Punjab-Haryana High Court
Munshi Ram And Ors. vs Harbans Lal on 13 September, 1999
Equivalent citations: (2000)124PLR436
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a defendant's appeal and has been directed against the judgment dated 15.9.1988 passed by Additional District Judge, Karnal, who set aside the judgment and decree dated 23.1.1987 passed by the Sub Judge IInd Class, Panipat, who dismissed the suit of the plaintiff-respondent on merits.
2. The brief facts of the case can be described in the following manner:-
Harbans Lal filed a suit for permanent injunction and in the alternative a suit for possession praying the defendants be restrained from interfering in his possession over the plot in question forming part of Khasra No. 1685/2 situated in village Kachrauli, Tehsil Panipat, district Karnal measuring 75 feet x 44 feet fully described in the head note of the plaint. It was alleged by the plaintiff that he was the owner in possession of the plot in question as shown with ABCD and in red colour in the site plan and that the defendants have threatened to interfere in his possession.
The suit was contested by the defendants on the plea that the plot in dispute is not the part of Khasra No. 1685/2 and that the plaintiff has no right, title or interest in the plot in dispute. The defendants also took the stand that they have become the owners of the plot in question by way of adverse possession; that the plaint is indefinite; that the defendants are owners in possession of the suit land and that the suit is not properly valued for the purposes of court-fee and jurisdiction.
During the pendency of the suit, the plaintiff filed an application under Order 6 Rule 17 C.P.C. and prayed that the suit may be treated for possession. The amendment was allowed.
From the pleadings of the parties, the trial Court framed the following issues at the first instance:-
1. Whether the plaintiff is owner and in possession of the plot in suit? OPP.
2. Whether the site in suit is a part of Khasra No. 1685/2 situated in village Kachrauli? OPP.
3. Whether the suit is not within time? OPD.
4. Relief.
Additional issues were also framed by the trial Court which were treated as issues No. 4(a), 4(b), 4(c), 4(d) and 4(e) and these issues can also be reproduced in the following manner: -
4(a) Whether the plaint is vague and indefinite, if so, to what effect? OPD. 4(b) Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD.
4(c) Whether the defendant has put kurris, raised flowers and laid foundation on some part of the suit property during the pendency of the suit, if so, on what part to what effect? OPP.
4(d) Whether the defendants are owners in possession or in the alternative have become owners by way of adverse possession? OPD.
4(e) Whether the defendants had recently unauthorised acquired some property of the plaintiff towards the south of the property in dispute, as alleged, if so, when and to what effect? OPP.
The parties led oral and documentary evidence in support of their respective cases and then issues Nos. 1, 2 and 4(a) to 4(e) were decided against the plaintiff while issue No. 3 was decided against the defendants, as a result of which the plaintiff was nonsuited.
Aggrieved by the judgment and decree of the trial Court, the plaintiff filed appeal before the court of Additional District Judge, Karnal, who allowed the appeal and set aside the judgment and decree of the trial Court for the reasons given in paras Nos. 10 to 14 of the judgment. Paras Nos. 10 to 13 can be quoted as follows:-
"10. During the pendency of the appeal an application was made on behalf of the defendants-respondents to the effect that the onus of the said issue No. 4-B was on the defendants as they now concede this issue and let the finding of the learned trial Court under the said issue be reversed in favour of the plaintiff-appellant. Reply to that application has been filed by the other side. Suffice it to say, that the matter whether the suit has been valued properly for the purpose of Court fee and whether a proper and sufficient court fee has been paid or not is essentially between the plaintiff and the State. The defendants, merely by saying that they concede the issue, cannot change the course of procedure to their convenience. It is also to be taken into consideration that counsel for plaintiff-appellant has stated at the bar that he accepts the findings of the learned trial Court under Issue No. 4-b to be correct.
11. Before proceeding further it will be profitable to note here that under issue No. 4-b learned trial court held that the plaintiff has sued for possession of the suit property as well, he was required to pay Court fee on the market value of suit property but that has not been done and the suit was valued for purpose of court fee and jurisdiction at Rs. 200/- only and the fixed Court fee of Rs. 25/- only was paid. It was held in so many words that since plaintiff has claimed the relief of possession the suit is not properly valued for the purposes of court fee and jurisdiction and the issue was decided against the plaintiff and in favour of the defendants.
