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2016 DIGILAW 871 (ALL)

KRISHAN CHAND TIWARI v. SATISH CHAND TIWARI

2016-03-09

RAM SURAT RAM (MAURYA), SUDHIR AGARWAL

body2016
JUDGMENT By the Court.—Heard Sri Vikram D. Chauhan, learned counsel for appellant and Sri M.D. Singh Shekhar, learned Senior Counsel for respondents. 2. This appeal under Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has arisen from judgment and decree dated 25th October, 2007 passed in Original Suit No. 721/05 (Shri Krishna Chand Tiwari and others v. Shri Satish Chand Tiwari) by Civil Judge (Senior Division), Agra rejecting plaint of aforesaid suit under Order VII Rule 11(b) CPC for non compliance of the order with respect to amount of valuation and payment of requisite Court fee. 3. Appellant Krishna Chand Tiwari (now deceased and substituted by legal heirs) and respondent-2, Satish Chand Tiwari (now deceased and substituted by legal heirs) instituted Original Suit No. 721 of 2005 in the Court of Civil Judge (Senior Division), Agra praying for a declaratory decree that the ‘Will’ dated 27.3.1985, allegedly executed in favour of defendant Satish Chand Tiwari by Late Jagannath Tiwari, is void, invalid and a manufactured document. He also sought a permanent prohibitory injunction restraining defendant from selling disputed property to any other person during pendency of suit. 4. Defendant contested suit by filing written statement, and besides other grounds, has averred in paragraph-25 of written statement that plaintiff has not properly valued suit and adequate Court fees has not been paid, hence plaint is liable to be rejected under Order VII, Rule 11, CPC. 5. Trial Court formulated following seven issues. ^^1- D;k olh;r fnukad 27-3-1985 okn i= esa fn;s x;s vk/kkjksa ij voS/k o 'kwU; ?kksf’kr fd;s tkus ;ksX; gS] ;fn gka rks izHkko A Whether Will dated 27.3.1985 is liable to declared null and void on the basis of the grounds given in the plaint? If so, its effect? 2- D;k okn vkns'k &7 fu;e &11 lh-ih-lh- ds fu;e ls okf/kr gSA Whether the suit is barred by Order 7 Rule 11 of CPC? 3- D;k okn esa vkns'k &7 fu;e&3 lh-ih-lh- ds izkfo/kku ykew gksrs gSA Whether the provisions of Order 7 Rule 3 of the CPC are applicable to the suit? 4- D;k okn /kkjk&34]38]41 fofufnZ"V vuqrks"k vf/kfu;e ds izko/kkuksa ls okf/kr gSA Whether the suit is barred by the provisions of Sections 34, 38 and 41 of the Specific Relief Act? 3- D;k okn esa vkns'k &7 fu;e&3 lh-ih-lh- ds izkfo/kku ykew gksrs gSA Whether the provisions of Order 7 Rule 3 of the CPC are applicable to the suit? 4- D;k okn /kkjk&34]38]41 fofufnZ"V vuqrks"k vf/kfu;e ds izko/kkuksa ls okf/kr gSA Whether the suit is barred by the provisions of Sections 34, 38 and 41 of the Specific Relief Act? 5- D;k okn vYi ewY;kfdar gS rFkk vnk U;k; 'kqYd vi;kZIr gS A Whether the suit is undervalued and the Court fee paid is insufficient? 6- D;k okn le;kof/k ls ckf/kr gS A Whether the suit is time barred? 7- oknh fdl vuqrks"k dks ikus dk vfèkdkjh gSaA^^ What relief the plaintiff is entitled to get?” (English Translation by Court) 6. Issue 5 was taken as a preliminary issue and decided vide judgment and order dated 19.7.2007. Civil Judge (Senior Division), Agra found that valuation of disputed property was Rs. 40,00000/- and adequate Court fees was not paid on the said valuation. He, therefore, directed plaintiffs to pay requisite Court fees and take necessary steps/pairvi within ten days. The relevant extract of order dated 19.7.2007 reads as under: ^^vr% Li"V gS fd oknh ds }kjk okn dk ewY;kadu de fd;k x;k gS vkSj U;k; 'kqYd vi;kZIr vnk fd;k x;k gSA izfroknh bl okn fcUnq dks fl) djus esa lQy jgk gS rnuqlkj ;g okn fcUnq oknh ds fo:) rFkk izfroknh ds i{k esa fu.khZr fd;k tkrk gS A oknh dks vknsf'kr fd;k tkrk gS fd oks fookfnr lEifRr dk ewY;kadu 40]00]000@& :i;s dk;e djsa vkSj ml ij fu;ekuqlkj U;k; 'kqYd vnk djsaAbl ckor oknh vko’;d iSjoh 10 fnu esa djsaA^^ “Hence, it is clear that the suit has been undervalued and insufficient Court fee has been paid by the plaintiff. The defendant has been successful in proving