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Himachal Pradesh High Court · body

2013 DIGILAW 207 (HP)

KHAWAJA KHALLILULLAH v. SHAMEM BUTT

2013-04-01

KULDIP SINGH

body2013
JUDGMENT KULDIP SINGH, J. - 1. THIS is an application for recalling order dated 4.5.2012 vide which the applicant/respondent No.1 has been proceeded exparte. The petitioner has contested the application by filing reply. It is open to the applicant to join the petition even after she has been proceeded exparte. The petition is to be decided on the basis of material on record. Hence, the application is allowed, order dated 4.5.2012 is recalled. 2. This petition under Article 227 of the Constitution of India has been filed against order dated 11.10.2011 passed by learned Civil Judge (Junior Division), Court No.7, Shimla in Civil Suit No. 10/1 of 2010/2008 dismissing the application of petitioner under Order 7 Rule 11 read with Order 14 Rule 2 (2) and Section 151 C.P.C. The facts, in brief, are that respondent No. 1 has filed a suit against the petitioner and respondent No.4. The respondents No. 2 and 3 have also been impleaded as proforma defendants. In the memo of parties of the petition, respondent No.4 has been wrongly shown as plaintiff. 3. It has been stated in the petition that the suit is for declaration that respondent No.1 is legal and rightful owner of the property, building No. 70/1, The Mall, Shimla with consequential relief that the revenue entries got affected by the petitioner and respondent No.4 qua the suit property in their favour be declared as null and void and for permanent prohibitory injunction restraining the petitioner and respondent No.4 from selling, alienating or creating any third party interest in the suit property. 4. The petitioner has contested the suit by filing written statement. The petitioner and respondent No.4 have filed an application under Order 7 Rule 11 (b) & (d) read with Section 151 and Order 14 Rule 2 (2) CPC which has been contested by respondent No.1. The application has been dismissed by learned Civil Judge on 11.10.2011, which order has been assailed by the petitioner. Heard, perused the record. The learned counsel for the petitioner has submitted that the learned Civil Judge has erred in dismissing the application, the suit is for declaration with consequential relief of permanent prohibitory injunction with respect to building No. 70/1, The Mall, Shimla. The market value of the suit property is not less than Rs.2 crore. The suit has not been properly valued for the purposes of court fee and jurisdiction. The market value of the suit property is not less than Rs.2 crore. The suit has not been properly valued for the purposes of court fee and jurisdiction. The plaint is liable to be rejected under Order 7 Rule 11 CPC. The learned Court below has erred in not rejecting the plaint. The learned counsel for respondent No.1 has supported the impugned order. 5. The respondent No.1 has filed the suit for declaration that she is legal and rightful owner of building No. 70/1, The Mall, Shimla as she is the sole legal heir of late Colonel Khawaja Muhammad Sayeed and she is entitled to have the relevant revenue entries in respect of the suit property in her favour and in her name with consequential relief that the revenue entries got effected by the petitioner and respondent No.4 qua the suit property in their favour be declared null and void. The respondent No.1 has also prayed consequential relief of permanent prohibitory injunction restraining the petitioner and respondent No.4 from selling, alienating or creating any third party interest in the suit property and/or delivering the possession thereof, in whole or part to anyone during the pendency of the suit. The prayer in the plaint is as follows: "(i) It is, therefore, prayed that a decree of declaration to the effect that the plaintiff is the sole legal owner of the suit property be passed in her favour and against the defendants 1 and 2 and (ii) The defendants No.1 and 2 by the issuance of a decree of permanent prohibitory injunction be restrained from selling, alienating or creating any third party interest in the suit property and/or delivering the possession thereof in whole or part to anyone during the pendency of the present suit, either by themselves or through their successors, agents, representative, attorneys, assignees, transferees, employees and/or any other person purporting to act on their behalf. (iii) The suit of the plaintiff be decreed with costs in the interest of justice in view of submissions made above." 