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2022 DIGILAW 234 (UTT)

Santosh Agarwal v. Himadari Verma

2022-07-28

SHARAD KUMAR SHARMA

body2022
JUDGMENT : The revisionist before this Court is defendant No. 3, in a Suit, being Suit No. 83 of 2013, Km. Himadari Verma & Others Vs. Shri Sunil Kumar Verma and Others. 2. The subject matter of challenge, in the present revision by the defendant/revisionist herein, is to the order dated 25th July 2019, as it has been passed by the Court of Civil Judge (Senior Division), Vikas Nagar, district Dehradun, on the amendment application of the plaintiffs/respondents herein, which has been allowed consequentially, resulting into bringing effect into the variation in the valuation of the Suit, and the subsequent order passed on it i.e. 08th August, 2019, whereby a Review Application, filed by the defendant/revisionist, was dismissed. 3. In order to answer the question, which has been raised by the learned counsel for the defendant/revisionist, it would be apt, to refer to the principal proceedings of the Suit, which had been instituted by the plaintiff/respondent herein, by filing the same before the learned Court of Civil Judge (Senior Division), Vikas Nagar, District Dehradun, in which, the plaintiffs to the Suit, had modulated the relief in relation to the property in dispute, which has been described therein at the foot of the plaint, for the purposes of declaring the plaintiff alone, as to be an exclusive owner of the property and being in possession of the same, which is lying on the 1st, 2nd & 3rd floor. Simultaneously, a prayer was also made by the plaintiff, for the grant of a decree of permanent injunction, in relation to the property, the prescients of which, were more appropriately described at the foot of the plaint, as instituted by the plaintiff /respondent on 24th October 2013. 4. This Court, at this stage, is not venturing into the merit of the matter, because, the only subject matter, which would be of consideration for this Court is the present revision, would be the decision taken by the learned trial Court, as impugned in the present revision, qua the aspect pertaining to deciding issue No. 12, in relation to the appropriate valuation of the Suit, and consequential payment of the Court fees, on that reassessed valuation. 5. 5. The defendant i.e. the revisionist herein, while denying the plaint averments, had filed a written statement before the learned trial Court, wherein, in the written statement, he had taken a plea, that the Suit was not appropriately valued and hence, it ought to be dismissed on this ground itself, which was an issue to be decided by the Court, as a preliminary issue. 6. The logic for deciding an issue of appropriate valuation, it always correlates to, that in an event, if an issue of valuation and payment of court fees is decided, to the contrary to the interest of the plaintiff, and if it affects the pecuniary jurisdiction of the Court, it ought to be rectified by the Court, while deciding an issue of valuation at the first available opportunity, so that the parties may not be forced upon to address the Court on merit, on their respective claims, and which later on while deciding the issues, pertaining to the court fees, particularly, when it resulted into a lack of pecuniary jurisdiction of the Court, to decide the matter. 7. The plaintiff in the Suit thus instituted, in fact, has assessed the valuation of the suit, in accordance with the pleadings raised in para 43, of the plaint, which is extracted hereunder:- “43. That the portion of the property in dispute at the first floor, second floor and third floor has no independent approach for the purpose of egress and ingress. However, if the said portion is rented out it can maximum fetch annual rental of a sum of Rs.60,000/-. However, if the portion of the property at ground floor is rented out it can fetch annual rent of a sum of Rs.72,000/-. Twenty times which comes to Rs. 14,40,000/-. The total valuation of the property in dispute comes to Rs.26,40,000/-. The share of the plaintiffs is 1/3rd which comes to 8,80,000/-. Plaintiffs are in possession of the premises at ground floor along with its co-owners. However, the portion of at first floor, second floor and third floor is in the exclusive possession of the plaintiffs. For the purpose of partition of the property at ground floor, first floor, second floor and third floor court fee on 1/4th of the aforesaid value that comes to Rs.2,20,000/- and court fees on this value is Rs. 16,908/-. However, the portion of at first floor, second floor and third floor is in