this issue; accordingly, the issue is decided against the plaintiff and in favour of the defendant. The plaintiff is ordered to determine the value of the disputed property to be Rs. 40,00,000/- and to pay the Court fee as per rules. The plaintiff shall take necessary steps in this respect within ten days.” (English Translation by Court) 7. Plaintiff failed to take steps within ten days as directed by Court. The plaintiff is ordered to determine the value of the disputed property to be Rs. 40,00,000/- and to pay the Court fee as per rules. The plaintiff shall take necessary steps in this respect within ten days.” (English Translation by Court) 7. Plaintiff failed to take steps within ten days as directed by Court. On the contrary it appears that he filed an application (paper No. 56 ka) under Order 6 Rule 17 C.P.C. This application was served upon defendant’s counsel on 24th August, 2007 and filed in Court on 25th August, 2007. Plaintiff sought substitution of existing para-3 and insertion of paragraph 3A, substitution of paragraphs 7, 9 and prayer ‘A’ and insertion of prayer ‘AA’. Besides, it also sought to substitute paragraph 11 of plaint by another paragraph, which reads as under: “With the valuation of suit property at Rs. 40,00000/- Court fee according to law is paid on it.” 8. Plaintiff also prayed for impleadment of four persons, whose names were in the said application, as defendants-2 to 5 9. Trial Court considered the aforesaid application as also consequences of non compliance of order dated 19.7.2007 and found that despite time having been granted to plaintiffs they had not complied the same by paying requisite Court fees and with that view of the matter, plaint had to be rejected under Order VII, Rule 11 C.P.C. 10. Sri Vikram D. Chauhan, learned counsel for appellant contended that requisite Court fees could not have been paid without seeking amendment in the plaint and for this purpose amendment of plaint was requested by plaintiff-appellant vide application (paper No. 56-Ka) and hence it cannot be said that there was non compliance. 11. He also drew our attention to two applications moved by plaintiffs i.e. 30.7.2007 (paper 53 C) and dated 14.8.2007 (paper No. 55 Ga) and contended that these applications should have been read as seeking extension of time by Trial Court which was permissible under proviso to Order VII, Rule 11. Hence, rejection of plaint under Order VII, Rule 11 C.P.C. is illegal and there has occurred patent illegality. 12. Hence, rejection of plaint under Order VII, Rule 11 C.P.C. is illegal and there has occurred patent illegality. 12. He also submitted that applications seeking time were not rejected but Court below passed order adjourning proceeding and, therefore, plaint could not have been rejected under Order VII, Rule 11 C.P.C. He drew our attention to order sheet of Court below, dated 30.7.2007 and 14.8.2007, wherein following orders were passed : ^^30-7-07 vkt oknh dh vksj ls 53 x izk- i- iSjoh nkf[ky djus gsrq fu;r frfFk rd le; fn;s tkus gsrq nkf[ky gqvk isl gksdj vkns'k gqvk A Lohd`r A^^ “30.7.2007 Today, an application being paper No. 53C has been filed on behalf of the plaintiff seeking time to be granted, till the next date, for putting forth pleadings; whereupon it was ordered - Allowed.” ^^14-8-07 vkt i=koyh is'k gqbZ oknh dh vksj ls iqdkj ij 54 ?k izk- i= eqYroh rkjh[k nh x;h dksbZ ,rjkt ugha gS vr% vkns'k gqvk fd i=koyh okLrs vfxze vkns’k fnukad 5-9-07 dks is'k gksA^^ “14.8.2007 File presented today. On being so sought on behalf of the plaintiff through an application being paper No. 54D, the case stands adjourned on which none raises any objection. Hence; let it be ordered that the file be put up on 5.9.2007 for further orders.” (English Translation by Court) 13. We also find from record that on 22.8.2007, defendant filed an application under Order VII, Rule 11 C.P.C. stating that order dated 19.7.2007 has not been complied, therefore, plaint should be rejected whereas on 14.8.2007 plaintiff had already sought time for filing amendment application. 