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2017 DIGILAW 293 (ALL)

SURENDRA KUMAR AHUJA v. WAZEER CHAND AHUJA

2017-01-20

P.K.S.BAGHEL

body2017
JUDGMENT : Hon'ble Pradeep Kumar Singh Baghel, J. 1. This civil revision has been preferred against the judgment and order dated 1.11.2012 passed by the Civil Judge, Senior Division, Meerut in Original Suit No. 1206 of 2009 (Wazeer Chand Ahooja v. Surendra Chand Ahuja). By the impugned order the trial court has decided a preliminary issue with regard to insufficient court fee. 2. The essential facts of the case are that one Wazeer Chand Ahuja (since deceased) instituted a suit seeking a mandatory injunction to his son/ defendant to deliver the possession of the property to the plaintiff, failing which the possession be delivered to the plaintiff through process of the court. A further relief was sought to award the damages at the rate of Rs. 10,000/- per month during the pendency of the suit until the possession is delivered to the plaintiff. 3. The plaintiff's case was that the property in dispute is a residential house which is a self acquired property. His name is recorded in the municipal records and he has been regularly paying the taxes. The plaintiff has no source of income and he is living in House No. 8-D, Prahlad Nagar, near Geeta Bhawan, Meerut. The said house consists of only one room and a verandah on ground floor and one room at the first floor. In the said accommodation the plaintiff is living with one of his sons Ashok Kumar Ahuja, his wife and grandsons. Six persons are living in the said accommodation. 4. The defendant in the past had tried to grab the suit property. He got his name recorded in the municipal records by playing fraud which got rectified by the plaintiff and his name was struck off. Similarly, he had secured the signatures of the plaintiff on some blank papers. The aforesaid conduct of the defendant (son) lost the faith of the plaintiff and due to the constraint of the accommodation, he wants to get the suit property vacated from his son who was not cooperating in the matter. 5. The plaintiff had sent a notice dated 31.12.2008 through his counsel and has terminated the license of his son to live in his house and demanded a sum of Rs. 10,000/- per month as damages for the use of accommodation. 5. The plaintiff had sent a notice dated 31.12.2008 through his counsel and has terminated the license of his son to live in his house and demanded a sum of Rs. 10,000/- per month as damages for the use of accommodation. The said notice was served upon the defendant on 3.1.2009 but he has not taken any step either to vacate the premises or pay the amount demanded by the plaintiff. It is also stated that since after the period mentioned in the notice is over the status of the defendant has become trespasser. His suit was valued as Rs. 25 lakhs and the court fee was accordingly paid. 6. The defendant contested the suit and filed his W.S.. He has admitted the title of the plaintiff. A preliminary objection was raised by the defendant with regard to the court-fee. It was stated that the land area is 164.40 square meters and according to the agreement, the Government circle rate and market value of the land in the vicinity on the date of filing of the suit was Rs. 25,000/- per square meter hence the valuation of the land comes to Rs. 40 lakhs approximately and the valuation of the construction on the date of filing of the suit was Rs. 25 lakhs Thus the total market value of the disputed property was Rs. 65 lakhs on the date of filing of the suit. 7. It was further averred that the plaintiff has incorrectly valued the suit property in the plaint. It was urged that the plaintiff has sought a relief of mandatory decree or injunction claiming ownership of both land and building and asking ejectment of the defendant. The plaintiff in the garb of the said relief wants to get declaration regarding his ownership of the land and building under an instrument and consequently seeks relief of possession. The relief of possession, as asked for under mandatory injunction, is consequential to the plaintiff proving himself his absolute title. If the plaintiff fails to prove his title, he would not be entitled to get relief of possession. The plaintiff is liable to pay ad valorem court fee as per Section 7 (iv-a) of the Court Fee Act. 8. Aggrieved by the said order, the present revision has been preferred. If the plaintiff fails to prove his title, he would not be entitled to get relief of possession. The plaintiff is liable to pay ad valorem court fee as per Section 7 (iv-a) of the Court Fee Act. 8. Aggrieved by the said order, the present revision has been preferred. Pending consideration, the plaintiff-respondent Wazeer Chand Ahuja died and his legal heir / representative, another son Ashok Kumar Ahuja has been impleaded. 9. Learned counsel for the revisionist Sri Nipun Singh submits that the trial court has failed to consider that for the relief sought by the plaintiff, the revisionist is liable to pay court fee as per Section 7 (iv-a) of the Court Fee Act and the plaintiff has wrongly paid court fee as per Section 7 (iv-b) of the Court Fee Act. In fact the relief for possession is a camouflage for mandatory injunction. The said consequential relief can be granted to the plaintiff if he is successful in proving his absolute title. From the reading of the relief of the plaint it is manifestly clear that the plaintiff is trying to get his right and title decided and also wants the possession of the property in dispute. Lastly, he urged that the trial court had wrongly applied the law laid down by this Court in the case of Ajab Singh v. Shital Puri (deceased) through his L.R., 1993(1) ARC 403. 