the exclusive possession of the plaintiffs. For the purpose of partition of the property at ground floor, first floor, second floor and third floor court fee on 1/4th of the aforesaid value that comes to Rs.2,20,000/- and court fees on this value is Rs. 16,908/-. For the purpose of permanent injunction suit property is valued at Rs.26,40,000/- and maximum court fee on 1/5th value i.e. Rs.5,28,000/- is Rs. 500/-. For the purpose of relief of declaration of exclusive ownership of first floor, second floor & third floor, it is valued at Rs.12,00,000/- and maximum court fee on this value is Rs.200/- is being paid. The total valuation comes to Rs.26,40,000/- + Rs.5,28,000/- + 12,00,000/- Rs.43,68,000/- and total court fees payable is Rs.17,608/- and the same has been paid.” 8. Accordingly, based on the valuation, as it was assessed by the plaintiff, the court fee was remitted, as it has been referred to in para 43, already extracted above. In the written statement, thus submitted by the defendants including defendant No. 3, the pleadings which were raised in para 43, pertaining to the valuation of the suit, has been denied by the defendants/revisionists, in para 41 of the their written statement, where, they have come up with the case, that the valuation of the property, based on the municipal assessment, is too hypothetical without any basis and is too low, and the proportionate assessment cannot be taken as the basis for valuation of the suit, as the property has been agreed to be sold on a total consideration of Rs. 50.00 lakh. 9. In fact, the pleadings of para 41 of the written statement, where the reply has been extended to para 43 of the plaint, pertaining to the appropriate valuation of the suit, it is only a hypothetical view or the objection which had been taken by the respondent, with regard to the probable sale consideration, which the disputed property would have fetched, based on an agreement to sale, in case, if it is ventured into for dealing the property, in any manner, whatsoever. This hypothetical assessment based upon an expected sale consideration based on agreement for sale or sale consideration, which could have fetched, the objection pertaining to the municipal assessment and the valuation made on the basis of annual rent payable on it, which were the subject matter, decided by the learned trial Court, while deciding issue No. 12. 10. The learned trial Court, by the impugned order dated 25th July 2019, while deciding issue No. 12, has observed, that the claim, which was raised in the suit, was limited to in relation to the share of the property, which was to be falling under the share of Mr. Sushil Kumar Verma, and the property, which would have otherwise stood divested, as per as the rights flowing from Dr. Atar Singh Verma, who was appointed as a guardian. But, ultimately, may be for whatsoever reasons, the learned trial Court, vide its order dated 12th April 2019, has recorded its finding in para 5 of the judgment, that the disputed property, since being an abadi, the Court fees, which would be payable on the same, as per the Suit Valuation Act, particularly, that as contained under Section 7(VI-A), since it relates to the division of a property, the valuation of the suit was assessed, on the basis of the implications of Section 7(VI-A) of the Suit Valuation Act. 11. This judgment of 12th April 2019, was subsequently made as a subject matter of scrutiny, while deciding paper No. 102(ka), which was preferred by the defendants/revisionist, as against the order dated 25th July 2019, seeking its review. In fact, if the principle order, which was sought to be reviewed i.e. dated 25th July 2019. The defendants to the suit, in his application paper No. 96(ka), had questioned the aspect of valuation and if the amendment of the valuation as made to Rs. 4,11,000/- in place of Rs. 4,36,800/- it was assessed on the basis of the rental value of the property and hence the defendants’ application paper No. 96 (ka) was accepted for the purposes of amendment in the valuation of the suit from Rs. 4,11,600/- to Rs. 4,36,800/-. This judgment was sought to be reviewed by the respondent, which has been rejected by the order dated 8th August 2019. 12. 4,11,600/- to Rs. 4,36,800/-. This judgment was sought to be reviewed by the respondent, which has been rejected by the order dated 8th August 2019. 12. There are various faceted arguments, which had been extended by the learned counsel for the defendant/revisionist, qua the amendment, which was carried by the plaintiff in relation to the valuation of the suit based on the order dated 12th April 2019. 