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Himachal Pradesh High Court · body

2018 DIGILAW 1225 (HP)

Raj Kumar v. Ashwani Kumar

2018-07-05

VIVEK SINGH THAKUR

body2018
JUDGMENT : Vivek Singh Thakur, J. OMP No. 128 of 2014 has been preferred under Section 10 of Code of Civil Procedure (hereinafter referred to as 'CPC') by defendant No. 3 for staying present suit mainly on the ground that Civil Suit No. 166/2013, previously filed in the Court of learned Civil Judge (Junior Division) (II) Kangra, titled as Rama Devi versus Raj Kumar etc. is pending between the same parties with respect to the same subject matter and parties are duly represented through their counsel in the said suit. 2. In reply to the said application, filing of Civil Suit No. 166/2013 prior to filing present suit and pendency thereof in the Court of Civil Judge (Junior Division) (II) Kangra is not disputed but it is submitted that the said suit is not maintainable in the said Court for lacking inherent pecuniary jurisdiction to try the said suit for actual and correct value of the suit property. It is contended that decree for possession has also been prayed in the Civil Suit filed by defendant No. 3, but, no proper court fee has been affixed as required to be paid for that relief and, thus, that Civil Suit is under valued and cannot be permitted to continue despite filing of the same prior in time. 3. OMP No. 341 of 2017 has been preferred on behalf of the plaintiff seeking transfer of Civil Suit No. 166/2013, titled Rama Devi versus Raj Kumar and others pending before learned Civil Judge (Junior Division) (II) Kangra to this court and to try the same alongwith present suit (Civil Suit No. 2 of 2014) in this Court on the ground that the present suit filed for declaration of ownership of plaintiff on the basis of Will is not maintainable in the Court of learned Civil Judge for lack of pecuniary jurisdiction as the value of the property involved for declaration is Rs. 91 lacs, which is much more than Rs. 35 lacs and for which value, only this Court is having pecuniary jurisdiction. 4. 91 lacs, which is much more than Rs. 35 lacs and for which value, only this Court is having pecuniary jurisdiction. 4. It is also canvassed that present suit in the High Court is for larger relief, which is not permissible before learned Civil Judge, Kangra for want of pecuniary jurisdiction and plaintiff cannot be precluded from advancing his claim on the ground that suit filed before learned Civil Judge, Kangra is prior in time and even, in case of preferring counter claim by plaintiff at Kangra, this suit would have been liable to be transferred to the High Court. Further, as the Court of learned Civil Judge, Kangra and High Court are not having concurrent jurisdiction, thus, in view of the ratio of law laid down by the apex Court in case titled as National Institute of Mental Health & Neuro Sciences versus C. Parameshwara, reported in (2005) 2 Supreme Court Cases 256, relied upon in ASPI Jal and another versus Khushroo Rustom Dadyburjor, reported in (2013) 4 Supreme Court Cases 333, the suit at Kangra is liable to be transferred to this High Court instead of staying the suit. 5. This application has been resisted by defendant No. 3 on the ground that the suit filed in this Court is over valued as for suit for declaration, court fee required to be affixed is not ad valorem court fee on the value of the property involved with respect to declaration especially for a declaration on the basis of Will, but, a fixed court fee, as provided under Section 7 (iv) (c) of the H.P. Court Fee Act, 1968 (hereinafter referred to as 'Court Fee Act') and, therefore, transfer of Civil Suit No. 166/2013 from the Court of learned Civil Judge (Junior Division) (II), Kangra to this Court has been opposed. 6. 6. It is argued on behalf of defendant No. 3 that it is basic principle that suit is to be filed in the lowest rung having the jurisdiction to try the same, but, based on the pecuniary jurisdiction and in a suit for declaration with respect to Will, not filed by the executant, court fee is not to be affixed on the basis of value of the property involved in the Will, rather, fixed court fee is required to be paid for filing a declaratory suit under Section 7 (iv) of the Court Fee Act and no court fee for alternative relief is required to be paid and, therefore, for prayer, in alternative, for passing a decree for possession by defendant No. 3 in the suit filed at Kangra, no court fee is required to be affixed. It is further submitted that in case suit at Kangra is transferred to this High Court, the right of defendant No. 3 to assail the findings of the trial Court, if necessary, would be prejudicially affected, as it would not be possible for her to assail the judgment passed by this Court in the apex Court for want of necessary means and capability for doing so. 7. It is undisputed that both the suits are related to one and the same property. Plaintiff is claiming his right on entire property on the basis of registered Will, dated 28th December, 2010, executed by deceased-Kewal Krishan whereas defendant No. 3 is claiming her right on the part of property as legally wedded wife of deceased-Kewal Krishan on the basis of Will, dated 20th June, 2013, executed by deceased-Kewal Krishan in favour of the plaintiff and defendants No. 1 and 3. 