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2018 DIGILAW 1070 (ALL)

Sanjay Tomar v. Shobha Saklani

2018-05-01

ANJANI KUMAR MISHRA

body2018
JUDGMENT : ANJANI KUMAR MISHRA, J. 1. Heard Shri Swapnil Kumar, learned counsel for the revisionist. 2. This revision has been filed by the defendant in a suit for partition filed by the plaintiff-opposite party and challenges the order dated 07.03.2018 passed by the Civil Judge (Senior Division), Agre. 3. By this order, application no. 20 C filed by the revisionist has been dismissed as not maintainable at this stage. 4. The contention in the application filed by the revisionist was that the suit for partition had been filed by the plaintiff valuing the suit property as Rs. 20 lakhs and claiming 1/3 share therein. Court fees to the extent of 1/4 of the plaintiff's share in the property had been paid. 5. Counsel for the revisionist submits that as per the plaint allegations, the plaintiff is admittedly not in possession over the property. Therefore, ad valorem court fees on the market value of her share was liable to be paid. His application has been wrongly rejected, holding that no written statement had been filed and, therefore, it was not maintainable at this stage. 6. Counsel for the revisionist also contends that once issue of court fees has been raised, the same has to be decided. Since the issue has not been decided by the trial Court, the suit cannot proceed, in view of Section 6 (2) of the Court Fees Act. In support of his contention he has placed reliance upon the full Bench decisions in Smt. Bibbi and another Vs. Shugan Chand and others, AIR 1968 Allahabad 216 and Onkar Mal Vs. Ram Sarup, AIR 1954 Allahabad 722. 7. For the purposes of this case, the full Bench decision in Smt. Bibbi (supra) is relevant only to the extent, it holds "The combined effect of sections 4, 6, 28 is that a plaint which is not properly stamped cannot be filed or received, and even if such a plaint is filed and received it will remain invalid unless and until it is properly stamped. The fact that the plaint was held to be a valid document by the court receiving it neither precludes the court of appeal from judging its validity nor absolves it from the duty of doing so. The fact that the plaint was held to be a valid document by the court receiving it neither precludes the court of appeal from judging its validity nor absolves it from the duty of doing so. If the court of appeal finds that the plaint is invalid by reason of not being properly stamped it has to ignore the plaint altogether unless and until it is properly stamped." 8. In the facts and circumstances of the case at hand, the Full Bench decision in Onkar Mal (supra), appears relevant because therein also, the dispute arose from a suit for partition and the issue involved was whether the court fee payable should 1/4 of the plaintiff's share or whether the court fee payable was ad valorem court fee, on the value of the plaintiff's share, since the plaintiff was found to be not in possession over the property sought to be partitioned. The trial Court, on the issue as to whether the plaintiff was in possession or not, returned a finding that the plaintiff was not able to prove his joint possession over the property in suit. The finding was affirmed in appeal. The issue of payment of court fee was raised by the Stamp Reporter at the second appellate stage. Court fee payable before the trial Court as also before the first appellate court in accordance with the second part of Section 7 (vi A) was reported to be deficient. 9. The Full Bench upheld the report of the Stamp Reporter and directed that the deficiency be made good within a period of three months, failing which the memorandum of appeal would stand rejected. In paragraph 12, the Full Bench has held as follows:- "12. An examination of the law of Court-fee will reveal that when a plaint is presented, two questions ordinarily arise for scrutiny. In the first place, the plaint has to be examined to find out the real nature of the suit, that is to say, as to under which of the several categories of suits mentioned in the Court-fees Act the particular suit falls, This is what is generally called the classification of the suit in the first instance. 10. After this is done, the next stage is to find out the relevant provision in the Court-fees Act for the purpose of computation of court-fees. 10. After this is done, the next stage is to find out the relevant provision in the Court-fees Act for the purpose of computation of court-fees. No difficulty arises in those classes of cases where a fixed fee has been provided in Schedule II, but if a suit is of the category where 'ad valorem' court-fee is leviable, as in the present case, the court will proceed to value the subject-matter according to the rules for computation, as set out in the various parts of Section 7." 11. Further in paragraph 14, the Full Bench has held as follows:- "This process also involves the examination of the plaint allegations and, if there is nothing to indicate otherwise, the plaintiff's valuation 'prima facie' is accepted as correct. Ordinarily, the Court would accept court-fee paid in the first instance as correct, but if it transpires subsequently that an allegation of fact on the basis of which the court-fee was computed is not correct, then it is within the power of the Court to demand additional court-fee before the judgment is pronounced." 12. The Full Bench accepted the finding returned by the trial Court and first appellate court that the plaintiff was out of possession of their share, on the date the suit was filed. 