6. The respondent No.1 moved an application for amendment of the plaint which was allowed on 11.8.2010. The written statement to the amended plaint was filed on 29.10.2010 and on that date, an application under Order 7 Rule 11 CPC was also filed. The respondent No.1 moved an application for amendment of the plaint which was allowed on 11.8.2010. The written statement to the amended plaint was filed on 29.10.2010 and on that date, an application under Order 7 Rule 11 CPC was also filed. In the plaint, the value of the suit for the purposes of court fee for the relief of declaration has been assessed at Rs.130/- and for the relief of injunction has been assessed at Rs.130/- and court fee of Rs.122/- has been affixed on the plaint. In the written statement filed by petitioner and respondent No.4, several preliminary objections have been taken including that the Court has no jurisdiction to try or determine the suit as the value of the property is more than Rs.2 crore. The suit is outside the pecuniary jurisdiction of the Court. The suit as laid is neither competent nor maintainable. The suit has not been properly valued for the purposes of court fee and jurisdiction. The respondent No.1 is liable to pay court fee on the market value of the property under Himachal Pradesh Court Fees Act, 1968 (for short 'Act') and also under the Suits Valuation Act, 1887. On merits, the petitioner and respondent No.4 have denied the claim of respondent No.1 and again took the objection that the suit is not properly valued for the purposes of court fee and jurisdiction. The respondent No.1 has not filed replication. The respondents No. 2, 3 have not filed written statements. In the application under Order 7 Rule 11 (b), (d) and Section 151 CPC, alternatively under Order 14 Rule 2(2) CPC, it has been stated that the property against which the declaration of title is sought is a five storied building situated on Mall Road, the market value of which would not be less than Rs.2 crore, the respondent No.1 is required to value the suit under Section 7 (iv) (c) of the Act, the Court has no pecuniary jurisdiction as the jurisdiction of the Court is limited only upto Rs.5 lacs. The respondent has not valued the suit for the purpose of jurisdiction, the plaint is liable to be rejected under Order 7 Rule 11 CPC. In the application alternative prayer has also been made for framing an issue on the point of jurisdiction and valuation and such issue may be tried as preliminary issue. 7. The respondent has not valued the suit for the purpose of jurisdiction, the plaint is liable to be rejected under Order 7 Rule 11 CPC. In the application alternative prayer has also been made for framing an issue on the point of jurisdiction and valuation and such issue may be tried as preliminary issue. 7. The respondent No.1 has contested this application by filing reply. It has been stated that the claim of respondent No.1 is with respect to her pre-existing right of ownership in the suit property. The plaint has been correctly valued for the purpose of court fee and jurisdiction. On the basis of the averments made in the plaint, the court has jurisdiction to try and decide the suit. The application has been filed to delay the proceedings and is malafide. It has been denied that the suit has not been properly valued for the purposes of court fee and jurisdiction. 8. On 2.5.2012 the trial Court while framing the issues has passed the following order: "Parties are not present hence the admission denial of documents could not be recorded. Pleadings are complete. From the pleadings of the parties, following issues are being framed as under: 1. Whether the plaintiff is entitled for a decree that she is the sole legal heir of deceased and thus entitled to inherit the suit property? ...OPP 2. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction as prayed for?...OPP 3. Whether the suit is misconceived, mischievous and malafide and liable to be dismissed on this ground as alleged? ..OPP 4. Whether the suit filed in collusion with Sh. Gautam Jain as alleged?...OPD 5. Whether the plaintiff is having no locus-standi to file the present suit as alleged?...OPD 6. Whether the suit of the plaintiff is barred by limitation as alleged? ...OPD 7. Whether the suit of the plaintiff is not competent or maintainable as alleged?..OPD 8. Whether the P.O.A. executed in favour of Gautam Jain is valid P.O.A. as alleged? ...OPD 9. Whether the suit of the plaintiff is liable to be dismissed on the ground of suppression of true and material facts as alleged? ..OPD. 10. Relief. Issues read over and explained to both the parties. Ld. Counsel for the respondent has prayed that issue of pecuniary jurisdiction be framed. Heard, record perused. ...OPD 9. Whether the suit of the plaintiff is liable to be dismissed on the ground of suppression of true and material facts as alleged? ..OPD. 10. Relief. Issues read over and explained to both the parties. Ld. Counsel for the respondent has prayed that issue of pecuniary jurisdiction be framed. Heard, record perused. From the perusal of record it appears that on this issue the application under Order 7 Rule 11 C.P.C. was filed which was dismissed vide order of this court vide order dated 11.10.2009. As such issue of jurisdiction is not required to be framed. No other issues arisen, pressed