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2015 DIGILAW 23 (CHH)

Santosh Kumar Pandey v. Shivkali

2015-01-20

SANJAY K.AGRAWAL

body2015
ORDER : Sanjay K. Agrawal, J. 1. Petitioner herein is defendant before the trial court. The trial court by order dated 08.04.2013 held that suit valued for the purpose of declaration of title and permanent injunction on the basis of sale deed is not proper and directed the suit be valued in accordance with market value of the suit property and to pay the advalorem court fee. In compliance of above-stated order, the respondents/plaintiffs valued the suit for the purpose of declaration and permanent injunction at Rs. 4,69,737/- and made application for correcting the valuation in the plaint and also prayed for amendment in the plaint. 2. The trial court, after hearing the objection of other side, by order impugned dated 30.07.2014 (Annexure P/19) allowed the application permitting the respondent plaintiff to amend the plaint correcting the valuation and considering the objection of petitioner framed additional issue with regard to valuation of the suit and rejected the objection of petitioners/defendants for appointment of Commissioner for valuation of suit property. 3. The petitioner/defendant has filed this writ petition questioning that order stating inter alia that valuation of suit property is not properly made and valuation of suit ought to have been made to Rs. 9,97,401/- by the respondents/plaintiffs and commissioner ought to have been appointed by the trial court for the purpose of valuation of suit property and as such the order of the trial court deserves to be set-aside. 4. Mr. Santosh Kumar Pandey petitioner appearing in person would submit, that trial court has committed jurisdictional error in not accepting the valuation put forth by him and as such the suit is not properly valued and therefore plaintiff be directed to value the suit properly by setting aside the impugned order. 5. Despite service of notice, none appeared on behalf of plaintiffs/defendant No. 1 to 6. 6. I have heard Shri Santosh Kumar Pandey, petitioner-in-person and perused the documents with utmost circumspection. 7. Upon perusal of records it appears, that this court on 02.01.2012 in WP(227) No. 7839 of 2011, has directed the trial court to consider whether suit is properly valued on the date of filing of suit or not, pursuant to which, the trial court has directed for making proper valuation of suit as per market value of the suit property and upon which, the respondents/plaintiffs has valued the suit to Rs. 6,69,637/- in place of original valuation Rs. 3,13,900/-. The trial court by its impugned order allowed the respondents/plaintiffs to correct the valuation in the plaint and allowed to pay additional court fee. Nothing has been brought on record to demonstrate that order dated 08.04.2013 passed by the trial court directing the plaintiffs to value the suit in accordance with market value is challenged and set-aside, and as such, that order has become final and in addition to that, the trial court in all fairness has also framed additional issue with regard to valuation of the suit to be tried along with all other issue. 8. In a decision reported in Sri Rathnavarmaraja Vs. Smt. Vimla, AIR 1961 SC 1299 their Lordships of Supreme Court has clearly held that question whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State, and the defendant has no right to question the payment of court fee, and held as under: "The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under s. 115 of the Code of Civil Procedure is strictly conditioned by cls. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under s. 115 of the Code of Civil Procedure is strictly conditioned by cls. (a) to (c) thereof and, may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior court by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. ..." 9. Further, the Supreme Court in case of Abdul Hamid Shamai Vs. Abdul Majid and Others, AIR 1988 SC 1150 (1), has held that tentative valuation given by the plaintiff should not be arbitrary and unreasonable. 10. Likewise, in a decision reported in Sujir Keshav Nayak Vs. Sujir Ganesh Nayak, (1992) 1 SCC 731 their Lordships of the Supreme Court has held as under:-- "3......... (1) Where the question of court fee is linked with jurisdiction a defendant has a right to raise objection and the court should decide it as a preliminary issue. (2) But in those cases where the suit is filed in court of unlimited jurisdiction the valuation disclosed by the plaintiff or payment of amount of court fee on relief claimed in plaint or memorandum of appeal should be taken as correct. (3) This does not preclude the court even in suits filed in courts of unlimited jurisdiction from examining if the valuation, on averments in plaint, is arbitrary." 11. In a decision reported in Kamaleshwar Kishore Singh Vs. (3) This does not preclude the court even in suits filed in courts of unlimited jurisdiction from examining if the valuation, on averments in plaint, is arbitrary." 11. In a decision reported in Kamaleshwar Kishore Singh Vs. Paras Nath Singh & Others, 2002 (1) SCC 304 their Lordships of Supreme Court has clearly held that court has to accept the averment made by the plaintiff for the purpose of determining the court fee, and held as under: "It is well settled that the 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 plaint, that the averments made therein by the plaintiff are correct. Yet, an arbitrary valuation of the suit property having no basis at all for such valuation and made so as to evade payment of court fees and fixed for the purpose of conferring jurisdiction on some court which it does not have, or depriving the court of jurisdiction which it would otherwise have, can also be interfered with by the court. It is the substance of the relief sought for and not the form which will be determinative of the valuation and payment of 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. If the plaintiff is ultimately found to have omitted to seek an essential relief which he ought to have prayed for and without which the relief sought for in the plaint as framed and filed cannot be allowed to him, the plaintiff shall have to suffer the dismissal of the suit. These principles of law were over-looked by the trial court in passing the impugned order which was put in issue before the High Court. These principles of law were over-looked by the trial court in passing the impugned order which was put in issue before the High Court. We are further of the opinion that though the revision preferred by the plaintiff was directed against the order dated 1.3.97, the real question arising before the High Court was to find out whether the suit was properly valued and proper court fee was paid thereon in accordance with law. While doing so if the High Court was required to examine the correctness or otherwise of the order dated 17.12.96 it should not have felt inhibited from doing so. In the facts of the present case we are clearly of the opinion that the High Court was not justified in dismissing the revision on the ground that the order dated 1.3.97 was an order correcting a clerical or typing error only." 12. Very recently in case of Sardar Tajender Singh Ghambhir Vs. Sardar Gurpreet Singh, 2014 (11) Scale 110 the Supreme Court has held, with reference to adequacy of court-fee, the High Court should not interfere with order which effectively advanced the cause of justice, and held as under: "The order of the first appellate court being eminently just and proper, in our view, there was no justification of the High Court to invoke its power Under Article 227 of the Constitution of India and interfere with an order which effectively advanced the cause of justice." 13. Thus, keeping in view the principles laid down in aforesaid cases by their Lordships of the Supreme Court and further taking into consideration that defendant/petitioner has failed to question order of trial court directing plaintiffs to make valuation of the suit property as per market value, the trial court was absolutely justified in granting amendment permitting the valuation to be corrected and in rejecting the application for appointment of Commissioner to make valuation as trial court has framed an additional issue with regard to the valuation of the suit as such, I do not find any illegality, jurisdictional error or perversity warranting interference of this court in supervisory jurisdiction under Article 227 of the Constitution of India. As a fall out and the consequence of the aforesaid discussion, the petition is held to be devoid of merit and is, therefore, dismissed.