13. Under either of the circumstances, if the principal valuation of the suit i.e. Rs. 4,11,600/-, which has been sought to be amended, in the light of the impugned order of the trial Court deciding issue No. 12, vide its judgment dated 12th April 2019, by changing its valuation to Rs. 4,36,800/- is concerned, then too in the light of the provisions contained under Section 7(VI-A) of the Suit Valuation Act, this Court is of the opinion, that either because of the impact of order dated 12th April 2019, deciding issue No. 12 or the consequential amendment sought by the plaintiff by filing an application paper No. 96 (ka1), for carrying out the necessary amendment in the valuation of the suit based upon the order dated 12th April 2019, was well within the scope of the directives, issued by the learned Court below, in its order dated 12th April 2019, for valuation of the suit. Hence, on the basis of allowing of an amendment, limited for the purpose of valuing the suit by enhancement of its valuation while allowing paper No. 96 (ka), it will not at all prejudice any of the rights of the defendants, in any manner, whatsoever, because it needs no reference that an issue of court fee or valuation of a suit would exclusively fall to be within the domain of consideration between the Court and the plaintiff, who is before the Court, for the purposes of redressal of his grievances, qua the relief claimed therein in the suit. 14. 14. The challenge given by the revisionist to the amended order dated 25th July 2019, would not be a scope, which could be available to the revisionist, in the exercise of powers, of this Court under Section 115 of the Code of Civil Procedure, for the reason being, that the order of amendment dated 25th July 2019, in any manner, will not at all fall to be a subject matter, which could be revisable under Section 115 of the Code of Civil Procedure, because the permission of an amendment, in the valuation, will not result into providing an order dated 25th July 2019 a finality, as to be giving a status of a ‘case decided’. Coupled with the fact, that the valuation, since as already observed above, is only an issue between the plaintiff and the Court, and particularly, in the facts and circumstances of the present case, where the proposed amendment in the valuation, was not resulting into any alteration or change in the pecuniary jurisdiction of the Court, who was ceased with the Suit No. 83 of 2013, the defendants could not have any right, as such, to put a challenge to the order dated 25th July 2019, particularly, when it was, as a consequence of the implications of the judgment dated 12th April 2019, deciding issue No. 12. 15. This controversy could be looked into from yet another perspective. The application preferred by the plaintiff, was in consonance to the order dated 12th April 2019, deciding issue No. 12, pertaining to the valuation of the Suit. The judgment and order dated 12th April 2019, where the direction was issued to the plaintiff, to ensure the appropriate valuation of the suit as per the provisions contained under the Court Fees Act, the order dated 12th April 2019, since it was not subjected to challenge by the defendants, in any other proceedings it would attain finality qua the defendants. 16. In that eventuality, allowing of an amendment, would only be in furtherance of deciding issue No. 12, and the decision of 25th April 2019, itself, cannot be construed to be a decision of valuation of a suit, deciding issue No. 12, to enable him to sustain his revision before this Court. 17. 16. In that eventuality, allowing of an amendment, would only be in furtherance of deciding issue No. 12, and the decision of 25th April 2019, itself, cannot be construed to be a decision of valuation of a suit, deciding issue No. 12, to enable him to sustain his revision before this Court. 17. This Court is of the view, that since the order passed on an amendment application of the plaintiff was nothing, but a consequential compliance of an order dated 12th April 2019, and being an order, which is of an interlocutory in nature, not resulting into a determination of a right interse between the parties or a lis itself, it cannot be subjected to a review, as it had been filed by the defendants being paper No. 102, which was rejected by an order dated 8th August 2019. Hence, in view of the orders, which are put to challenge, this Court is of the view, that it will not at all would, be which would fall to be a subject matter of consideration, under Section 115 of the Code of Civil Procedure, making it revisable by this Court. 