional error liable to be corrected under Article 227 of the Constitution of India. The facts in the present case are different from that in the case of M/s. Jagannath Motors and another (supra). In that case the relief claimed by the plaintiff is not clear and it is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Judicial utterances are made in setting up of the facts of a particular case. Therefore, the said decision is not applicable to the facts of the present case. Since the plaintiff has estimated the valuation of the suit at Rs. 10,000/- and the Court has already framed an issue to that effect i.e. Issue No. 4, without setting aside the order dated 11.8.2005 wherein the learned Addl. Civil Judge has already held that the same issue is to be considered alongwith other issues, he should not have passed the impugned order dated 24.9.2008 directing the plaintiff to take back the plaint and to present it before the competent Court without recording a finding that the valuation of the suit being arbitrary or unreasonable is an error apparent on the face of the record. 9. As the Court below came to a finding of fact by asking itself a wrong question and approached the said question in an improper manner, the finding of fact cannot be said to be one rendered with jurisdiction. As such, the impugned order is liable to be corrected. 10. Therefore, this Court sets aside the order dated 24.9.2008 passed by the learned Addl. Civil Judge, (Junior Division), Pallahara in Title Suit No. 1 of 2001 in exercise of the jurisdiction under Article 227 of the Constitution of India and keeping in view the aforesaid decisions of the apex Court. With the aforesaid observation, the writ petition is disposed of. No costs.