13. Additionally, the full Bench as also referred to Section 6(3) of the Court Fees Act, which is quoted below:- "Section 6(3):-If a question of deficiency in court-fee in respect of any plaint or memorandum of appeal is raised by an officer mentioned in Section 24-A the Court shall, before proceeding further with the suit or appeal, record a finding whether the court-fee paid is sufficient or not. If the Court finds that the court-fee paid is insufficient, it shall call upon the plaintiff or the appellant, as the case may be, to make good the deficiency within such time as it may fix, and in case of default shall reject the plaint or memorandum of appeal: 14. Provided that the Court may, for sufficient reasons to be recorded, proceed with the suit or appeal if the plaintiff or the appellant, as the case may be, gives security, to the satisfaction of the Court, for payment of the deficiency in court-fee within such further time as the Court may allow. Provided that the Court may, for sufficient reasons to be recorded, proceed with the suit or appeal if the plaintiff or the appellant, as the case may be, gives security, to the satisfaction of the Court, for payment of the deficiency in court-fee within such further time as the Court may allow. In no case, however, shall judgment be delivered unless the deficiency in court-fee has been made good, and if the deficiency is not made good within such time as the Court may from time to time allow, the Court may dismiss the suit or appeal." 15. This provision relates to an objection regarding deficiency of court fee being raised by an officer mentioned in Section 24 of the Act. This is not the position in the case at hand. Here, the objection is by the defendant. This sub-section is therefore, strictly speaking, not attracted in the case at hand. Moreover, the proviso to this section lays down that even if the Court proceeds with the suit on security being furnished by the plaintiff towards the deficiency, the final judgment shall not be pronounced until the deficiency has been made good. 16. Coming to the case at hand and in the context of the facts of the case and the parts of the full Bench decision extracted above, it is relevant to note that the plaintiff, in his plaint, especially in paragraphs 18 and 19, has averred as follows:- "18. That the plaintiff submits that the defendants have been obstructing the plaintiff in her enjoyment of the suit properties along with them. That the plaintiff and the defendants are governed by the Mitakshara School of Hindu Law, and accordingly, the plaintiff is entitled to one-third share in the suit property. 19. That the plaintiff has her share in the suit property as the property was purchased by the father and mother of the plaintiff and has not been partitioned among the legal heirs of Late Shri Haresh Singh Tomar and Late Smt. Tara Tomar. It is pertinent to mention that the plaintiff has not parted her portion of share with any of the defendants." 17. The plaintiff therefore, alleges to be in joint possession of the suit property. 18. It is pertinent to mention that the plaintiff has not parted her portion of share with any of the defendants." 17. The plaintiff therefore, alleges to be in joint possession of the suit property. 18. This revision has been filed by the revisionist, relying upon Section 7 (vi-A) of the Court Fees Act which is quoted below:- "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." 19. A bare reading of the said provision shows that the second part of the said provision on the basis of which it is contended that the plaintiff-opposite party was required to pay ad valorem court fees on the market value of her share, comes into play only when the plaintiff claims to be a co-parcener or co-owner and is not in possession of the property claimed to be joint property and his claim of being a joint owner (co-parcener or co-owner), is denied. 20. In the context of the provision, it is relevant to note that the revisionist has not filed any written statement and the order impugned has been passed upon an application, purporting to be an application under Section 6 and 28 of the Court Fees Act, 1870 read with Section 151 CPC. The copy of this application, filed on the record of this revision, is a mere application, not supported by any affidavit. This application, apart from the prayer made therein, consists of just three paragraphs. Only paragraphs 2 and 3 are relevant. They are quoted below:- "2. That in the plaint the plaintiff has alleged that schools are running over the properties in question, therefore the plaintiff has no possession and occupation over the properties in question or any part of it. 3. That the plaintiff herself has not alleged that she is in possession and occupation of the properties in question or any part of it." 21. 3. That the plaintiff herself has not alleged that she is in possession and occupation of the properties in question or any part of it." 21. From a reading of the two paragraphs extracted above, this Court is of the opinion that in the objection filed by the revisionist, there is no direct or categorical assertion that the plaintiff is not in possession over the suit property. The question of payment of court fee in accordance with second part of Section 7 (vi-A) would arise only when the plaintiffs' possession is denied. As on date there was no denial by the defendant as neither any affidavit in support of the objection nor any written statement has been filed. The trial Court has, therefore, rightly rejected the objection at this stage only. It has not rejected the contention, finally. 22. Moreover, the full Bench in Onkar Mal (supra) has held that any deficiency in court fees can be recovered at any stage, even at the second appellate stage. For this reason also, the impugned order calls for no interference. 23. The revision is accordingly dismissed.