or claimed by both the parties. Onus also not disputed. Now to come up for P.Ws on taking steps within 7 days for 17/07/2012." The parties as yet have led no evidence. The Section 7 (iv) (c), (f) and (v) (e) of the Act is as follows: "7. No other issues arisen, pressed or claimed by both the parties. Onus also not disputed. Now to come up for P.Ws on taking steps within 7 days for 17/07/2012." The parties as yet have led no evidence. The Section 7 (iv) (c), (f) and (v) (e) of the Act is as follows: "7. Computation of fees payable in certain suits- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (i) to (iii) xx xx xx (iv) in suits- (a) and (b) xx xx xx (c) for a declaratory decree and consequential relief; to obtain a declaratory decree or order, where consequential relief is prayed; (d) and (e) xx xx xx (f) for accounts; for accounts, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which he values the relief sought; Provided that the minimum court-fee in each case shall be thirteen rupees: Provided further that in suit coming under sub clause (c), in case where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by paragraph (v) of this section; (v) for possession of land, houses and gardens; In suits for the possession of land houses and gardens- according to the value of the subject matter and such value shall be deemed to be- where the subject matter is land, and- (a) Where the land forms an entire estate, or a definite share of an estate paying annual revenue to Government; or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled-ten times the revenue so payable; (b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently- ten times the revenue so payable; (c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue; and net profits have arisen from the land during the year next before the date of presenting the plaint fifteen times such net profits, but where no such net profits have arisen therefrom- the amount at which the court shall estimate the land with reference to the value of similar land in the neighbourhood; (d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned- the market- value of the land; Explanation The world "estate", as used, in this paragraph means any land subject to the payment of revenue, for which the proprietor or a farmer or ryot shall have executed as separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue; (e) for houses and gardens; where the subject matter is house or garden-according to the market-value of the house or garden;". 9. The learned counsel for the petitioner has relied Bhagwat Parshad vs. Mukat Lal and others 1985 Sim.L.C. 175, wherein substance of the prayer was that the plaintiff besides seeking the relief of declaration and injunction has prayed further relief that the sale made in favour of transferee-defendants be declared as null and void. It has been held that once it is found that the suit is for declaration with consequential relief, the court fee has to be paid as prescribed under Section 7 (iv) (c) read with proviso at the end of paragraph (v) of Section 7 of the Act. The plaintiff has to pay the court fee on the basis of market value of the property in dispute which was a house. 10. The learned counsel for the petitioner has also relied Kanwar Partap Singh vs. Minakshi Devi and others 1989 (1) Sim. L.C. 107, wherein the suit was for declaration with consequential relief of injunction etc. It has been held that second proviso to Section 7 (iv) provides that in a suit for declaratory decree and consequential relief to any property, such valuation shall not be less than the value of the property calculated in the manner provided in paragraph (v) of the Section. The court fee of a suit praying for a declaratory decree with consequential relief with respect to a house has to be paid on the market value of that house. The learned counsel for the petitioner has also relied Smt. Sunita Devi vs. Smt. Sangita Kumari and others 2001 (3) Sim. L.C. 385 wherein it has been held that suits for possession of the houses and gardens shall be valued for the purposes of court fee in accordance with the market value of such houses or gardens. The learned counsel for the petitioner has also relied Geeta Devi vs. Devinder Nath Bhardwaj and others 2003 (1) Sim. L.C. 309, in that case the plaintiff had instituted the suit for partition claiming 1/6th share in the property left by his deceased father which was in possession of defendants No. 1 and 2. He wanted separate possession to the extent of 1/6th share, the suit was valued for the purpose of jurisdiction at Rs. 31 lacs, which was the value of the property in suit and for the purpose of court fee at Rs.5,20,000/-, the value of the share of the plaintiff in that property. He wanted separate possession to the extent of 1/6th share, the suit was valued for the purpose of jurisdiction at Rs. 31 lacs, which was the value of the property in suit and for the purpose of court fee at Rs.5,20,000/-, the value of the share of the plaintiff in that property. The court held, the valuation of the suit for the purpose of court fee shall be under paragraph (iv) of Section 7 of the Act, the value of suit for the purpose of the jurisdiction will also be Rs.5,20,000/- which is the value for the purpose of court fee. The valuation for the purpose of jurisdiction Rs.31 lacs is not in accordance with Section 8 of the Suits Valuation Act, 1887. 