Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 882 (RAJ)

Islaudeen v. Shanti Lal Singhvi

2018-04-03

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. The petitioner has preferred this writ petition for the following relief’s :- "(i) by an appropriate writ, order or direction, the impugned order dated 16.03.2018 (Annex.4) passed by Civil Judge, City North Udaipur in Civil Suit No. 197/2015 to the extent of allowing the application under Order 7, Rule 11 (b) read with Section 7, 10, 11 & 26(a) of the Rajasthan Court Fees and Valuation Act, 1961 may kindly be quashed and set aside and consequently the application in this regard preferred by the respondent no.1 may kindly be rejected with costs. (ii) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner." (iii) writ petition filed by the petitioner may kindly be allowed with costs." 2. The instant writ petition has been filed by the petitioner assailing validity and correctness of order dated 16.3.2018 (Annex.4) passed by Civil Judge City North, Udaipur whereby the application under Order 7, Rule 11(b) of CPC read with Section 7, 10, 11 & 26(a) of the Rajasthan Court Fees and Valuation Act, 1961 preferred by the respondent no.1/defendant has been accepted and a direction has been issued to the plaintiff to determine appropriate valuation of suit and compute and pay the court-fees within fifteen days from the date of passing of order otherwise the suit shall stand rejected. 3. Counsel for the petitioner argued that his prayer of the plaint does not amount to averment pertaining to denial of his title to the property in-question. Counsel for the petitioner further averred that Section 27(c) of the Rajasthan Court Fees and Suit Valuation act, 1961 will apply in his present case. Counsel for the petitioner to strengthen his argument cited precedent law of this Court in the matter of Jugal Kishore v. Bankat Lal & Ors., reported in DNJ (Raj.) 1996 page 739, relevant portion whereof reads as follows : "13. I have considered the arguments. Wherever a Court is called upon to examine the question of adequacy of Court fees, it must be considered with reference to the allegations as laid in the plaint and not with reference to the case as set-up by the defendants. I have considered the arguments. Wherever a Court is called upon to examine the question of adequacy of Court fees, it must be considered with reference to the allegations as laid in the plaint and not with reference to the case as set-up by the defendants. For this, the substance and nature of the claim of the plaintiff with reference to the averments made therein must be ascertained and then the appropriate provisions of the Act must be applied for ascertaining whether the proper Court fees has been paid or not. I have examined the plaints in both the cases. While narrating the facts of the cases, I have quoted the relief paras of the plaints. In 611/95 also the facts are not different. The plaintiff alleged that the plaintiffs and other members of a joint family owned certain property. The disputed property has been denoted by letters A, B, C & D. The plaintiff claimed physical possession over this piece of land came to the share of Shri Ganpat Lal and Smt. Ayodhya Devi W/o. Shri Ganpat Lal, sold the above land to the family of the plaintiff. The plaintiff also constructed a boundary over the above plot with the permission of the Gram Panchayat in the year 1961. He, therefore, alleged that the defendant was making efforts to grab the above land and with this object in view placed certain stones and also damaged the main door. The plaintiff, therefore, sought permanent injunction restraining the defendant from interfering with his possession and also for mandatory injunction asking the defendant to remove the stones and repair the damage done to the main door. From the above averments it is clear that the plaintiff only claimed relief of permanent as well as mandatory injunction claiming his own possession. A scrutiny of the whole plaint would also lead to the same conclusion. Hence, the learned appellate Court has correctly held that the plaintiff has paid Court fees in accordance with the provisions of the Act and the order of the learned trial court was illegal and passed with material irregularity. I, therefore, find no force in the revision petitions and they are hereby dismissed." Counsel for the petitioner further relied upon the decision of Hon'ble Supreme Court rendered in the case of Muktar Steels (P) Ltd. Co. I, therefore, find no force in the revision petitions and they are hereby dismissed." Counsel for the petitioner further relied upon the decision of Hon'ble Supreme Court rendered in the case of Muktar Steels (P) Ltd. Co. v. Hind Ro-Rolling Industries Ltd., reported in (2005) 11 SCC 399 , relevant portion whereof reads as follows : "3. We have gone through the contents of the order of the learned Single Judge and we have also seen the memo of revision petition. The prayer made by the petitioner in the revision petition against demand of ad valorem court fee on the abovementioned amount, has clearly been allowed. It is also clear from the cents of the order of the learned Single Judge (quoted above) that he has construed the pleadings in the plaint to mean that there is a mention of the aforesaid amount as having been paid by the plaintiff on behalf of the defendant and the said amount having not been returned, the plaintiff is entitled to remain in undisturbed possession of the leased property. After reading the entire order and the prayer made in the memo of revision petition, it is clear to us that the decision of the learned Single Judge is that no ad valorem court fee is payable on the aforesaid amount as no relief of recovery of the said amount has been claimed. Clearly no monetary decree has been sought by the plaintiff in the suit. In such circumstances, in the underlined portion of the order of the learned Single Judge (quoted above), there seems to be clearly