Delhi District Court
Smt. Usha Devi vs Smt. Rajni Chaudhary on 29 September, 2010
1
IN THE COURT OF SHRI S. K. SARVARIA DISTRICT JUDGEVIII,
DISTRICT COURTS ROHINI, DELHI
Civil Suit No. 71/10
Smt. Usha Devi,
W/o Shri Sudhir Kumar,
R/o M2/14, Mohan Park,
Model TownIII,
Delhi - 110009.
..... Plaintiff
VERSUS
Smt. Rajni Chaudhary,
W/o Shri Rahul Rathi,
R/o 268, Double Storey,
New Rajinder Nagar,
New Delhi.
..... Defendant
O R D E R
By the present order, I shall dispose off applications under Order 7 Rule 11 CPC r/w S. 151 CPC and Order 8 Rule 10 CPC.
Application under Order 7 Rule 11 CPC By this application, the defendant/ applicant seeks Usha Devi Vs. Rajni Chaudhary 2 dismissal of the suit filed by the petitioner with exemplary costs.
The contention of Ld. counsel for the applicant was that the present suit filed by the plaintiff is undervalued. It was submitted that the present suit pertains to cancellation of sale deed and as per settled law and S. 7 (iv) ( c ) of the Court Fee Act, the plaintiff is liable to pay court fees on the consideration amount of the sale deed sought to be cancelled but she has paid a meager court fee of Rs. 20/ only. The counsel also submitted that no cause of action in favour of the plaintiff is disclosed in the plaint and thus, the plaint is liable to be rejected on this ground as well. The counsel relied on decisions in Jaswant Singh vs. Smt. Surinder Kaur Kohli2009 III AD (Delhi) 270; Anil Rishi vs. Gurbaksh SinghAIR 1999 P&H 121; and Surender Arora vs. P.N. Mehta & Ors. - 71 (1998) DLT 744, in support of his contentions.
Usha Devi Vs. Rajni Chaudhary 3 On the contrary, the ld. counsel for the non applicant/plaintiff vehemently opposed the application filed under Order 7 Rule 11 CPC r/w S. 151 CPC by the applicant/defendant and has submitted that present application is nothing but a means to protract present litigation. It was urged that the present suit filed by the plaintiff has valid cause of action. It is urged that plaintiff has filed sufficient court fees and same has been paid in accordance with Sch. 2, Art. 17 (vi) of the Court Fees Act and thus, the application under Order 7 Rule 11 CPC r/w S. 151 CPC is liable to be dismissed as having no merits. It was submitted that it is well settled that when the plaintiff is in actual possession of the suit property and merely seeks cancellation of a document having been obtained by fraud etc. then the plaintiff is not required to pay ad valorem court fees and is liable to pay court fee on the declaratory relief only. The counsel relied on decision in Ori Lal vs. Mst. Rahim Zadi AIR 1940 Oudh 248; Mst. Usha Devi Vs. Rajni Chaudhary 4 Pateraji vs. Radhika Baksh Singh & Ors. - AIR 1933 Oudh 242; Gita Debi Bajoria vs. Harish Chandra Saw Mills & Ors. - AIR 1971 Cal 202 (DB) and Sabina @ Farida vs. Mohd. Abdul WasitAIR 1997 MP 25 in support of his contentions.
I have heard Ld. Counsel for the parties and perused the record.
Order 7, Rule 11 of the CPC confers powers upon a Court to reject a plaint provided it discloses any of the disabilities/jurisdictional impediments, detailed therein. It is well settled that for rejecting a plaint, the Court is not supposed to look into the defence taken up by a defendant. For the disposal of such an application, the Court has to confine itself only to the averments made in the plaint.
Usha Devi Vs. Rajni Chaudhary 5 The whole purpose of conferment of such powers of rejection of plaint under O. 7 R. 11 CPC; or the power to direct the concerned party to strike out unnecessary, scandalous frivolous or vexatious parts of the pleadings; or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law, to the Courts is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. The courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Usha Devi Vs. Rajni Chaudhary 6 court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the suit is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument, the powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. (See: Azhar Hussain v. Rajiv Gandhi, reported in 1986 (Supp) SCC 315 : (AIR 1986 SC 1253); Samar Singh v. Kedar Nath alias K. N. Singh, reported in Usha Devi Vs. Rajni Chaudhary 7 1987 (Supp) SCC 663 : (AIR 1987 SC 1926), Bhagwati Prasad Dixit v. Rajeev Gandhi (1986)4 SCC 78 : (AIR 1986 SC 1534) and Dhartipakar Madan Lal Agarwal v. Rajeev Gandhi, 1987 Supp SCC 93 : (AIR 1987 SC 1577)).