18. The learned counsel for the revisionist, in support of his contention, though in compliance of the orders passed by the Court, to file a written submission, has filed written submissions and particularly, he has asserted upon certain judgments, on which he relies upon, as reported in 1967 SCC OnLine All 210, Rama Shanker Tiwari Vs. Mahadeo and others. 19. The Full Bench of Allahabad High Court, when it was dealing with the question, which was there referred before it, it was as to whether a Revision would lie from an order, refusing to allow an amendment of a pleading under Order 6 Rule 17 of the CPC? It was this question, which was referred to be decided. 19. The Full Bench of Allahabad High Court, when it was dealing with the question, which was there referred before it, it was as to whether a Revision would lie from an order, refusing to allow an amendment of a pleading under Order 6 Rule 17 of the CPC? It was this question, which was referred to be decided. This Court is of a considered view, that the implications of the question, as referred to be answered by the Full Bench of Allahabad High Court, in the said judgment, it will not have much relevance, for its consideration under the changed scenario, where subsequently the law has undergone, a change in relation to the exercise of its ambit of revisional jurisdiction by the Court, particularly, in view of the amendment carried in the Code of Civil Procedure by way of Act No. 104 of 1976, and that too, furthermore, because of an amendment, which was made by way of an insertion by an Act No. 46 of 1999, whereby, the limitations of exercise of the revisional jurisdiction, was confined within the parameters, which have been provided therein, by virtue of the subsequent insertions made, by way of Act No. 46 of 1999. 20. Not even that, the effect of insertion, by way of an amendment under Section 115 of the Code of Civil Procedure, as carried on w.e.f. 1st July 2002, which was even thereafter subsequently amended by the State of Uttarakhand, as Uttarakhand amendment, by Act No. 1 of 2006, hence, under the changed implications of law of revision the exercise of revisional jurisdiction, the Full Bench judgment of Allahaad High Court in Rama Shanker Tiwari (supra), which was confined to the exercise of revisional powers as against allowing or rejection of an amendment application, would be limited to its consideration, pertaining to the law prevalent at that point of time, with regard to the amendment at the time when the Full Bench was ceased with the decision on the said issue. 21. Another judgment, which has been relied by the learned counsel for the revisionist is that of in the matters of Dattaram V. Dharwadhar another Vs. 21. Another judgment, which has been relied by the learned counsel for the revisionist is that of in the matters of Dattaram V. Dharwadhar another Vs. Ghanashyam G. Bhende another, reported in 2002 (6) BomCR 105 , rendered by the Bombay High Court (Panaji Bench), where the Bombay High Court, was considering the impact of Section 115 of C.P.C. in the context of Order 6 Rule 17, where it has been laid down that a revision, against allowing of an amendment would be sustainable, particularly, when it was passed in the exercise of its discriminatory jurisdiction of the Court, it was observed that rather the High Court should not disturb the findings recorded on the amendment application. 22. With all due reverences at my command, this Court is of the view, that if the factual backdrop of the said case are taken into consideration, apart from the fact, that it will have a different bearing, owing to the state amendment, as applicable to the State of Uttarakhand, it was exclusively confined, where an amendment was preferred by the parties to the proceedings, in the pleadings, and its consequential maintainability of a revision against it. This would not be an issue, directly in nexuses to the controversy at hand, because here, filing of an amendment by the plaintiff/respondent i.e. paper No. 96 (ka), was nothing, but only in furtherance of the compliance of the earlier decision rendered on issue No. 12, by the trial Court on 12th April 2019. Hence, the application paper No. 96 (ka1), cannot be said to be exclusively an application under Order 6 Rule 17, filed by the plaintiff in his exclusive exercise of his rights conferred under Order 6 Rule 17, but, rather, it was an application filed in compliance of a judicial adjudication made by the Court on issue No. 12, which, in itself, in its concluding part of the judgment/order, had permitted the plaintiff, to file an amendment, to carry out the necessary