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2013 DIGILAW 201 (RAJ)

Jai Narayan v. Om Prakash

2013-01-23

BELA M.TRIVEDI

body2013
JUDGMENT : With the consent of the learned counsels for the parties, the appeal is heard finally at the admission stage. 2. The appellants-plaintiffs have challenged the decree dated 22nd November, 2006 passed by the District & Sessions Judge, Jaipur District, Jaipur (herein after referred to as the 'trial Court') in the civil suit filed by the appellants against the respondents, rejecting their plaint under Order 7 Rule 11 of Civil Procedure Code. 3. The appellants-plaintiffs had filed the suit before the trial Court seeking cancellation of the sale-deed dated 21st January, 2005 executed by the defendant No.16 in favour of the defendant No.17, and for declaration, and the permanent injunction in respect of the suit property. It appears that the office of the trial court had raised certain objections with regard to the insufficient court fees having been paid and the suit have having been under valued by the plaintiffs. The trial Court considering the objections raised by the office and after hearing the learned counsel for the plaintiffs rejected the plaint of the appellants-plaintiffs under Order 7 Rule 11 of Civil Procedure Code vide impugned order dated 22.11.2006. 4. It has been submitted by the learned counsel Mr. Sudesh Bansal for the appellants that the plaint of the appellants could not have been rejected by the trial Court either under Clause (b) or (c) of Rule 11 Order 7 in as much as even if the Court had come to the conclusion that the suit was undervalued and the plaintiffs were liable to deposit the deficit court fees as per the Rajasthan Court Fees & Suits Valuation Act, 1961 (herein after referred to as the said 'Act'), the trial Court should have granted time to the plaintiffs to correct valuation of the suit and pay the requisite court fees. According to Mr. Bansal if the suit filed by the plaintiffs is treated as one for declaration and injunction, the plaintiffs had paid sufficient court fees as per Section 24 of the said Act, however, if the suit is treated as one for cancellation of the sale deed, the plaintiffs would be required to pay the court fees as per Section 38 of the said Act. He further submitted placing reliance on the decision of the Apex Court in the case of (Suhrid Singh Alias Sardool Singh v. Randhir Singh & Others (2010) 12 SCC 112 that the plaintiffs being not the executants of the sale deed, they were required to file suit only for declaration and not cancellation of the sale deed. 5. However, the learned Senior counsel Mr. RK Agarwal appearing for respondent No.17, raising a preliminary objection submitted that the appellants having not paid the proper court fees as per the order passed by the trial Court, the present appeal is not maintainable. He further submitted that from the contents and prayer clause of the plaint, it clearly transpires that the suit was filed by the plaintiffs seeking cancellation of the sale-deed executed by the defendant No.16 in favour of the defendant No.17 and therefore, the trial Court has rightly observed that the plaintiffs were liable to pay the court fees as per Section 38 of the said Act and not as per Section 24 of the said Act. Mr. Agrawal has fairly submitted that the trial Court had not granted time to the plaintiffs for the payment of requisite court fees before rejecting the plaint under Order 7 Rule 11 of Civil Procedure Code. Mr. Simlote appearing for respondent No.18 & 21 has supported the submissions made by the learned counsel Mr. Agarwal for respondent No.17. 6. So far as the preliminary objection raised by the learned counsel Mr. Agarwal for respondent No.17 is concerned, it may be stated that the trial Court in the impugned order has not passed any specific order directing the plaintiffs to pay the requisite court fees. According to the learned counsel for the appellants-plaintiffs, the plaintiffs had already paid the requisite court fees considering the nature of the suit. Be that as it may, since the impugned order passed by the trial Court under Order 7 Rule 11 is under challenge in this appeal, and since there is no specific order passed by the trial court directing the appellants plaintiffs to pay the requisite court fees, it cannot be said that the appeal is liable to be rejected on the ground of non payment of requisite court fees. 7. 7. So far as the merits of the appeal are concerned, it is pertinent to note that the court could reject the plaint under Clause (b) of Rule 11, when 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. The plaint could also be rejected under Clause (c) of the said Rule 11, when held the relief claimed is properly valued but the plaint is written upon a 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 so. Thus, in both the situations, the court is required to grant the time to the plaintiff either to correct the valuation or to pay the requisite court fees. If within the time granted by the Court, plaintiff does not comply with the order, then only the plaint could be rejected under either of the said clauses as the case may be. 8. In the instant case, admittedly, no such time either for correcting the valuation of the suit or for the payment of requisite court fees was granted by the trial court before rejecting the plaint of the appellants-plaintiffs under Order 7 Rule 11 Civil Procedure Code. Under the circumstances, the impugned order passed by the trial Court suffers from gross illegality and deserves to be set aside. It is clarified that the court does not express any opinion as to whether the plaintiffs are liable to pay the court fees as per Section 24 or as per Section 38 of the said Act. It is needless to say that the proceedings of the suit shall be proceeded further in accordance with law. 9. In view of above, the impugned order dated 22.11.2006 passed by the trial court is set aside. 10. The appeal stands allowed accordingly. Appeal allowed.