14. In our view real issue for consideration in this appeal would be: “Whether plaintiffs failed to pay requisite Court fees within time fixed by Court below or there was any extension of time as per proviso to Order VII, Rule 11, CPC?” 15. 14. In our view real issue for consideration in this appeal would be: “Whether plaintiffs failed to pay requisite Court fees within time fixed by Court below or there was any extension of time as per proviso to Order VII, Rule 11, CPC?” 15. Order VII, Rule 11, CPC reads as under : “R.11 Rejection of plaint.—The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action: (b) Where 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: (c) Where the relief claimed is properly valued, but the plaint is written upon 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: (d) Where the suit appears from the statement in the plaint to be barred by any law: (e) where it is not filed in duplication: (f) where the plaintiff fails to comply with the provisions of rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” (Emphasis supplied by Court) 16. Rule 11(b) provides a ground for rejection of plaint i.e. if suit instituted by plaintiff is without payment of adequate Court fees and despite time granted, requisite Court fees is not paid or where the suit is under valued and despite time granted valuation is not corrected, plaint shall be rejected. 17. The provision under Order VII, Rule 11, CPC of under Rule 11 is mandatory and does not admit any leniency. However, proviso to Rule 11, CPC permits an exception showing that time granted by Court can be extended but. extension is not a normal rule. In a restricted manner such time can be extended. 17. The provision under Order VII, Rule 11, CPC of under Rule 11 is mandatory and does not admit any leniency. However, proviso to Rule 11, CPC permits an exception showing that time granted by Court can be extended but. extension is not a normal rule. In a restricted manner such time can be extended. Proviso shows that time fixed by Court for correction of valuation and supplying stamp papers shall not be extended unless Court records its reasons about its satisfaction that plaintiff was prevented by any cause of an exceptional nature from correcting valuation or supplying requisite stamp papers within time fixed by Court. It further requires that Court shall also record its reason that refusal to extend time would cause grave injustice to plaintiff. Thus, order of extension of time is not to be presumed but it has to be specifically passed after satisfying the requirement of proviso to Rule 11, CPC otherwise in law there is no extension of time and if within time prescribed, plaintiff has not done what has been directed regarding correction of valuation or supplying requisite stamp papers, plaint shall be rejected. 18. In the present case vide order dated 19.7.2007, Court found two faults in plaint - first it was undervalued and second requisite stamp papers were not supplied. For both these purposes, Court required plaintiff to do necessary pairvi within ten days. The order having been passed on 19.7.2007 it should have been complied with by 29.7.2007 but record shows that first application was submitted by petitioner on 30.7.2007 registered as paper No. 53 C wherein he sought time for pairvi. The contents of application are as under: ^^lsok esa fuosnu gS fd mDr okn esa vkt dh rkjh[k okLrs iSjoh fu;r gS ysfdu oknh ds vf/koDrk vius futh dk;ksZ esa O;Lr jgus dh otg ls iSjoh gsrq izkFkZuk i= vkt rS;kj ugh djk ldsaA vr% iSjoh dj ikuk laHko ugha gSA vr% izkFkZuk gS fd iSjoh nkf[kr djus gsrq fu;r frfFk rd dk le; nsus dh d`ik djsaA ^^ “It is submitted that the said case is fixed for today for pleadings but the counsel for the plaintiff, on account of being busy in personal work, could not draft the application for pleadings. Hence; pleadings are not possible. Hence, it is requested to grant time till date fixed for submission of pleadings.” 19. Hence; pleadings are not possible. Hence, it is requested to grant time till date fixed for submission of pleadings.” 