8. Kewal Krishan had expired on 7th July, 2013. Civil Suit No. 166 of 2013 was filed before learned Civil Judge (Junior Division) (II), Kangra on 17th October, 2013 whereas Civil Suit No. 2 of 2014 was filed in the Court on 26th December, 2013. Parties to the suit are substantially the same in both the civil suits. 9. 8. Kewal Krishan had expired on 7th July, 2013. Civil Suit No. 166 of 2013 was filed before learned Civil Judge (Junior Division) (II), Kangra on 17th October, 2013 whereas Civil Suit No. 2 of 2014 was filed in the Court on 26th December, 2013. Parties to the suit are substantially the same in both the civil suits. 9. Perusal of plaints in both the suits, available on record, reflects that defendant No. 3 has filed Civil Suit No. 166/2013 at Kangra for permanent prohibitory injunction against the plaintiff and defendants No. 1 & 2 for restraining them to interfere in the property falling in her share and also in bus transport business being run by her with further prayer for decree of declaration to the effect that Will, dated 28th December, 2010 is null and void as the same has been cancelled on 22nd February, 2012, by the executant of the Will, with alternative prayer for possession, if dispossessed during pendency of the suit, whereas present suit has been filed for declaration in favour of the plaintiff on the basis of Will, dated 28th December, 2010 with prayer for declaration that cancellation deed, dated 22nd February, 2012 is void and also for declaration that Will, dated 20th June, 2013 set up by defendant No. 3 is forged, fabricated and not binding on the parties and also for consequential declaration that plaintiff is successor to the estate of deceased-Kewal Krishan by virtue of testamentary succession. Prayer for permanent prohibitory and mandatory injunction against the defendants from interfering in peaceful possession in the right and title of the plaintiff has also been made. 10. Section 7 of Chapter III of Court Fee Act deals with computation of fee payable in certain suits. Section 7 (iv) (c) of Court Fee Act deals with computation of fee for a declaratory decree and consequential relief. It provides that in a suit for declaration with consequential relief, the plaintiff shall state the amount at which he values the relief sought and court fee shall be fixed accordingly subject to condition that minimum court fee in each case shall be Rs. 13/-. It provides that in a suit for declaration with consequential relief, the plaintiff shall state the amount at which he values the relief sought and court fee shall be fixed accordingly subject to condition that minimum court fee in each case shall be Rs. 13/-. Second proviso to Section 7 (iv) of Court Fee Act provides that in suit coming under sub-clause (c) of Section 7 (iv) of Court Fee Act, in case where the relief sought is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by paragraph (v) of this Section. Paragraph (v) of Section 7 of the Court Fee Act provides affixation of fee according to the value of subject matter in the manner prescribed in this paragraph. 11. It is case of the plaintiff that as the consequential relief sought in present plaint is testamentary succession of the property in suit, therefore, second proviso to paragraph (iv) of Section (7) read with sub-clause (c) shall be applicable in the present case and the court fee is payable according to the valuation of the entire property in suit, as has been calculated by the plaintiff. 12. No doubt, it is settled law, as held by the apex Court in cases titled as Sathappa Chettiar versus Ramanathan Chettiar, reported in AIR 1958 Supreme Court 245, and Meenakshisundaram Chettiar versus Venkatachalam Chettiar, reported in AIR 1979 Supreme Court 989, followed in Tara Devi versus Sri Thakur Radha Krishna Maharaj through Sebaits Chandeshwar Prasad and Meshwar Prasad and another, reported in AIR 1987 Supreme Court 2085, that in a suit for declaration with consequential relief falling under Section 7 (iv) (c) of Court Fee Act, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation, both for purposes of court fee and jurisdiction, has to be ordinarily accepted and it is only in cases where it appears to the Court, on a consideration of the facts and circumstances of the case, that valuation is arbitrary, unreasonable and the plaint has been demonstratively wrongly valued, the Court can examine the valuation and can revise the same. 13. 