11. Harshad Chiman Lal Modi vs. DLF Universal Ltd. and another (2005) 7 SCC 791 has relied by learned counsel for the petitioner on the point so far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The Supreme Court has held that the law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity. 12. Suhrid Singh @ Sardool Singh vs. Randhir Singh and others (2010) 12 SCC 112 has also been relied by learned counsel for the petitioner. An order passed by a court having no jurisdiction is a nullity. 12. Suhrid Singh @ Sardool Singh vs. Randhir Singh and others (2010) 12 SCC 112 has also been relied by learned counsel for the petitioner. In that case the plaint contained several elaborate prayers and summarized in the report as follows:- "(i) for a declaration that two houses and certain agricultural lands purchased by his father S. Rajinder Singh were co-parcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof; (ii) for a declaration that the will dated 14.7.1985 with the codicil dated 17.8.1988 made in favour of the third respondent, and gift deed dated 10.9.2003 made in favour of fourth defendant were void and non-est "qua the coparcenary"; (iii) for a declaration that the sale deeds dated 20.4.2001, 24.4.2001 and 6.7.2001 executed by his father S. Rajinder Singh in favour of the first defendant and sale deed dated 27.9.2003 executed by the alleged power of attorney holder of S. Rajinder Singh in favour of second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the "co-parcenary", as they were not for legal necessity or for benefit of the family; and (iv) for consequential injunctions restraining defendants 1 to 4 from alienating the suit properties." The learned counsel for respondent No.1 has relied Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675 . The Supreme Court in para 38 of the report has summed up the conclusions as follows: "38. Such like matters frequently arise before the High Courts. We sup up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- (1) Amendment by Act 46 of 1999 with effect from 1.7.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case." 13. In Suhrid Singh @ Sardool Singh the suit was for declaration and for consequential relief of injunction. In Suhrid Singh @ Sardool Singh the suit was for declaration and for consequential relief of injunction. The Supreme Court has considered Section 7 (iv) (c) of the Court Fees Act, 1870 as amended in Punjab which in substance is similar to the Act. The Supreme Court has held where the relief is in regard to the houses, court fee shall be on the market value of the houses under clause (e) thereof. In the present case also, the suit is for declaration and injunction. The second proviso to Section 7 (iv) of the Act provides in suits coming under sub clause (c), in case where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (c) of the Section. The sub section (e) of Section 7 (v) provides where the subject matter is house or garden-according to the market value of the house or garden. 14. The respondent No.1 in the plaint has alleged value of the suit for the purpose of court fee for relief of declaration Rs.130/- and for the relief of injunction Rs.130/- and court fee of Rs.122/- has been affixed on the plaint. In the written statement, it has been pleaded that the court has no jurisdiction to try or determine the suit as value of the property is more than Rs.2 crore. In Kamaleshwar Kishore Singh vs. Paras Nath Singh and others AIR 2002 SC 233 , it has been held that court fee has to be paid on the plaint as framed and not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of court fee or unless there be a provision of law requiring the plaintiff to value the suit and pay the court fee in a manner other than the one adopted by the plaintiff. The court shall begin with an assumption, for the purpose of determining the court fees payable on the plaint that the averments made therein by the plaintiff are correct. The substance of the relief will be determinative of the valuation of the court fee. The defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. The substance of the relief will be determinative of the valuation of the court fee. The defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. The Supreme Court in Tara Devi vs. Sri Thakur Radha Krishna Maharaj and another (1987) 4 SCC 69 , has held in a suit for declaration with consequential relief falling under Section 7 (iv) (c) of the Act, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. It is only in cases where 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. 