omission of the word "not" in the two sentences. This mistake or omission in the order of the learned single Judge made it necessary for the appellant to approach for necessary correction by the application under section 151 CPC to the Court. Review petition could have been filed for the purpose but the appellant filed the application under section 151 CPC. 4. Counsel for the respondent, however, refuted the submission and stated that on bare reading of plaint, particularly, para-7, it is clear that denial of title is there. Review petition could have been filed for the purpose but the appellant filed the application under section 151 CPC. 4. Counsel for the respondent, however, refuted the submission and stated that on bare reading of plaint, particularly, para-7, it is clear that denial of title is there. Para-4 and para-7 of the civil suit (Annex.1) is quoted as follows :- 4 ¼pkj½ ;g fd mDr lEifr dks fodz; fd;s tkrs le; izfroknh la0 1 ¼,d½ us lEifr dk HkkSfrd dCtk oknh dks lqiqnZ fd;k ftl ij oknh us ykxr yxkdj lEifr dks ,d :i dj pkj fnokjh vkfn dk fuekZ.k djok;k x;kA mDr Hkwfe uxj fuxe {ks= esa gksus ls mDr lEifr ij vU; yksx Hkh dkfct gksus ds iz;kljr jgrs gSA izfroknh la0 ¼1½ ,d Hkh oknh dh mDr lEifr ij dkfct gksus dks iz;kljr gSA izfroknh la0 2 ¼nks½ us mDr lEifr ds lEcU/k esa QthZ o tkyh nLrkost cukdj Hkwfe ij dCtk djus dk iz;kl dj jgk gSA izfroknh la0 2 ¼nks½ dh oknh dh Hkwfe ij vkoktkgh fujUrj c<+rh tk jgh gS vkSj vkl iM+ksl ds mDr tehu dks izfroknh la0 2 ¼nks½ }kjk Lo;a dk gksuk crk jgk gSA izfroknh la0 2 ¼nks½ }kjk mDr lEifr ij dCtk djus dh fu;r ls jsrh] iRFkj vkfn Hkh M+yok fn;s gS ftldk dh izfroknh la0 2 ¼nks½ dks drbZ dksbZ vf/kdkj ugha gSA 7 ¼lkr½ ;g fd oknh }kjk izfroknh la0 2 ¼nks½ dks fnuakd 25-07-2015 iPphl tqykbZ nks gtkj iUnzg dks tehu ij vkoktkgh djus ls bUdkj fd;k ftl ij izfroknh la0 2 ¼nks½ us QthZ nLrkost fn[kkdj vkoktkgh can djus ls bUdkj dj fn;k vkSj oknh ls yM+kbZ >xM+k djus dks vkeknk gqvkA bl dkj.k okn dkj.k fnuakd 25-07-2015 iPphl tqykbZ nks gtkj iUnzg dks izkjEHk gksdj vuojr tkjh gSA Learned counsel for the respondent relied upon the judgment of this Court Vijay Kumar & Ors. v. Mst. Shakuntala Devi & Ors. reported in 1984 RLR 1005 , relevant portion whereof reads as follows : 9. From the averments made in the plaint, it is clear that the plaintiffs have sought relief in respect of a 'chowk' which is an immovable property. It is abundantly clear from the various allegations made in the plaint and in particular para-7 that the defendants have claimed their ownership over the land in-question which according to the plaintiffs is wrong and baseless. This constitutes denial of the plaintiffs' title. It is abundantly clear from the various allegations made in the plaint and in particular para-7 that the defendants have claimed their ownership over the land in-question which according to the plaintiffs is wrong and baseless. This constitutes denial of the plaintiffs' title. From the averments made in paras 4 and 7 and having regard to the relief’s sought by the plaintiff it can safely be inferred that whatever title the plaintiffs have claimed in respect of the land in question that was denied by the defendants. Section 26(a) of the Act is attracted which when the relief of injunction is with respect to the immovable property and where the plaintiffs alleges that his title to the property has been denied by the defendants. In such a situation, the court-fee payable is on one half of the market value of the property or on Rs. 300/- whichever is higher. The learned Civil Judge, as stated above, on the evidence of the parties, found that the market value of the 'chowk' is Rs. 16,750/- and one half of it is Rs. 8375/- and court-fee is payable on this valuation. It is not in dispute that if this is the valuation for the purpose of payment of court-fee, then the valuation for the purpose of jurisdiction is also the same vide Section 48 read with Section 7 of the Act. A suit which if valued at Rs. 8375/- cannot be entertained, tried and heard by a Munsif as admittedly in this case he can take cognizance of the suit valued upto Rs. 5000/-. Section 26(a) and Section 26(c) of the Rajasthan Court Fees and Valuation Act, 1961 reads as follows : 26. Suits for injunction. - In a suit for injunction - (a) where the relief sought is with reference to any immovable property, and where the plaintiff alleges that his title to the property is denied, fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher; (b) ....... ....................................................................................... (c) in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher. 5. ....................................................................................... (c) in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher. 5. After hearing learned counsel for the parties, perusing record and precedent law, this Court is of the opinion that on a bare reading of the plaint, the plaintiff has infact made averments in para-4 & 7 that defendants to have claimed their ownership over the land in-question was wrong and baseless. This constitutes denial of plaintiff's title and, therefore, the impugned order bringing the petition under the purview of Section 26(a) of the Rajasthan Court Fees and Valuation Act, 1961 is correct. The legislative intention of Section 26 of the suit seeking injunction with reference to any immovable property, and where the plaintiff alleges that his title to the property is denied is formed in the present case. Thus, in light of both the ingredients of Section 26(a) being made out as the property is immovable and the defendants as per plaintiff have claimed ownership over the land in-question, which is wrong and baseless as per plaint falls within the purview of Section 26(a). Hence, no interference is called for. The writ petition is dismissed. However, the time given by the learned court below is further extended to 15 days from the date of receipt of certified copy of this order.