amendment in the valuation of the suit itself. Hence, the application filed under Order 6 Rule 17, herein, since being in the light of the judgment dated 12th April 2019, it cannot be treated as to be an exclusive application, which has been preferred at the choice of the plaintiff, to bring about the amendment in the valuation clause of the suit. Hence, the application filed under Order 6 Rule 17, herein, since being in the light of the judgment dated 12th April 2019, it cannot be treated as to be an exclusive application, which has been preferred at the choice of the plaintiff, to bring about the amendment in the valuation clause of the suit. Hence, it would not be a principle, which could be drawn to be attracted in the instant case. 23. The learned counsel for the revisionist had challenged the impugned orders of allowing the amendment in the valuation clause, on the ground, that it happens to be in contradiction to one another. In fact, the reference, which has been made by the learned counsel for the revisionist, is to the judgment, as reported in 2011 (5) SCC 305 , State of U.P. and Ors. Vs. Hirendra Pal Singh etc, if the said judgment too is taken into consideration, this Court is of the view, that a ratio decided by a Superior Court, has not to be invariably made applicable, under all set of facts and circumstances of the case, particularly, settlement of a law will always dependent upon the factual backdrop of each case, which was the subject matter of consideration before the Court. The judgment referred to in the matters of State of U.P. and Ors. Vs. Hirendra Pal Singh etc (supra), since it related to the issue decided pertaining to the law, as then applicable in a service jurisprudence, and not under a strict literal sense of a civil case, and that too, even for the time being, if it is accepted that a contradiction in an order, which may have a bearing over the proceedings, that could only be a subject matter, when the consequential effect of contradiction effects a right of the parties to the proceeding. 24. In the said case, since there were two interim orders, which were the subject matter of scrutiny before the Hon’ble Apex Court, relating to a service matter, as an effect of U.P. Legal Remembrancer’s Manual, it will have no effect at all, with regard to the factors of consideration in the present case pertaining to issue No. 12, which relates to the decision rendered on issue No. 12, pertaining to the valuation of the Suit. 25. 25. Another judgment, on which the reference has been made by the learned counsel for the revisionist is, that as reported in 2011 SCC OnLine HP 5915, M/s Pearl Enterprises and another Vs. Union of India and others, wherein the Division Bench of the Himachal Pradesh High Court, was yet again ceased with the judgment, which was passed at an interim stage as an aspect, which was determining the legal propriety and judicial discipline, for maintaining unanimity in an interlocutory orders, passed by the Court. The principle of unanimous decision, to be taken by the Court in a pending proceeding, was in the context when it was affecting the rights of a person on merit of the matter, and it was not confined to a right between the Court and the plaintiff, in relation to the determination of the Court fees. 26. If there happens to be a minor contradiction, then too, under the provision of the Suit Valuation Act and the Court Fees Act, which has to be read in conjunction, at a later stage, even the Court comes to a conclusion, that the suit was deficiently valued, the same could be imposed upon the plaintiff, while putting an execution to the decree to be rendered in his favour. But, that may not be a case, which would entail consideration in the instant case, because here, the issue No. 12, has already been decided by the judgment dated 12th April 2019, which has attained finality. Without a challenge given to it, the revisionist could not have put a challenge to the consequential amendment permitted to be carried by one of the impugned orders, which is under challenge, coupled with the fact, that the revision, as against the interlocutory order of allowing the amendment application, qua the valuation of the suit would not be maintainable, unless it affect the jurisdiction of the Court. 27. The revision is, accordingly not sustainable in the eyes of law, since being beyond the purview of the provisions contained under Section 115 of the Code of Civil Procedure, to be read in correlation to the amendment under Section 115, as carried by the State of Uttarakhand. The revision lacks merit and the same is hereby dismissed.