13. It is also settled by the apex Court in case titled as Suhrid Singh alias Sardool Singh versus Randhir Singh and others, reported in (2010) 12 Supreme Court Cases 112 and 2010 (2) Civil Court Cases 510 (SC), that where a person, who is non-executant of a deed, but, is in possession and sues for declaration that deed is null and void and it is not binding on him or his share, he has to merely pay a fixed court fee and where the suit is for declaration and consequential relief of possession or injunction, court fee thereon is governed by Section 7 (iv) (c) of the Court Fee Act. The apex Court has distinguished the suit by the executant for avoiding the deed and suit by a person other than executant for avoiding the deed by seeking declaration that the deed executed by another person is invalid, void and non est, illegal and not binding on the plaintiff. It has been held that when a suit is brought by the executant for avoiding the deed, he has to sue for cancellation of the deed and, thus, he shall be liable to pay the court fee on the valuation of the deed whereas if the person, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that deed executed by executant is invalid, void and non est, illegal and he is not bound by it and in such a situation, the plaintiff, who is a non-executant and is in possession of the suit property, has to merely pay a fixed court fee prescribed under Court Fee Act and if the non-executant is not in possession and seek not only a declaration that the deed is invalid, but, also consequential relief of possession, he has to pay ad valorem court fee, as provided under Section 7 (iv) (c) read with second proviso to paragraph (iv) of the Court Fee Act. 14. 14. Plaintiff, in the present case, is not executant of the deeds sought to be declared null and void and the consequential relief sought by him is not for possession, rather, he is claiming the suit property in his possession as, in the suit, prayer for permanent prohibitory injunction against the defendants from interfering in the peaceful possession in the right and title of the plaintiff has been made, but, the said prayer is not a consequential relief. Therefore, applying the ratio of law laid down in Suhrid Singh alias Sardool Singh's case (supra), plaintiff has to pay only fixed court fee and not ad valorem court fee. 15. Consequential declaration sought by the plaintiff is that he is successor of the estate of deceased-Kewal Krishan by virtue of testamentary succession, i.e. Will, dated 28th December, 2010. The main declaration sought by the plaintiff is that Will, dated 28th December, 2010 is the last Will of the testator and cancellation deed thereof, dated 22nd February, 2012 is not valid and is void as having been executed under coercion, threat, undue influence. Further declaration sought by the plaintiff is that Will, dated 20th June, 2013, set up by defendant No. 3 is forged, fabricated and not binding on the parties. 16. It would also be relevant to refer judgment of the Patna High Court passed in case titled as Devasharay Singh versus Saroj Kumar @ Saroj Singh, reported in 2008 (4) Civil Court Cases 523 (Patna), wherein it has been observed that against a deed of transfer, two sorts of reliefs can be sought, the first is a declaration that a deed may be cancelled or avoided, whereas the other is a declaration that a deed is void ab initio, having no legal consequence and not binding on the plaintiff and if the plaintiff seeks a relief for cancellation of a deed, he has to pay ad valorem court fee as per valuation of the deed, but, if he seeks a relief for declaring the deed to be void ab initio and not binding upon him, a fixed declaratory court fee would be sufficient. 17. Further, the consequential declaration with regard to testamentary succession on the basis of Will, dated 28th December, 2010 is mock and spurious as the said declaration is already inclusive of the declaration sought by the plaintiff in the main prayer. 17. Further, the consequential declaration with regard to testamentary succession on the basis of Will, dated 28th December, 2010 is mock and spurious as the said declaration is already inclusive of the declaration sought by the plaintiff in the main prayer. In case of granting of prayer for declaration with regard to Will (s), as prayed in plaint, succession in favour of plaintiff will automatically follow even without any decree passed with regard to prayer pretended to be consequential relief. Therefore, it cannot be said that present suit is for declaratory decree and consequential relief. The prayer by the plaintiff appears to be clever phraseology to bring the suit under the ambit and scope of second proviso to paragraph (iv) of Section 7 of the Court Fee