10. The plaintiff is father of the revisionist. His case is that his son is living in his house as a licensee which he has duly revoked by sending a notice to him. The revisionist's son in his written statement has not denied the title of the plaintiff. In his W.S. he has admitted that the plaintiff is the owner of the property. It is also stated in the W.S. that the defendant is an obedient son of his father. 11. The question that falls for consideration is whether the civil revision against the order of the Civil Judge in respect of court fee is maintainable or not. In his W.S. he has admitted that the plaintiff is the owner of the property. It is also stated in the W.S. that the defendant is an obedient son of his father. 11. The question that falls for consideration is whether the civil revision against the order of the Civil Judge in respect of court fee is maintainable or not. The Supreme Court as well as this Court has taken a consistent view that a revision against the order relating to adequacy of court fee paid by the plaintiff is not maintainable as the object of the Court Fee Act is to collect the revenue for the benefit of the State and it cannot be used by the defendant to obstruct the progress of the suit. In the case of Sri Rathnavarmaraja v. Smt. Vimla, AIR 1961 SC 1299 the Supreme Court has held thus: "(2) 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...." 12. In the case of A. Nawab John and others v. V.N. Subramaniyam, (2012) 7 SCC 738 the Supreme Court has followed the aforesaid judgment and observed as under: "23. That the question of court fee is a matter between the plaintiff and the court is a principle which has been followed for a long time. The Madras High Court in S.L. Lakshmana Ayyar vs. T.S.P.L.P. Palaniappa Chettiar, AIR 1935 Mad 927 held: (AIR P. 928) “...Under the prevailing usage, the court fully goes into the question relating to the Court fee, only upon an objection taken in the written statement by the defendant, but as the judicial Committee points out in Rachappa Subrao Jadhav v. Shidappa Venkatrao Jadhav (1918-19) 46 IA 24 : 36 MLJ 437 the Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, and from that view it follows, that although in actual practice a defendant is permitted to object that the proper court fee has not been paid, he has, strictly speaking, no legal right to raise such a plea, but his function must be deemed to be, subject to the court’s leave, merely to assist it in coming to a proper decision...." 13. This Court in the case of Bhartiya Jeevan Bima Nigam and another v. Shrimati Sudama Devi, 1997 (30) ALR 425 has followed the judgment in Rathnavarmaraja (supra) and held that the revision is not maintainable. Relevant part of the said judgment is extracted below: "4. This Court in the case of Bhartiya Jeevan Bima Nigam and another v. Shrimati Sudama Devi, 1997 (30) ALR 425 has followed the judgment in Rathnavarmaraja (supra) and held that the revision is not maintainable. Relevant part of the said judgment is extracted below: "4. For entertaining a revision under Section 115 CPC, the High Court is to see whether any jurisdictional errors had been committed as indicated in clauses (a), (b) or (c) of sub-section (1) of Section 115, but the proviso to this sub-section further directs that the High Court shall not, under Section 115, vary or reverse any order made, except where the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or the order if allowed to stand would occasion on failure of justice or cause irreparable injury to the party against whom it was made. When the plaintiff applied for permission to sue as an indigent person, the defendants raised an objection and the objection was overruled. If the order had gone in favour of defendants, it could have only meant that the plaintiff would not be permitted to sue as an indigent person, but that could not have finally disposed of the suit. Moreover, it was a question of payment of certain court fee only, which could at the proper time be realised from the plaintiff and it cannot be deemed to occasion a failure of justice or to cause an irreparable injury to the defendants. 5. A case-law has been relied upon by the learned counsel for the respondent stating that it was a matter between the State and the plaintiff and a private defendant had no authority to challenge the order. Reference was made to AIR 1961 SC 1299 . The Supreme Court ruled in this case that on the question of court fee on plaint, the defendant had no grievance and, accordingly, had no right of revision." 14. Recently, this Court in the case of Shankar Lal Sharma v. Babulal and others, 2014(4) ALJ 177 following the judgment in Rathnavarmaraja (supra) and Shamsher Singh v. Rajiner Prasad and others, AIR 1973 SC 2384 has held as under: "6. Recently, this Court in the case of Shankar Lal Sharma v. Babulal and others, 2014(4) ALJ 177 following the judgment in Rathnavarmaraja (supra) and Shamsher Singh v. Rajiner Prasad and others, AIR 1973 SC 2384 has held as under: "6. The Apex court in AIR 1961 SC 1299 Sri Rathnavarmaraja v. Smt. Vimla has ruled that no revision lies on the question of valuation and court fees where jurisdiction of the court is not involved. The aforesaid decision has been followed in AIR 1973 SC 2384 Shamsher Singh v. Rajinder Prasad and others. Admittedly, the jurisdiction of the court is not the subject matter. Therefore, in view of the above decisions the order dated 12.3.2013 is not revisable and as such the revisional court has rightly not interfered with the same." 15. What emerges from the aforesaid judgments is that the civil revision is not maintainable against the order of the court below, as such the revision is dismissed as not maintainable. 16. No order as to costs.