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Madhya Pradesh High Court · body

2024 DIGILAW 507 (MP)

Suresh Chand v. Shiv Vishal Through LRs. & Others

2024-07-18

DWARKADHISH BANSAL

body2024
JUDGMENT 1. This first appeal has been preferred by appellant/plaintiff challenging the order dated 12.7.2000 passed by 2nd Additional District Judge, Shahdol, in Civil Suit No.8-A/1989, whereby plaintiff’s suit has been dismissed for want of compliance of order dated 30.10.1999. 2. Short facts of the case are that the plaintiff Suresh Kumar instituted a suit for declaring the sale deed dated 24.7.1971 to be null and void and recovery of possession of the suit property as well as for declaring the subsequent sale deeds executed by defendant 1 in favour of defendants 12-18. On basis of consideration mentioned in the sale deed dated 24.7.1971 and on basis of twenty times of land revenue,the plaintiff valued the suit for the relief(s) claimed in the plaint and paid requisite court fee as described in paragraph 35 of the plaint. 3. Upon filing written statement by defendant(s), trial Court framed issues and proceeded furtherto record evidence of the parties, but during pendency of suit and incompliance of order dated 24.3.1998 passed by this Court in C.R. No.669/1998, trial Court proceeded to decide issue No.11 as preliminary issue and after hearing arguments of the parties, decided the same against the plaintiff, vide order dated 30.10.1999 by holding that the plaintiff has not paid requisite Court fee on the valuation of Rs.22,000/- and for other relief(s) and directed the plaintiff to amend the plaint putting valuation on the basis of market value and then to pay Court fee thereon,however trial Court did not determine any valuationor court fee payable by the plaintiff. 4. In pursuance of direction contained in paragraph 17 of the order dated 30.10.1999, the plaintiff filed an application proposing amendment in plaint regarding valuation and payment of Court fee and on valuation of Rs.22,000/- paid Court fee of Rs.2330/- on 03.12.1999 and also shown willingness to pay court fee according to the valuation made in the plaint, but the application for amendment was rejected by trial Court vide order dated 4.1.2000, which was challenged before the High Court by filing C.R. No.182/2000, however by the time civil revision rendered infructuousbecause of passing of final order dt. 12.7.2000by trial Court dismissing the suit. 5. Learned counsel for the plaintiff submits that according to plaint averments and the relief claimed therein, the plaintiff rightly and properly valued the suit and paid requisite court fee and upon passing the order dtd. 12.7.2000by trial Court dismissing the suit. 5. Learned counsel for the plaintiff submits that according to plaint averments and the relief claimed therein, the plaintiff rightly and properly valued the suit and paid requisite court fee and upon passing the order dtd. 30.10.1999 on preliminary issue No.11, the plaintiff proposed amendment in the plaint regarding valuation and payment of court fee and also paid Court fee amount of Rs.2,330/-, but trial Court committed illegality in dismissing the application for amendment under Order 6 rule 17 CPC and even at the time of rejection of application, trial Court did notdetermine/specify the valuation and payment of court fee. 6. In support of her submissions learned counsel placed reliance on the decision of Hon’ble Supreme Court in the case of M/s. Commercial Aviation and Travel Company and others v. Mrs. Vimla Pannalal AIR 1988 SC 1636 and submits that trial Court was not correct in dismissing the suit, that toowithout final determination of valuation and Court fee. With these submissions learned counsel prays for setting aside the impugned order. 7. Learned counsel appearing for LRs of respondent 1 supports the impugned order and prays for dismissal of the appeal, with the further submissions that after passing of order dated 30.10.1999, the plaintiff was given several opportunities to comply the order dated 30.10.1999 and upon failure of the plaintiff, the suit has rightly been dismissed. With these submissions he prays for dismissal of the first appeal. 8. Heard learned counsel for the parties and perused the record. 9. Perusal of order dated 30.10.1999 shows that although trial Court has found that valuationput by the plaintiff is not proper and consequentlyit directed the plaintiff to value the suit as per market value and then to pay Court fee by proposing amendment in the plaint and also directed to pay advalorem Court fee on the amount of Rs.22,000/-, but trial court has notspecified any valuation and amount of Court fee payable by the plaintiff. 10. 10. Apparently, as per direction contained in paragraph 17 of order dated 30.10.1999, the plaintiff moved an application for amendment clarifying the existing valuationof plaint and court fee, but this application was dismissed on 4.10.2000 and even at that time, trial Court did not direct the plaintiff to value the suit for specific amount and to pay specific amount of court fee, meaning thereby, trial Court neither determined the valuation of suit nor Court fee. Hence, in my considered opinion, in absence of determination of valuation of suit and court fee, trial Court had no jurisdiction to dismiss the suit, for want of proper valuation and payment of Court fee. 11. In the case of M/s. Commercial Aviation and Travel Company (supra), Hon’ble Supreme Court has held as under:- “9. In this connection, we may refer to the provision of Order VII, Rule 11 (b) of the Code of Civil Procedure, which provides, inter alia, that the plaint shall be rejected where the relief claimed is undervalued and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the Court, fails to do so. It is manifestly clear from the provision of Order VII, rule 11(b) that a Court has to come to a finding that the relief claimed has been undervalued, which necessarily means that the Court is able to decide and specify proper and correct valuation of the relief and, after determination of the correct value of the relief, requires the plaintiff to correct his valuation within a time to be fixed by the Court. If the plaintiff does not correct the valuation within the time allowed, the plaint is liable to be rejected. The question is whether in a suit for accounts simpliciter, the court can come to a finding as to the proper and correct value of the relief until the final determination is made. In our opinion, ordinarily it is not possible for the Court at a preliminary stage to determine the value of the relief in a suit for accounts simpliciter. If the court is itself unable to say what the correct valuation of the relief is, it cannot require the plaintiff to correct the valuation that has been made by him. In our opinion, ordinarily it is not possible for the Court at a preliminary stage to determine the value of the relief in a suit for accounts simpliciter. If the court is itself unable to say what the correct valuation of the relief is, it cannot require the plaintiff to correct the valuation that has been made by him. Indeed, in a suit for accounts it is also difficult for the court to come to a finding even as to the approximate correct valuation of the relief. In such a case, the court has no other alternative than to accept plaintiff's valuation tentatively”. 12. It is also apparent from the record that trial Court after framing issues proceeded further to record evidence in the suit, but in the light of order passed by this Court in C.R. No.669/1998 proceeded to decide the issue No.11 as preliminary issue. In my considered opinion, the issue No.11 required evidence, hence ought to have been decided along with other issues, which is also the intention of provision contained in Order 14 rule 2 CPC as well as of decision given by Hon’ble Supreme Court in the case of M/s. Commercial Aviation and Travel Company (supra). 13. In view of the aforesaid discussion and in my considered opinion, impugned order dismissing the civil suit does not appear to be sustainable, resultantly by setting aside the impugned orders dated 12.7.2000 & 30.10.1999, case is remanded to trial Court for decision of civil suit afresh in accordance with law after restoring it to its original number. 14. It is hereby made clear that irrespective of order passed by this Court in C.R. No.669/1998, issue no.11 shall be decided afresh along with other issues at the time of final adjudication of the civil suit. 15. Both the parties are directed to appear before trial Court on 20.8.2024. At the same time registry is also directed to send back the record of trial Court, immediately. 16. Misc. application(s), pending if any, shall stand closed.