15. The Supreme Court in M/s Commercial Aviation and Travel Company and others vs. Vimla Pannalal (1988) 3 SCC 423 , has held Order 7 Rule 11 (b) contemplates correct valuation and not approximate correct valuation and such correct valuation of the relief has to be determined in the court. If the court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently, Order 7 Rule 11 (b) will not be applicable. The Supreme Court further held if there be materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the court, is entitled to interfere under Order 7 Rule 11 (b) of the Code of Civil Procedure, for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. 16. The learned counsel for the petitioner has submitted that in the written statement and application under Order 7 Rule 11 the petitioner has averred that market value of the suit property is over Rs.2 crore. This has not been specifically denied. Therefore, it will be deemed to have been admitted. The learned counsel has relied Gian Chand and brothers and another vs. Rattan Lal alias Rattan Singh (2013) 2 SCC 606 . This has not been specifically denied. Therefore, it will be deemed to have been admitted. The learned counsel has relied Gian Chand and brothers and another vs. Rattan Lal alias Rattan Singh (2013) 2 SCC 606 . The Supreme Court has noticed Rules 3, 4 and 5 of Order 8 and held as follows: "25. We have referred to the aforesaid Rules of pleading only to highlight that in the written statement, there was absolutely evasive denial. We are not proceeding to state whether there was admission or not, but where there is total evasive denial and an attempt has been made to make out a case in adducing the evidence that he was not aware whether the signatures were taken or not, it is not permissible. In this context, we may profitably refer to a two- Judge Bench decision in Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 wherein, while dealing with the pleadings of election case, this Court has held thus: (SCC p.693, para 73) "73. In our opinion, the approach of the High Court was not correct. It failed to apply the legal principles as contained in Order 8 Rules 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidence adduced on behalf of the appellant in this behalf in detail but merely rejected the same summarily stating that vague statements had been made by some witnesses. Once it is held that the statements made in Para 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid." We may state with profit that in the said case, reliance was placed on Badat and Co. v. East India Trading Co. AIR 1964 SC 538 . 26. Scrutinised thus, the irresistible conclusion would be that the defendants could not have been permitted to lead any evidence when nothing was stated in the pleadings. v. East India Trading Co. AIR 1964 SC 538 . 26. Scrutinised thus, the irresistible conclusion would be that the defendants could not have been permitted to lead any evidence when nothing was stated in the pleadings. The Courts below had correctly rested the burden of proof on the defendant but the High Court, in an erroneous impression, has overturned the said finding." Order 8 Rule 5 sub rule (1) provides every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. No such provision has been relied to the effect that every allegation of fact in written statement if not denied specifically or by necessary implication, or stated to be not admitted in the replication, then that shall be taken to be admitted. The learned counsel for the petitioner has submitted that in para 2 of the application under Order 7 Rule 11 of the Code, the petitioner has pleaded that market value of the suit property would not be less than Rs.2 crore. The respondent No.1 in reply to para 2 of the application has pleaded the contents of para 2 as alleged are wrong, hence denied. It has again been repeated that it is denied that suit has not been properly valued for the purpose of court fee and jurisdiction. In view of the reply to the application, it cannot be said that respondent No.1 by necessary implication has admitted that market value of the suit property is not less than Rs.2 crore. 17. IN Surya Dev Rai (supra) it has been held when a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. It is not a case where if valuation of suit as alleged by the petitioner even than court below shall have the jurisdiction to try the suit. It is not a case where if valuation of suit as alleged by the petitioner even than court below shall have the jurisdiction to try the suit. The impugned order is not sustainable. 