As per Order 7 Rule 11 (b) CPC, a plaint is liable to 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. Thus, to fall within the parameters of Order 7 Rule 11 (b) CPC, both things are required, firstly, that the relief claimed is undervalued and secondly, 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. But herein the latter has not come into operation as no order as regards valuation of the suit has been passed by this court. Thus, plaint cannot be rejected under Order 7 Rule 11 (b) CPC.
Usha Devi Vs. Rajni Chaudhary 8 Also, It is settled law that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. The Apex Court in the case of Neelavathi v. N. Natarajan, (1980) 2 SCC 247, made the following observations in para 6 which is reproduced as under : "6.It is settled law that the question of court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole.
(see also: vide S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Ram Ar. Rm. Ramanathan Chettiar (1958) S.C.R. 1021)"
The subject matter of the suit gathered from the plaint and the prayer therein reflect that this is a suit for the cancellation of sale Usha Devi Vs. Rajni Chaudhary 9 deed dated 19/6/2009 with a consequential relief of injunction against the defendant restraining him from taking possession of the suit premises. Considering the body of the plaint, wherein the plaintiff seeks cancellation of sale deed dated 19/6/2009 registered before the subregistrar and on perusal of Sch. 2, Art. 17 (vi) of the Court Fees Act and S. 7 (iv) ( c ) of the Court Fee Act, it is apparent that since the plaintiff was not the executants of the sale deed dated 19/6/2009 and since same was executed by the husband of the plaintiff, she cannot seek cancellation of the sale deed dated 19/6/2009 and the proper relief would be declaration that the deed is invalid, or nonest, or illegal or that it is not binding on her. In this regard recently in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. 2010 (2) RCR (Civil) 564 (C.A.NO. 281113 of 2010 decided on 29.3.2010), it was held as under:
Usha Devi Vs. Rajni Chaudhary 10
6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' two brothers. `A' executes a sale deed in favour of `C'.
Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay advalorem court fee on the consideration stated in the sale deed. If `B', who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and does not bind Usha Devi Vs. Rajni Chaudhary 11 him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.
Therefore, when executant of a deed wants a document to be annulled, he has to seek cancellation of the deed. But if a non executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or nonest or illegal or that it is not binding on Usha Devi Vs. Rajni Chaudhary 12 him. Also, if nonexecutant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay ad valorem court fee and If a non executant seeks a declaration that the deed is null & void, or nonest, or illegal or that it is not binding on him, then he has to pay fixed Court fee under Article 17 (iii) of Second Schedule of the Act.
Further, while relying on Suhrid Singh @ Sardool Singh's case (supra), it was held to the following effect in Darshan Singh and others vs. Narinder Kaur and others in C.R.No.2198 of 2010 Decided on: 27.07.2010 by the Hon'ble Punjab and Haryana High Court:
"7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "coparcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, Usha Devi Vs. Rajni Chaudhary 13 the court fee was computable under Section 7 (iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds." In view of the judgments of Hon'ble Supreme Court and of the Division Bench, the previous judgments of Single Bench on the issue of payment of court fee stand impliedly overruled. As a consequence of the aforesaid decisions, the following principles can be delineated : C.R.No.2198 of 2010 4 (i) If an executant of a document seeks cancellation of the deed, then he has to pay ad valorem Court fee on the consideration stated in the sale deed.
(ii) If a nonexecutant seeks a declaration that the deed is null & void, or nonest, or illegal or that it is not binding on him, then he has to pay fixed Court fee under Article 17 (iii) of Second Schedule of the Act.
(iii) But if a nonexecutant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also consequential relief of possession, he has to pay an ad valorem Court fee as Usha Devi Vs. Rajni Chaudhary 14 provided under Section 7 (iv)(c) read with Section 7(v) of the Act.
In the instant case, the plaintiff has claimed cancellation of sale deed without claiming possession since she is already in possession of the suit property. Plaintiff is not the executant of the sale deed. Therefore, then she has to pay fixed Court fee under Article 17 (iii) of Second Schedule of the Act and not the Court fee on the sale consideration mentioned in the sale deed. In the light of Surhid Singh's case (Supra), Surender Arora's case (Supra), Jaswant Singh's case (Supra) and Anil Rishi's case (Supra) relied upon by the ld. counsel for the defendant do not help the defendant. Thus, is unnecessary to deal with the authorities relied upon by the ld. counsel for the plaintiff.
