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2016 DIGILAW 205 (RAJ)

Yonus Bhati v. Shahariyar

2016-02-03

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. These writ petitions have been filed by the petitioner aggrieved against the order dated 7.11.2016 passed by the learned court below, whereby on applications filed by the respondent-Shahariyar under Order 7, Rule 11 CPC in the two suits, the Court has directed the petitioner to value the suits in terms of the provisions of the Rajasthan Court Fees and Suits Valuation Act, 1961 ('the Act') and pay the court fees accordingly and another application filed by the petitioner seeking consolidation of two suits has been dismissed. 2. The petitioners filed suit No.71/11 seeking permanent and mandatory injunction against Shahariyar, Jime and Municipal Board, Mount Abu. The suit was filed based on the facts that pursuant to the agreement to sale dated 30.3.1998 executed by Shri Praveen Chand Ranchhod Lal Joshi for a sum of Rs. 42 lacs, the petitioners were in possession of the suit property and under the provisions of Order 2, Rule 2 CPC reserved his right to file a suit for specific performance. However, it was claimed that the respondents were seeking to dispossess the petitioners and therefore, prayed that injunction be granted. 3. Another suit being 46/2012 was filed by the petitioner against Shahariyar and Jime for declaration, wherein it was inter-alia claimed that besides the petitioner being in possession of the property pursuant to the agreement to sale executed in petitioner's favour, he has become owner by adverse possession and sought declaration in this regard. 4. The defendants filed written statement in both the suits and disputed the contentions made by the petitioners. 5. During the pendency of the suits, present applications under Order 7, Rule 11 CPC were filed by the defendants, inter-alia, questioning the valuation put by the petitioners and further raising certain issues regarding maintainability of both the suits. The petitioners where after filed an application seeking consolidation of both the suits on the ground that except the Municipal Board, Mount Abu, all the parties were same and the subject matter of the suit was also same and therefore, both the suits be consolidated. 6. While the petitioners contested the applications filed by the defendants, the defendants opposed the application filed by the petitioners. 7. 6. While the petitioners contested the applications filed by the defendants, the defendants opposed the application filed by the petitioners. 7. The trial court by its impugned order decided all the three applications together, came to the conclusion that as the pleas raised in the two suits were mutually destructive, the suits cannot be consolidated and rejected the application. Regarding the valuation of the suits, the trial court observed that while the suit for injunction has been valued at Rs. 60,000/-, the suit for declaration has been valued at Rs. 50 lacs and in one of the suits which was filed for possession by the defendants being 86/2012 qua the same property, the same has been valued at Rs. 5,60,47,410/- and accordingly, the court fees has been paid and based on the said facts, the Court came to the conclusion that the valuation put-forth by the petitioner was arbitrary and consequently, passed the direction as noticed hereinbefore. Besides the said direction, the trial court observed that the other objections raised in the applications under Order 7, Rule 11 CPC could not be decided at the stage of application. 8. It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application filed for consolidation, inasmuch as, both the suits pertained to same property and was between the same set of parties and therefore, the order impugned cannot be sustained. 9. It was further submitted that the trial court committed error in directing the petitioner to value the suits all over again and to pay the court fees accordingly, inasmuch as, valuation of suit is a mixed question of law and fact and could not have been decided at the stage of deciding application under Order 7, Rule 11 CPC. 10. Reliance was placed on Seeta Ram & Anr. v. Gulab Chand : 2014 (1) DNJ (Raj.) 53 and Sun Petpack JBP Pvt. Ltd. (M/s.) Thr. Director Shri Ravi Gupta v. Shree Pet Thr. Authorised Signatory Shri Krishna Gopal Nawal : 2015 (2) DNJ (Raj.) 498. 11. I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record. 12. v. Gulab Chand : 2014 (1) DNJ (Raj.) 53 and Sun Petpack JBP Pvt. Ltd. (M/s.) Thr. Director Shri Ravi Gupta v. Shree Pet Thr. Authorised Signatory Shri Krishna Gopal Nawal : 2015 (2) DNJ (Raj.) 498. 11. I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record. 12. So far as the order passed by the trial court pertaining to consolidation of the suits is concerned, the suit for injunction is essentially and solely based on the agreement to sale in favour of the petitioners, which necessarily means that the petitioners have not claimed themselves as the owner of the property, while the suit for declaration is based on besides the agreement to sale also on the claim based on adverse possession i.e. a claim of title based on such adverse possession. The very fact that the two diagonally opposite pleas have been raised in two suits, the consolidation of the suits despite the fact that the parties are similar and the property involved is the same, cannot be ordered as the said pleas are not only diagonally opposite, they are mutually destructive as the one cannot stand in the presence of the other and in case of consolidation, the same would embarrass the trial and would lead to undesirable consequence and therefore, the trial court was justified in rejecting the application seeking consolidation. 13. So far as the plea regarding the direction pertaining to valuation of the suits and the consequential payment of court fees is concerned, the judgments cited by the learned counsel for the petitioner pertain to issue as to the market value of suit property, which essentially is not the case in hand, inasmuch as, the trial court based on the fact that the suits have been valued arbitrarily by the petitioners has come to the conclusion that the same have to be valued properly/court fees be paid, in case of suit for injunction under Section 26(a) of the Act and in case of suit for declaration under Section 24(b) of the Act, wherein the suits are required to be valued based on the market value of the property. 14. 14. The said finding of the trial court regarding the arbitrary nature of valuation, which has been put by the petitioner appears to be justified in the circumstances of the case, inasmuch as, while the basis of the suit for injunction is an agreement to sale having consideration of Rs. 42 lacs, the suit has been valued at Rs. 60,000/- only, which valuation cannot be supported by any reasoning. 15. Similarly, the suit for declaration filed in 2012 has been valued at Rs. 50 lacs. for the property for which agreement to sale was entered into in the year 1998 for a consideration of Rs. 42 lacs. 16. So far as the plea as to at what stage, the aspect of the court fees is to be determined. The provision of Section 11(2) of the Act clearly provides that all questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order 18 CPC and therefore, it cannot be said that the decision by the trial court at the present stage regarding valuation of the suit and sufficiency of court fees was not justified. 17. Learned counsel for the petitioner submitted that the trial court has granted insufficient time to the petitioner for payment of court fees and has directed that in case, the same is not paid within a period of 30 days, the suit shall stand dismissed in terms of Order 7, Rule 11 (c) CPC. 18. In view of the above discussion, there is no substance in the writ petitions, the same are, therefore, dismissed. 19. However, looking to the amount of valuation/court fees required to be paid by the petitioners, the petitioners are granted time till 31.3.2016 to value the suit properly and pay the court fees accordingly.