18. The respondent No.1 in prayer (ii) of the plaint has used cleverly 'and/or'. The reading of the plaint reveals that consequential relief of injunction has been prayed in the plaint. In any case, the prayer of injunction during the pendency of the suit in the facts and circumstances of the case will also attract Section 7 (iv) (c) (v) (e) of the Act. The suit for mere declaration under Section 34 of the Specific Relief Act, 1963 is otherwise not maintainable. In view of the pleaded case of respondent No.1 and relief claimed the plaint for purpose of court fee and jurisdiction is required to be valued in accordance with Section 7 (iv) (c) (v) (e) of the Act on the market value of the suit property. The respondent No.1 has not valued the suit for the purpose of court fee in accordance with Section 7 (iv) (c) (v) (e) of the Act. The learned court below has exercised jurisdiction wrongly, illegally in dismissing the application in its entirety The fact remains that except assertions of the petitioner in the application under Order 7 Rule 11, there is no material what is the market value of the suit property. In M/s Commercial Aviation and Travel Company (supra) the Supreme Court has held that if the court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and consequently, Order 7 Rule 11 (b) will not be applicable. On the basis of material on record, the Court is not in a position to determine the correct valuation of the suit property and, therefore, the plaint cannot be rejected under Order 7 Rule 11 of the Code for want of correct valuation for the purpose of Court fee. The petitioner in the application has also made alternative prayer for framing issue on the point of jurisdiction and valuation and trial of such issue as preliminary issue. The trial Court on 2.5.2012 has framed the issues and did not frame the issue of jurisdiction in view of order dated 11.10.2009 on the application under Order 7 Rule 11 CPC. The petitioner in the application has also made alternative prayer for framing issue on the point of jurisdiction and valuation and trial of such issue as preliminary issue. The trial Court on 2.5.2012 has framed the issues and did not frame the issue of jurisdiction in view of order dated 11.10.2009 on the application under Order 7 Rule 11 CPC. It appears the order dated 2.5.2012 has not been assailed by the petitioner. 19. In CMPMO No. 350 of 2012 titled Rachna Sharma vs. Meena Kumari Sharma decided on 4.1.2013 the question of rejection of plaint under Order 7 Rule 11 read with Section 151 CPC was considered. In that case also, the suit for purpose of court fee and jurisdiction was assessed at Rs. 195/- for the purpose of declaration, the court fee of Rs.100/- was affixed and for the relief of permanent prohibitory injunction, the valuation assessed was at Rs. 130/- and the court fee of Rs.23/- was affixed. The plea was taken that plaint was required to be properly valued and stamped on ad volarum basis on the market value of the suit property which includes one built up property and built up structure. The 1/3rd share of Rajinder Prakash Sharma in the suit property comes to a minimum value of Rs. 2,75,92,810.23 approximately. This court in para 25 of the judgment has held as follows: "At this stage, except assertions of petitioner in the application, under Order 7 Rule 11 read with section 151 CPC and section 7 of the Act, there is no material to ascertain the market value of the built up structures pleaded in the plaint. In Kamaleshwar Kishore Singh (supra), it has been held that defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. In M/s Commercial Aviation and Travel Company (supra), the Supreme Court has held that if the court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and consequently, order 7 Rule 11 (b) will not be applicable. In M/s Commercial Aviation and Travel Company (supra), the Supreme Court has held that if the court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and consequently, order 7 Rule 11 (b) will not be applicable. In these circumstances, the court is not in a position to determine the correct valuation of the built up structure referred in the plaint, and, therefore, plaint cannot be rejected under order 7 Rule 11 of the Code for want of correct valuation for the purpose of court fee. The trial court, therefore, while framing issues shall also frame the issue regarding the valuation of the suit property for the purpose of court fee and decide the issue in accordance with law after giving opportunity to the parties to lead evidence." 20. In view of above, the petition is partly allowed. The order dated 11.10.2011 passed by learned Civil Judge (Junior Division) Court No.7, Shimla in Civil Suit No. 10/1 of 2010/2008 is set-aside. The trial Court is directed to frame additional issue of valuation of suit for the purpose of court fee and jurisdiction and treat the said issue as preliminary issue. The parties through their counsel are directed to appear before the trial Court on 12.4.2013. The record be sent to the trial Court immediately, so as to reach before the date fixed. CMP No. 30 of 2012 is also disposed of in view of disposal of the main petition. Petition is partly allowed.