Finally, on perusal of the plaint, the cause of action in favour of the plaintiff is present.
Usha Devi Vs. Rajni Chaudhary 15 In view of the foregoing discussion, I do not find any merit in the present application and the same is dismissed.
Application under Order 8 Rules 1 & 10 CPC By this application, the plaintiff/applicant seeks defence of the defendant to be struck off and pronouncement of judgment under Order 8 Rule 10 CPC and any other order as this court may deem fit.
The contention of Ld. counsel for the applicant was that the plaintiff filed the present suit on 8/2/2010, defendant was served with summons of the suit along with application under O. 39 R. 1 & 2 on 20/1/2010 but the defendant failed to file the written statement within 30 days as provided under Order 8 Rule 1 CPC. It was urged that the defence of the defendant to be struck off and judgment be pronounced under Order 8 Rule 10 CPC.
Usha Devi Vs. Rajni Chaudhary 16 On the contrary, the counsel for the non applicant/defendant vehemently opposed the application filed under Order 8 Rules 1 & 10 CPC r/w S. 151 CPC by the applicant/plaintiff and submitted that present application is devoid of any merits and should be dismissed forthwith. It was urged that the present application is abuse of powers of the court. It was pointed out that the delay in filing written statement is due to own fault of the plaintiff as she did not supply the copy of the CD which was part of the plaint despite oral directions having been given by the court on 22/2/2010 and has not supplied the same till date and even on 23/9/2010 when the present applications were heard by this court, the plaintiff agreed to supply the same before the next date of hearing. It was also urged that 90 days period mentioned Order 8 Rules 1 CPC is directory and not mandatory. Counsel relied on decisions in Chief Municipal Officer vs. Heeralal Singh & Ors. - AIR 2009 (NOC) 655 (Chh.); Usha Devi Vs. Rajni Chaudhary 17 Kailash vs. Nanku & Ors. - AIR 2005 SC 2441; and M/s. Trend Setters vs. NDPLAIR 2008 Del 107, in support of his contentions.
I have heard Ld. Counsel for the parties and perused the record.
While trying the suit or other actions at law the Court is not to function helplessly in the routine manner. The primary object of a Court must be to do justice between the parties according to law and where at any stage of the suit it appears that the plaintiff is entitled to the relief asked for by him on the basis of defendant's own admissions there would be no point in delaying the judgment unnecessarily with a view to decide all controversial points in the routine manner.
Also, it is no more res integra that 90 days period mentioned Order 8 Rules 1 CPC is directory and not mandatory. In the pronouncement by the Apex Court in Kailash Vs. Nanhku and Usha Devi Vs. Rajni Chaudhary 18 others, 2005(2) RCR (Civil) paged 379, the Apex Court interpreting order 8 Rule 1 CPC has explained as follows:
"Three things are clear. Firstly a careful reading of the language in which order VIII, Rule 1 has been drafted, shows that it casts an obligations on the defendant to file the written statement within 30 days from the date of service of summons upon him and within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dialtory tactics, dealing the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The Usha Devi Vs. Rajni Chaudhary 19 object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried."
The Apex Court further laid down the following law :
"Ordinarily, the time schedule prescribed by Order VIII Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extention of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The exension can be only by way of an exception and for reason assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII Usha Devi Vs. Rajni Chaudhary 20 Rule 1 of Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercise on well - settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory cots and may also insist on affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on ground which do exist.
The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, the defendant shall be permitted to seek extension of time when the Court is satisfied that it is case of laxity of gross negligence on the part of the defendant or Usha Devi Vs. Rajni Chaudhary 21 his counsels. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.
However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order VIII Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order VIII Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law."
Be that as it may, the plaintiff has also added to the delay in filing the written statement by not providing a copy of the CD, which was part of the plaint. In view of the aforesaid, the present application under O. 8 R. 1 & 10 CPC is, therefore, dismissed.
Nothing stated above shall amount to an expression of my opinion on the merit of the suit as the observations made herein are Usha Devi Vs. Rajni Chaudhary 22 tentative only and nothing stated herein shall affect the rights of the parties that are being agitated in the suit.
In view of the above discussion, the application under Order 7 Rule 11 CPC r/w S. 151 CPC is dismissed and application under Order 8 Rule 10 CPC is also dismissed. The order be sent to the server (www delhidistrictcourts.nic.in). Announced in the open court on th 29 day of September, 2010 (S.K. SARVARIA) DISTRICT JUDGEVIII ROHINI COURTS/DELHI Usha Devi Vs. Rajni Chaudhary