Act so as to overvalue the suit for ousting the jurisdiction of other Courts except High Court to hear and decide the lis. 18. For aforesaid reason also, I find that present suit, being a suit for mere a declaratory decree and, thus, provisions of paragraph (v) of Section 7 of the Court Fee Act are not attracted for valuation of the suit property for affixing the court fee. 19. In view of above discussion, plea of the plaintiff, that the suit is to be evaluated on the basis of the value of the suit property in the manner as provided under paragraph (v) of Section 7 of the Court Fee Act, is not sustainable and, thus, learned Civil Judge (Junior Division) (II), Kangra has pecuniary jurisdiction to try the present suit and is competent to decide the same. 20. Plea of plaintiff with regard to payment of court fee for alternative prayer of possession sought by defendant No. 3 in the civil suit at Kangra is not tenable. Defendant No. 3 (plaintiff therein) has pleaded that in case defendants therein forcibly dispossess her from the property, upon which she is claiming her right, during the pendency of that suit, a decree for possession be passed in her favour. In my opinion, there may be two eventualities for praying decree for possession in alternative, i.e. in case the plaintiff fails to prove possession and if defendant forcibly dispossesses the plaintiff during pendency of suit. At the time of filing suit, in case of plea of failure of plaintiff to prove possession, court fee may have to be paid, but, not in another eventuality. At the time of filing suit, in case of plea of failure of plaintiff to prove possession, court fee may have to be paid, but, not in another eventuality. Moreover, payment of court fee for alternative prayer may be considered at the time of final disposal of suit, if occasion arises for the same. Therefore, in suit preferred by defendant No. 3, for alternative prayer, as made, no separate court fee is liable to be affixed, at this stage. 21. Alternative prayer in suit at Kangra is not a distinct and separate prayer and in case, plaintiff is dispossessed from suit property falling in her share, in that eventuality, the Court will be required to consider as to whether defendant No. 3 (plaintiff in the suit at Kangra) is entitled to the said prayer. It is not an additional prayer to the rest of the prayers. Therefore also, no separate or additional court fee for this alternative prayer in suit at Kangra is required to be paid, at this stage. 22. Plaintiff herein is seeking transfer of suit filed in the Civil Court, Kangra to this Court for trying the same alongwith present suit whereas defendant No. 3, who is plaintiff in the suit filed in Civil Court, Kangra, is praying for staying of present suit, being latter in time, seeking converse declaration to the same documents, which were subject matter of the civil suit at Kangra. 23. In present suit, plaintiff is asserting his right on the entire property of deceased-Kewal Krishan on the basis of Will, dated 28th December, 2010 by claiming the same to be his last Will with further declaration that cancellation of the said Will vide cancellation deed, dated 22nd December, 2012 is not valid and subsequent will, dated 20th June, 2013 is forged and fabricated and is not binding upon him and as such, he has succeeded entire estate by testamentary succession. Further, decree for permanent prohibitory and mandatory injunction has also been sought restraining the defendants from interfering in his peaceful possession in his right and title in the suit land. 24. Further, decree for permanent prohibitory and mandatory injunction has also been sought restraining the defendants from interfering in his peaceful possession in his right and title in the suit land. 24. So far as suit of defendant No. 3 filed in Civil Court, Kangra, is concerned, the same has been filed asserting a right on the part of property falling in her share on the basis of Will, dated 20th June, 2013, seeking decree for permanent prohibitory injunction against defendants therein (plaintiff and defendants No. 1 & 2 in present suit) from interfering in her share and transferring the land or getting the mutation of the same attested in their favour or transferring to someone else, withdrawal of money from the bank account, interfering in plying of buses with route, disposal of buses with route or creating any hindrance to the plaintiff for applying new routes and cutting the trees etc. Defendant No. 3 has also sought declaration that will, dated 28th December, 2010 stands cancelled vide cancellation deed, dated 22nd February, 2012 and thus, mutation attested on the basis of the said Will is null and void and that Will, dated 20th June, 2013 is the last legal and valid Will of deceased-Kewal Krishan. An alternative relief for possession has also been prayed