19. Court passed following order on 30.7.2007 : ^^30-7-07 ^^vkt oknh dh vksj ls 53 x izk- i- iSjoh nkf[ky djus gsrq fu;r frfFk rd le; fn;s tkus gsrq nkf[ky gqvk isl gksdj vkns'k gqvk A Lohd`r A^^ “ 30.7.07 Today, an application being paper No. 53C has been filed on behalf of the plaintiff seeking time to be granted, till the next date, for putting forth pleadings; whereupon it was ordered - Allowed.” 20. Time to take steps had expired on 29.7.2007. Court’s order dated 30.7.2007 is not in accordance with the requirement of proviso to Rule 11, CPC. 21. Thereafter on 14.8.2007 plaintiff submitted another application (Paper No. 55Ga) wherein again he requested fifteen days’ time for filing amendment. This application’s contents are as under : “lsok esa fuosnu gS fd mDr okn esa oknh ds vf/koDrk Jh vkj0Mh0 HkkxZo] ,MoksdsV dks la'kks/ku izkFkZuk i= izLrqr djuk Fkk]] ysfdu og fiNys ikap fnuksa ls vius t:jh dk;Z ls t;iqj x;s gq, Fks vkSj vkt lqcg gh ykSV dj vk;s gSaA i;kZIr le; u fey ikus dh otg ls og la'kks/ku izkFkZuk&i= rS;kj ugha dj lds gSaA vr% vkt izkFkZuk&i= la'kks/ku nkf[ky dj ikuk laHko ugh gSA vr% izkFkZuk gS fd vkt dh rkjh[k LFkfxr dj la”kks/ku izkFkZuk&i= izLrqr djus 15 fnu dk le; nsus dh d`ik djsaA” “It is submitted that in the aforesaid suit, Sri R. D. Bhargava, counsel for the plaintiff had to file an Amendment Application but he was in Jaipur for last five days in connection with some urgent work and has returned this morning only. Not having sufficient time he has not been able to prepare Amendment Application. Hence, it is not possible to file Amendment Application today. Hence, the matter may please be adjourned for today, granting 15 days’ time for filing Amendment Application.” (English Translation by Court) 22. Thereupon Court passed following order on 14.8.2007 : ^^14-8-07 vkt i=koyh is'k gqbZ oknh dh vksj ls iqdkj ij 54 ?k izk- i= eqYroh rkjh[k nh x;h dksbZ ,rjkt ugha gS vr% vkns'k gqvk fd i=koyh okLrs vfxze vkns'k fnukad 5-9-07 dks is'k gksA^^ “14.8.2007 File presented today. On being so sought on behalf of the plaintiff through an application being paper No. 54D, the case stands adjourned on which none raises any objection. On being so sought on behalf of the plaintiff through an application being paper No. 54D, the case stands adjourned on which none raises any objection. Hence; let it be ordered that the file be put up on 5.9.2007 for further orders.” (English Translation by Court) 23. Above order shows that there was another application 54C seeking adjournment which was not objected and thereafter matter was adjourned to 5.9.2007. It does not appear that any order was passed on application on 14.8.2007(Paper No. 55C). It thus cannot be said that on this date plaintiff’s request to grant further time was accepted by Court. Even otherwise there is no compliance of proviso to Rule 11. 24. Then on 22.8.2007 defendant moved an application stating plaintiff having failed to comply Court’s direction, plaint should be rejected and on this application, Court passed following order on 22.8.2007. “22-08-2007 vkt izfroknh dh vksj ls 55d izk0 i= U/o 7 R 11 CPC dk nkf[ky gqvk is'k gksdj vkns'k gqvk fd Put up on the date fixed” “22.8.2007 Today an application under Order 7 R 11 CPC being 55A was filed on behalf of the defendant; on presentation whereof an order was passed: “Put up on the date fixed.” (English Translation by Court) 25. Thereafter on 25.8.2007 amendment application (Paper No. 56A) was filed by plaintiff. 26. The above chain of events makes it very clear that neither there was compliance of order dated 19.7.2007 for taking steps for correction of valuation in plaint nor requisite stamp papers were supplied within time. Further there was no order of extension of time was passed by Trial Court as contemplated under proviso to Rule 11, CPC. Hence, Court below has rightly passed order dated 25.10.2007 rejecting plaint under Order VII, Rule 11, CPC for non compliance of order dated 19.7.2007. 27. We answer the question raised in appeal against appellant. No other point was argued. Appeal lacks merit and is dismissed.