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2021 DIGILAW 53 (MP)

Dinesh v. Prime Town Planner Pvt. Ltd.

2021-01-20

VIVEK RUSIA

body2021
JUDGMENT : Vivek Rusia, J. Heard through video conferencing. Mr. Pankaj Kumar Sohani, learned counsel for the petitioner. Applicants/defendants have filed the present revision being aggrieved by the order dated 12/9/2020 passed by 1st Civil Judge, Class I, Khargone whereby the application filed under Order 7 Rule 11 CPC has been dismissed. Facts of the case in short are as under: 1. The respondent/plaintiff has filed the suit for a permanent injunction against the applicants/defendants. According to the plaintiffs, defendants are the owner of land Survey No. 20/1/2 area 1.923 hectare, Survey No. 20/4 area 1.012 hectare, survey No. 20/5 Area 1.011 hectare total 3.946 hectares situated at Gram Sukhpuri Tehsil Khargone (in short 'suit land'). A Development agreement dated 30/4/12 was executed between plaintiff and defendants for the development of the suit land. As per terms and conditions of the agreement, the right to sale of 30% of the developed plot was given to the defendants and right to sale plots of remaining part of the land was retained by the plaintiff. Thereafter plaintiff applied for diversion before the SDO and order of diversion was passed on 22/9/2012. Thereafter Director Town & Country Planning granted development permission on 4/6/2012. The plaintiff has completed all the development work and applied before the Collector for obtaining a completion certificate, which has been issued to the plaintiff on 22/11/2019. As per the condition of the agreement, plaintiff has paid Rs. One Crore by way of security to the defendants. As per condition No. 31 of the 12 of the agreement defendants are entitled to sale the land to the extent of 31% with the prior consent of the plaintiff, but the plaintiff came to know that the original owner of the land Dinesh, Minakshi and Aman are going to sale the plots without consent of the plaintiff, therefore, cause of action has accrued for filing the suit for a decree of the permanent injunction. The relief claimed in the plaint is reproduced below: ¼d½ ;g fd xzke lq[kiqjh] iVokjh gYdk uEcj 41] rglhy [kjxksu fLFkr Hkwfe losZ Øekad 20@1@2 jdck 1-923 gsDVs;j losZ Øekad 20@4 jdck 1-012 gsDVs;j] losZ Øekad 20@5 jdck 1-011 gsDVslj dqy jdck 3-946 gsDVs;j Hkwfe ij fodflr dkWyksuh esa foØ; ls 'ks"k jgs Hkw[k.Mksa dk varj.k Áfroknhx.k] oknh dh lgefr ds cxSj u djs] u djkos] mls vU; fdlh Ádkj ls foØ; gsrq vuqcaf/kr u djs] u djkos] mls vU; fdlh Ádkj ls foØ; gsrq vuqcaf/kr u djs] Hkkfjr u djs] cksf>r u djsa bl vk'k; dh LFkkbZ fu"ks/kkKk ÁkIr djukA ¼[k½ bl okn dk lEiw.kZ O;; Hkh oknh dks Áfroknhx.k ls fnyok;k tkosA ¼x½ vU; lgk;rk] tks ekuuh; U;k;k;y mfpr le>s og Hkh oknh dks Ánk; dh tkosA 2. After receipt of the notice the defendants admitted and filed an application under Or. 7 R. 11 CPC seeking rejection of the plaint on the ground that plaintiff has neither properly valued the suit nor paid the adequate amount of court fees therefore the suit is liable to be rejected. The defendants has also raised the issue of pecuniary jurisdiction of the civil court to decide the suit. The plaintiff filed a reply opposing the application and vide order dated 12/9/20 the Court has rejected the application, hence present revision before this court 3. Mr. Sohani, learned counsel for applicants submits that court below has erred in law while appreciating provisions of Or. 7 R. 11 CPC. The learned court has travelled beyond its jurisdiction while rejecting the application. The suit claiming relief of permanent injunction is not maintainable without seeking relief of declaration of title. Admittedly, the plaintiff is not the owner of the title and more so he is not claiming such title therefore he is not entitled to seek relief of permanent injunction, hence the suit is not maintainable. Learned counsel further submitted that market value of 3.946-hectare suit land would be in crores as the value of 1000 sq. ft. plot is Rs. 4,47,000/- therefore the plaintiff is required to value his suit as per the market value of the land to present a suit before the court having pecuniary jurisdiction. In support of his contention learned counsel has placed reliance upon the judgment passed by this Court in 2019(2) MPLJ 306. Heard and perused the record. 4. ft. plot is Rs. 4,47,000/- therefore the plaintiff is required to value his suit as per the market value of the land to present a suit before the court having pecuniary jurisdiction. In support of his contention learned counsel has placed reliance upon the judgment passed by this Court in 2019(2) MPLJ 306. Heard and perused the record. 4. The plaintiff is not claiming ownership of the suit land but approached the court with the pleadings that an agreement of development of the land was executed with the defendants according to which 31 plots are reserved for sale by the defendants but in violation of that agreement of the intending to sale the plots without the consent of the plaintiff therefore relief of permanent injunction is being sought. For the relief of permanent injunction plaintiff has valued suit Rs. 1000/- and paid fixed court Fees Rs. 500/- and for which there is no dispute. According to the defendant, the plaintiff is required to value the suit as per the market value of the land. Since the plaintiff is not claiming relief of declaration or title or possession therefore he is not required to value and pay court fees u/S. 7-V of the Court Fees Act. 5. Section 8 of the Suits Valuation Act, 1887 says that where any suit other than those referred in the Court Fees Act, 1870 the Court Fees are payable under the Court Fees Act. The value as determinable for court fees and jurisdiction shall be same. Plaintiff has valued suit Rs. 1000/- for permanent injunction and paid court fees accordingly. Therefore, the jurisdiction is liable to be decided on the basis of the value of the suit determined for computation of court fees i.e., 1000/- and for which Civil Judge, Class II is having jurisdiction to decide the suit. Since the plaintiff is only seeking an injunction against the defendants that they should not violate, alienate the suit land or enter into an agreement in violation of the agreement therefore the suit for permanent injunction is maintainable. The trial Court has not committed any error while rejecting the application. 6. Chapter VIII of the Specific Relief Act, 1963 deals with the perpetual injunction 36. Preventive relief how granted.--Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. 37. The trial Court has not committed any error while rejecting the application. 6. Chapter VIII of the Specific Relief Act, 1963 deals with the perpetual injunction 36. Preventive relief how granted.--Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. 37. Temporary and perpetual injunctions.-- (1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908). (2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. 38. Perpetual injunction when granted.-- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. 39. Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. 7. That civil court is empowered to grant relief of perpetual as well as mandatory injunction under section 36 to 39 of the Specific Relief Act, 1963. 7. That civil court is empowered to grant relief of perpetual as well as mandatory injunction under section 36 to 39 of the Specific Relief Act, 1963. The civil court is also competent to grant a temporary or perpetual injunction as the case may be in favour of the plaintiff in the civil suit when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, hence the application under Order VII rules 11 of the Civil Procedure Code is misconceived, rightly rejected by the learned court. In view of the above the, Civil Revision is dismissed without notice to another side. No order to cost.