in case the defendants therein succeed to dispossess the plaintiff during pendency of suit. 25. Suit filed by defendant No. 3 is prior in time. The documents assailed and relied upon by respective parties in accordance with their interests therein are common and to prove and disprove those documents and the pleadings of the parties, witnesses required to be examined will also be common. Therefore, present plaintiff might have filed counter claim to the civil suit filed by defendant No. 3, but, he has preferred to file present suit in this Court, may be under bona fide belief, based on legal advise, for want of pecuniary jurisdiction for value of property, as claimed in the plaint, or possibility of overvaluing the suit for bringing the same in pecuniary jurisdiction of this Court can also not be ruled out. But, fact remains that in present suit also, fixed court fee was payable. But, fact remains that in present suit also, fixed court fee was payable. Considering all facts and circumstances, instead of staying the present suit, which is subsequent in time, it would be in the interest of justice to try both the suits after clubbing the same together at one place. 26. Parties to the suit at Kangra and at Shimla are identical with different status. Defendant No. 3 herein is plaintiff at Kangra whereas plaintiff and defendants No. 1 & 2 are defendants there. Plaintiff and defendant No. 1 in present suit are residents of Jammu whereas defendants No. 2 and 3 are residents of Amritsar and Kangra, respectively. Jammu and Amritsar are nearer to Kangra than Shimla. Witnesses, which would be necessary to be examined by parties, also belong to the area nearer to Kangra in comparison to Shimla. 27. The apex Court in case titled as DAV Boys Senior Secondary School and others versus DAV College Managing Committee, reported in (2010) 8 Supreme Court Cases 401, while discussing the principles for transfer of suit, has observed as under: “9. Transfer of suits under Sections 24 and 25 have been considered by this Court in various decisions. In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167 , this Court stated: (SCC p. 169, para 2) "2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case." (emphasis supplied) 10. …......... 11. In Kulwinder Kaur vs. Kandi Friends Education Trust, (2008) 3 SCC 659 , this Court considered various tests to be applied in respect of transfer of suits under Sections 24 and 25 of the Code and in para 23 observed thus: (SCC p. 664) “23. …......... 11. In Kulwinder Kaur vs. Kandi Friends Education Trust, (2008) 3 SCC 659 , this Court considered various tests to be applied in respect of transfer of suits under Sections 24 and 25 of the Code and in para 23 observed thus: (SCC p. 664) “23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; "interest of justice" demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a "fair trial" in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order.” (emphasis is original) 12. …....In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate Court. The mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Further illustrations are, balance of convenience or inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which suit is pending. The above-mentioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and order transfer in a suit or appeal or other proceedings.” 28. The above-mentioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and order transfer in a suit or appeal or other proceedings.” 28. By applying the aforesaid principles to the facts and circumstances of the present case, transferring of the case to the Court of Civil Judge (Junior Division) (II), Kangra will not have adverse impact on right of either of the parties and each of them, if occasion arises, shall be entitled to assail the same in the appellate Court, as permissible under law, and the said course will be available for either of them in case the dispute is adjudicated in the lowest Court having jurisdiction for the same. Trial of both suits, after clubbing them, will definitely save energy, time and money of both the sides and it would be easier and beneficial for both of them to complete the joint trial of both suits at Kangra. 29. In view of above discussion, it would be appropriate to transfer present suit pending in this Court to the Court of Civil Judge (Junior Division) (II), Kangra, H.P., who shall try and dispose of both the suits together in accordance with law. 30. Appearing parties through their respective counsel are directed to remain present before the trial Court on 7th August, 2018. Registry shall ensure transfer of the entire record of present suit to the said Court immediately and shall also inform the transfer of the suit to defendants No. 1 and 2 through registered post. 31. Both the applications are disposed of in above terms.