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2018 DIGILAW 606 (RAJ)

Swarn Complex Pvt. Ltd. v. Tulsi Ram Saini

2018-02-21

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT Sanjeev Prakash Sharma, J. The defendants-petitioners have filed the present writ petition challenging the order dated 19/07/2016 passed by the learned trial court whereby the application moved by them under Section 11 of the Rajasthan Court Fees and Suits Valuation Act, 1961 (hereinafter referred as 'the Act of 1961') has been rejected. 2. Learned counsel for the defendants-petitioners submits that the defendants-petitioners had moved an application under Order 7 Rule 11 CPC raising the issue relating to pecuniary jurisdiction of the concerned court as well as with regard to improper valuation of the suit. However, the same was dismissed by the learned trial court against which they filed SB Civil Writ Petition No. 158/2011 before this Court wherein this Court on 27/10/2015 passed following order:- "After hearing the learned counsels for the parties, it appears that petitioners-defendants had moved the application before the trial court under Order VII Rule 11 without there being any application filed by the petitioners seeking correction of valuation of relief claimed in the suit or supply of requisite stamp paper. At this juncture, the learned counsel Mr. S.N. Kumawat for the petitioners seeks permission to withdraw the present revision petition with liberty to file necessary application under Section 11 of the Rajasthan Court Fees & Suit Valuation Act. The learned counsel for the respondents objects against granting any liberty to the petitioners. It is needless to say that in absence of any application seeking correction of the valuation of the relief claimed in the suit or supply of requisite stamp paper, and in absence of any direction by the Court to the respondent-plaintiff in this regard, the cause of action to file application under Clause (b) or (c) of Order VII, Rule 11 would not arise. Hence, without expressing any opinion on the merits of the impugned order, the permission to withdraw the present petition as sought for is granted with the clarification that such application if filed by the petitioners-defendants shall be decided on merits by the trial court without being influenced by the impugned order passed by it. Accordingly, the petition is dismissed as withdrawn with liberty as prayed for. By this order, the stay application and other pending application if any, also stand dismissed. " 3. Accordingly, the petition is dismissed as withdrawn with liberty as prayed for. By this order, the stay application and other pending application if any, also stand dismissed. " 3. Learned counsel for the defendants-petitioners submits that in view of the observations as above, the defendants-petitioners had moved an application under Section 11 of the Act of 1961 and the learned trial court has failed to decide the same in terms of Section 11(2) of the Act of 1961 and has dismissed the application at the threshold. 4. Learned counsel for the defendants-petitioners further submits that the issue could not have been decided in a cursory manner as has been done vide order impugned 19/07/2016 and the learned trial court has failed to exercise the jurisdiction vested in it. 5. Section 11(2) of the Act of 1961 provides as under:- 11. Decision as to proper fee:- 1 .. 2. Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVII, in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908). If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not so amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit. " 6. A look of Section 11(2) of the Act of 1961, as quoted above, shows that the issue has to be decided as one of the issues of the suit and has to be decided as a preliminary one so that the further complications may not arise. 7. The Apex Court in the case of M/s Commercial Aviation and Travel Company and others Vs. Vimla Pannalal, (1988) 3 SCC 423 in this regard observed as under:- 20. 7. The Apex Court in the case of M/s Commercial Aviation and Travel Company and others Vs. Vimla Pannalal, (1988) 3 SCC 423 in this regard observed as under:- 20. In Tara Devi v. Sri Thakur Radha Krishna Maharaj, it has been laid down by this Court that in a suit for declaration with consequential relief falling under section 7(iv) (c) of the Court Fees Act, the plaintiff is free to make his own estimation of the relief sought in the plaint and such valuation both for purposes of court fee and jurisdiction has to be ordinarily accepted. Further it has been observed that it is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same. In that case, the plaintiff had valued the leasehold interest on the basis of the rent and such valuation was held to be reasonable and not demonstratively arbitrary. 21. In making the above observation, this Court has placed reliance upon its earlier decision in Meenakshisundram's case which, as noticed above, related to section 35(1) of the Tamil Nadu Court Fees and Suits Valuation Act. But one significant fact that is to be noticed in the case is that there is an objective standard of valuation, that is, the rent of the leasehold interest. It may be reiterated that when there is an objective standard of valuation, to put a valuation on the relief ignoring such objective standard, might be a demonstratively arbitrary and unreasonable valuation and the Court would be entitled to interfere in the matter. 8. Having noted above, without adverting to the merits of the issue, it would be appropriate that the order impugned dated 19/07/2016 passed by the learned trial court rejecting the application at the threshold under Section 11 of the Act of 1961 without framing specific issue is set aside. 9. Accordingly, the writ petition is allowed. The order impugned dated 19/07/2016 passed by the learned trial court is set aside and the learned trial court is directed to frame a separate issue relating to the valuation of the suit & court fees required to be paid thereto as well as pecuniary jurisdiction and decide it as a preliminary issue in the suit. The order impugned dated 19/07/2016 passed by the learned trial court is set aside and the learned trial court is directed to frame a separate issue relating to the valuation of the suit & court fees required to be paid thereto as well as pecuniary jurisdiction and decide it as a preliminary issue in the suit. It is made clear that the decision of the said preliminary issue would not in any manner prevent the learned trial court from deciding the stay application which has been filed by the plaintiff-respondent.