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Madhya Pradesh High Court · body

2018 DIGILAW 267 (MP)

Ashok Kumar v. Rajendra Kumar

2018-03-07

VIVEK RUSIA

body2018
ORDER 1. The defendant has filed the present petition being aggrieved by the order dated 12.1.2016 by which application under Order 41 rule 1 of the CPC filed by him has been rejected. 2. The respondent/plaintiff has filed the suit for declaration, possession and mesne profit. He has claimed the relief that the plaintiff is entitled to take possession and do the business in the shop under the right of occupancy and the defendant be declared encroacher and restrained to do the business therein. The plaintiff and defendant are real brothers. According to the plaintiff, the Shop No. 47 was given to him by way of agreement dated 5.10.1995 by Municipal Council, Mahidpur under the right of occupation. The defendant being his brother was in difficult time, therefore, for some period, the plaintiff gave the said shop to him to do the business for some time. On 13.3.2014 when the plaintiff demanded the possession, then the defendant has declined and misbehaved with him. The plaintiff has valued the suit @ Rs. 5,000/- for the relief of declaration and Rs. 5,000/- for the relief of possession. 3. The defendant filed written statement and on the basis of pleadings, the trial Court framed the issues. The issue No. 5 was framed whether the plaintiff has properly valued the suit and paid the proper court fees. 4. The defendant filed application under Order 14 rule 1 of the CPC that the market value of the shop is Rs. 25-30 lacs and the plaintiff was required to value the suit as per the market value, therefore, the issue No. 5 be decided as a preliminary issue. 5. The learned trial Court, vide order dated 12.1.2016 has dismissed the application on the ground that the issue of valuation and payment of court-fees is a mixed question of law and facts and the same cannot be decided on the basis of oral arguments, hence, rejected the application. 6. The defendant has assailed the impugned order on the ground that the plaintiff has arbitrarily valued the suit @ Rs. 5,000/- for the relief of possession. Admittedly, the value of the shop is much more than Rs. 5.00 lacs for which, no evidence is required, hence, the trial Court has wrongly rejected the application. Hence, impugned order be set aside. 7. The plaintiff has valued the suit @ Rs. 5,000/- for the relief of possession. Admittedly, the value of the shop is much more than Rs. 5.00 lacs for which, no evidence is required, hence, the trial Court has wrongly rejected the application. Hence, impugned order be set aside. 7. The plaintiff has valued the suit @ Rs. 5,000/- for the purpose of possession on the ground that the suit shop was given to him by way of lease under the right of occupation and he deposited the lease amount of Rs. 5,000/- to the Municipal Council. 8. According to the plaintiff, he got the shop on lease on fixed amount. There is no dispute about sale, purchase, ownership or partition of shop. 9. It is settled law that the plaintiff is having liberty to value his suit but the said valuation should not be arbitrary. The plaintiff may have valid justification for valuation of suit which he will prove by way of evidence. The contention of the defendant is that the value of the property is Rs. 25-30 lacs which is also a matter of evidence as same cannot be decided by way of oral argument, therefore, the learned trial Court has rightly rejected the application. Hence, no interference is called for. 10. Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is limited. The Supreme Court in the matter of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010)8 SCC 329 , has held that High Court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. The High Court can exercise this power when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. Petition is accordingly dismissed.