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2015 DIGILAW 292 (UTT)

SUNIL KUMAR v. SHUBHAM

2015-06-02

U.C.DHYANI

body2015
JUDGMENT : U. C. Dhyani, J. (Oral) 1. Present Civil Revision has been preferred by the revisionist, being aggrieved against the judgment and order dated 13.05.2013 passed by the Civil Judge (S.D.), Roorkee in Original Suit no.16 of 2006, titled as ‘Subham & another vs. Sunil Kumar, whereby the trial court has decided issue no.5 regarding the payment of court fees against the defendant in favour of the plaintiffs holding that the court fees paid is sufficient. It is also prayed in the present Civil Revision that a direction be issued to the plaintiffs to pay ad-valorem court fees on their share. 2. Brief facts of the case are that the defendant had filed his written statement denying the allegations made in the plaint, inter alia, on the grounds that the suit is undervalued and the court fee paid by the plaintiffs is insufficient, inasmuch as, the plaintiffs are not in possession and are liable to pay the ad-valorem court fee on their share. The pedigree mentioned in the plaint has been denied on the ground that the wife of Krishan Lal had filed a divorce suit no.7/1997 consequent to living apart for 9-10 years prior to the filing of the suit. Only the defendant is the legal heir of the deceased Krishan Lal on the basis of succession and will dated 11.08.2004 executed by Krishan Lal in his lifetime. The children shown in the plaint were begotten by Smt. Sarla Devi from her husband Ghanshyam Dass. Several issues were framed by the trial court. The trial court had fixed the valuation of the property to the tune of Rs.9 Lakhs. Defendant moved an application before the trial court with the prayer to direct the plaintiffs to pay the ad-valorem court fee of their share, being out of possession. The trial court, by the impugned order dated 13.05.2013, rejected the claim of the defendant on the grounds, inter alia, that the plaintiffs had not sought the relief of possession and would be presumed to be in possession. Further, the matter of court fees is between the plaintiffs and the Court. 3. Notices were sent to the respondents, but none has appeared on their behalf. 4. Further, the matter of court fees is between the plaintiffs and the Court. 3. Notices were sent to the respondents, but none has appeared on their behalf. 4. It is the submission of learned counsel for the revisionist that the trial court had failed to consider the cause title of the plaint wherein the address of plaintiffs is shown as of Chandni Chowk, Delhi which implies plaintiffs to be out of possession. The trial court did not appreciate the conjoint reading of the plaint and the written statement, which has affected the decision making process. It was further submitted that the trial court has not considered the mutation of name of defendant in the municipal assessment and the payment of taxes by the defendant to the local bodies. The trial court by passing the impugned order had exercised its jurisdiction illegally. The trial court had failed to appreciate the mandate of Section 7(vi-A) of the Court Fees Act, 1870 in true perspective. When plaintiffs are not in actual physical possession as co-sharers, then ad-valorem court fee is required to be paid on the share alleged. The trial court had failed to exercise the jurisdiction vested in it by law. In any case, if there was a dispute before the trial court in regard to the actual possession of the plaintiffs, then the trial court should have postponed the disposal of issue of court fees to be decided with other issues, at the final stage. The decision making process of the trial court is perverse and vitiated, according to learned counsel for the defendant-revisionist. 5. It is pertinent to reproduce para 7 of the impugned judgment hereinbelow for reference: “7. The main ground raised by the defendant in his application is that since the plaintiffs have never been and are not in possession, they should pay the court fees on value of share in property they allege to entitled for rather than on one fourth thereof. However, in this context, the law is settled that the matter relating to suit valuation and payment of court fees is primarily between the plaintiff and the Court for which plaint allegations are given paramount consideration. The contention of the defendant would have been justified had the plaintiffs in the present suit on the one hand alleged that they are in possession but on the other hand sought relief of possession also. The contention of the defendant would have been justified had the plaintiffs in the present suit on the one hand alleged that they are in possession but on the other hand sought relief of possession also. In this suit, this is not the case. In para 3 of the plaint, plaintiffs have very specifically alleged that they are in possession of the property and have sought no relief in this regard. The law in this regard is settled and very simple that plaintiff cannot be expected to pay the court fees for which he has sought no relief. Accordingly, in suit like this, where the plaintiff alleges that he is already in possession and only seeks to get his share determined and demarcated, as per the law applicable, he need to pay the fees only on one fourth of such share, plaintiff will pay the fees on full value or in other words, for the possession as and when seeks the relief of possession, if does not have the same actually.” 6. Learned counsel for the revisionist made an innocuous prayer that if the plaintiffs are found to be in possession of the suit property, then they may not be directed to pay the court fees but if during the trial of O.S. no.16/2006, they are found to be out of possession, then the court below should direct the plaintiffs to pay ad-valorem court fees as per Section 7(vi-A) of the Court Fees Act, 1870. This Court finds substance in the said argument of learned counsel for the revisionist, for the reasons indicated hereinbelow: 7. It is no doubt that the quantum of the court fee has to be determined on the allegations made in the plaint where the decision cannot be influenced on the assertion made in the written statement, as has been held by Hon’ble Supreme Court in Sathappa Chether vs. Rammanatha Chether, AIR 1958 SC 245 and by the High Court of Judicature at Allahabad in Shefali Roy vs. Hero Jaswant Dass, AIR 1992 All 254 . But the following is relevant in the context of court fees to be paid in partition suits: “For partition. But the following is relevant in the context of court fees to be paid in partition suits: “For partition. – (vi-A) In suits for partition – according to one quarter of the value of the plaintiff’s share of the property; and according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner, and his claim to be a co-parcener or co-owner on such date is denied. Explanation. – The value of the property for the purposes of this sub-section shall be market-value which in the case of immovable property shall be deemed to be all the value as computed in accordance with sub-section (v), (v-A) or (v-B), as the case may be.” 8. Thus, the proper court fee is payable on the allegation in the plaint the averments made in the defence would be irrelevant. But the court fee payable in the case of partition would be on value of the share of the property, as has been held by High Court of Judicature at Allahabad in Lalita Parwal vs. Sahu Narain Das Gujrati, 1966 ALJ 633. 9. In the instant case, the claim of the plaintiffs to be a co-owner on the disputed property on the date of presentation of the plaint is denied by the defendant and, therefore, the plaintiffs will have to pay court fee according to full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property. According to the defendant, plaintiffs are out of possession, although, according to the plaintiffs, they are in possession of the property and therefore did not seek any relief in this regard. It is, therefore, directed that if the plaintiffs are found to be out of possession of the property of which they claim to be the owners in a suit of partition, then the court shall direct them to pay court fees as per Section 7(vi-A) of the Court Fees Act, 1870 and explanation appended thereto. 10. The Civil Revision is accordingly allowed to that extent only.