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Madhya Pradesh High Court · body

2017 DIGILAW 86 (MP)

Ravishankar v. Satyanarayan

2017-01-17

VIVEK RUSIA

body2017
ORDER 1. Petitioners have filed the present petition being aggrieved by the order dated 19.10.2016 passed by the XVII Civil Judge, Class-I, Indore in Civil Suit No.64A/2016. 2. Petitioner/plaintiff filed a suit for specific performance of contract, declaration and perpetual injunction against the defendant. Plaintiff valued the suit for specific performance of contract at Rs.7 lacs and paid ad valorem court-fee of Rs.74,000/-. For the relief of declaration he valued the suit at Rs.1000/- and paid the fixed Court fee of Rs.500/- and for the relief of injunction he valued the suit at Rs.1000/- and paid the fixed court-fees of Rs.120/-. Thus in total the suit was valued at Rs.7,02,000/- and paid the court-fee of Rs.74,620/-. 3. Notice was issued to the defendants and they remained ex parte before the trial Court. While deciding the application under Order 39 rules 1 and 2 CPC learned trial Court suo moto raised an objection that the plaintiff is required to pay ad valorem court-fee for the relief of injunction. By the impugned order dated 19.10.2016 in exercise of powers under Order 7 rule 11 CPC trial Court has directed the plaintiff to properly value the suit and pay the court-fee within 15 days, failing which the plaint would be returned. According to the learned trial Court when the plaintiff is claiming the relief of declaration under section 7(iv) (c) which is not a consequential relief then under Article 17 of Second Schedule of Court-fees Act he has to pay ad valorem court-fee. He has to value the suit as per the market value of the property and liable to pay ad valorem court-fees. Being aggrieved by the aforesaid order, petitioner filed the present writ petition. 4. Shri Kshirsagar, learned counsel for the petitioner submits that the relief of injunction prayed by the petitioner has not been prayed as consequential relief but as an independent relief. Even if the relief of specific performance and declaration are not granted still the relief of injunction can be granted as they are in settled possession for more than 16 years. In support of his submissions he has placed reliance over the judgment of this Court in the case of Sabina @ Farida w/o Masood Raza Khan v. Mohd. Even if the relief of specific performance and declaration are not granted still the relief of injunction can be granted as they are in settled possession for more than 16 years. In support of his submissions he has placed reliance over the judgment of this Court in the case of Sabina @ Farida w/o Masood Raza Khan v. Mohd. Abdul Wasit, reported in 1997(1) JLJ 105 = 1997(1) MPLJ 554 , Nainsukh Kishandas and others v. Smt.Manish Choudhari and others reported in 1998(2) MPLJ 79 and Abdul Hussain and others v. Mansoor Ali and others, reported in 2010(3) MPHT 83 (DB). 5. That in para-4 of the plaint plaintiff has pleaded that an agreement to sell dated 25.6.1999 was executed between the plaintiff and defendants for the sale of flats No.303 and 304 for a total consideration of Rs.7 lacs. At the time of agreement advance amount of Rs.3 lacs was paid and the possession was handed over and they are ready and willing to get the sale deed executed after making payment of balance consideration. Plaintiffs are residing in the said flats and despite notice defendants are not executing the sale deed. For the purpose of relief of specific performance the suit has been valued at Rs.7 lacs and ad valorem court-fee has been paid, therefore, for the purpose of specific performance proper valuation has been done and proper court-fee has been paid by the plaintiff. 6. In para-11 of the plaint plaintiff has stated that defendants are threatening him for eviction from flat No.303 for which they have made complaint to the Police and the relief of injunction has been sought that the defendant be restrained from interfering with the peaceful possession. The relief of “declaration” is sought that they have right to continue to remain in possession and right to use the property. In the plaint plaintiffs/petitioners have though stated that they are in possession since 27.5.1999 but no relief has been claimed on the ground of adverse possession. The main relief is sought regarding the relief of specific performance and the other relief that they are having right to continue in possession and use the property which is a relief in the nature of “declaration” and further relief of injunction that the defendants be restrained to interfere in possession is consequential relief. The main relief is sought regarding the relief of specific performance and the other relief that they are having right to continue in possession and use the property which is a relief in the nature of “declaration” and further relief of injunction that the defendants be restrained to interfere in possession is consequential relief. The relief of “injunction” cannot be an independent relief in favour of the plaintiffs unless it is declared that he has right to continue in possession, therefore, the relief of injunction is not an independent relief but a consequential relief. The Division Bench of this Court in the case of A.K.Ghosh v. Dhruv Kumar Haryani and another, reported in 2011(4) MPLJ 493 , has held as under : Section 7(iv)(c) provides for a declaratory decree and consequential relief. Section 7 (iv)(d) provides a decree for an injunction. The section provides that in all such suits the plaintiff shall state the amount on which he values the relief sought. Section 8 of the Suits Valuation Act specifically provides that where any suit other than those provides that court-fees valued and jurisdictional value shall be the same, except those which are referred in paragraphs v, vi and ix of section 7 of the Court-fees Act. The present suit is undoubtedly covered under section 7(iv)(c) or (d) and in both the conditions the plaintiff has to value suit for the purpose of jurisdiction and court-fees same. 8. Section 7(iv)(d) also provides that to obtain an injunction, the plaintiff shall state the amount at which he values the reliefs sought. In this case for encroached area the plaintiff has valued the suit for Rs.39,750/-, but has paid fixed court-fees of Rs.500/-, while as per section 7(iv)(d) of the Court-fees Act ad valorem court-fees is required. So far as fixed court-fees on the relief of injunction is concerned it is governed by Article 17 of Schedule-II, which provides as under :- The aforesaid Article specifically provides that to obtain a declaratory decree where no consequential relief is prayed, fixed court-fees is provided. Similarly where it is not possible to estimate at a money-value of the subject-matter in dispute, fixed court-fees is provided. 9. But in the present case, the plaintiff has put valuation in respect of property by which, petitioner is seeking relief of mandatory injunction. Similarly where it is not possible to estimate at a money-value of the subject-matter in dispute, fixed court-fees is provided. 9. But in the present case, the plaintiff has put valuation in respect of property by which, petitioner is seeking relief of mandatory injunction. When the plaintiff himself has put the valuation of property and sought a relief of mandatory injunction, then as per the valuation put by the plaintiff he was required to make payment of ad valorem court-fee. 7. In view of above judgment relief of injunction is not an independent relief but a consequential relief for which plaintiff is required to put a proper valuation of suit and to make payment of ad valorem court-fee. The order passed by the trial Court is just and proper and does not suffer from any procedural infirmity or material irregularity or jurisdictional error so as to warrant interference in exercise of extra ordinary jurisdiction conferred by Article 227 of the Constitution of India. Accordingly, writ petition fails and is hereby dismissed.