12. Order 7 Rule 11 provides that where the relief claimed is under-valued 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, the plaint shall be rejected. Dismissal of the suit on merits and rejection of the plaint under Order 7 Rule 11 are entirely different things based upon different considerations. The effect of dismissal of the suit and rejection of plaint shall also be different. If a mandatory provision of law provides a procedure for a specific eventuality no deviation can be made from it to the advantage or disadvantage of any of the parties. If a party has been given the choice to get his plaint rejected by default of making good the deficiency in the court fee, it cannot be taken away from him. The contention raised by Shri Jindal learned counsel for the respondent that there was no material before the learned trial court to fix the exact market value of the suit property and that no prejudice has been caused to the plaintiff cannot hold good. He has also contended that now that the defendants concede the issue let this court reverse the findings of the learned trial Court under issue No. 4-b. I am afraid that I will be falling in the same error in which the learned trial court fell if this argument is allowed to prevail.
13. Once the learned trial court had arrived at the conclusion that the suit was not properly valued for the purpose of court fee, it was incumbent upon it to arrive at further finding as to what is the market value, what is the deficiency in the court fee paid by the plaintiff and was then to require the plaintiff to make good the deficiency in the curt fee within a period prescribed by it. If the plaintiff failed to make good the deficiency within that period or the period extended by the learned trial court the plaint was to be rejected and the trial court was not to proceed further to decide the suit on merits."
In para No. 14 of the judgment the learned Additional District Judge held as follows:-
"In the obtaining circumstances, there is no option for me but to remand the case to the learned trial court with the direction that it will decide the issue No. 4-b afresh on the basis of the material before it. The market value of the suit property shall be fixed and it shall also be specified as to what is the deficiency in the court fee paid by the plaintiff if any. The plaintiff shall then be given reasonable time which should be not exceed 10 days to make good the deficiency in the court fee and in the event of his failure to do so within the prescribed time the learned trial Court shall proceed under Order 7 Rule 11 of the Code of Civil Procedure....."
3. Aggrieved by the findings dated 15.9.1988 passed by the Court of Additional District Judge, Karnal, the present appeal by the defendants.
4. I have heard Mr. C.B. Goel, Advocate, for the appellants and with his assistance I am disposing of this appeal.
5. Order 41 Rule 23 C.P.C. lays down as follows:-
"Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it think fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand."
Admittedly, in this case the suit has not been decided on a preliminary point. Therefore, the provisions of Order 41 Rule 23 of the Code of Civil Procedure are not applicable. Now it is to be examined whether the order of the first Appellate court can be justified on the principle as contained under Order 41 Rule 23-A C.P.C. or not. In this case before passing the order it is necessary on the part of the first Appellate Court to come to the conclusion the re-trial was necessary and whether it was incumbent on the part of the Additional District Judge to set aside the findings on all the issues given by the trial Court. A reading of the order of the Additional District Judge would show that he wanted to remand the suit only on issue No. 4(b) as to whether the suit was properly valued for the purposes of court fee and jurisdiction. I will dilate in the subsequent portion of this judgment as to whether this issue could be decided by the Appellate Court at its own level or it was necessary to send the entire case to the trial Court,
6. As to whether the suit is properly valued for the purposes of court fee and jurisdiction, the civil courts are supposed to be governed by the allegations of the plaint which are very specific at the first instance when the plaintiff filed the suit for injunction and in the alternative he sought a decree for possession. The plot is denoted by a khasra number which must be assessed to the land revenue. If the plaintiff has sought the injunction, the proper Court fee was Rs. 25/- and the jurisdiction value was Rs. 200/-. If it was treated as a suit for possession, even then the Court fee was supposed to be payable 30 times of the land revenue to which the plot was assessed. The counsel for the appellants fairly concedes that the suit of the plaintiff was property valued for the purposes of court fee and jurisdiction and in these circumstances the Appellate Court at the most could decide this issue in favour of the plaintiff, but there was hardly any justification on the part of the first Appellate Court to set aside the entire judgment and decree of the trial Court and remand the case. I concur with the submissions raised by the learned counsel for the appellants. Issue No. 4(b) is decided in favour of the plaintiff as this Court is of the opinion that the suit was properly valued for the purposes of court fee and jurisdiction. The first Appellate Court ought to have examined the records of the trial Court on merits and then to give the finding whether the judgment and decree of the trial Court could be sustained or not.
7. In this view of the matter, I allow this appeal, set aside the judgment dated 15.9.1988 passed by the Additional District Judge, Karnal and remand the case to him with the directions to re-admit the appeal at its original number and decide issue No. 4(b) in favour of the plaintiff and then to hear the arguments of the parties on merits and dispose of the appeal according to law.
The appellants are directed to appear before the Court of first Additional District Judge, Panipat on 4.10.1999, who shall also issue the notice to the plaintiff before deciding the issue in question.