Delhi High Court
Anu vs Suresh Verma & Ors. on 12 July, 2011
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 12.07.2011
+ CS(OS) No.2546/2010
ANU .....Plaintiff
- versus -
SURESH VERMA & ORS. .....Defendants
Advocates who appeared in this case:
For the Plaintiff: Mr. Ravi D. Sharma, Advocate
For the Defendant: Mr. Dinesh Rohilla, Adv. for D-1
& 2.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported No
in Digest?
V.K. JAIN, J. (ORAL)
IA 4888/2011 (on b/o. defendant under Order 8 Rule 1 CPC for condonation of delay in filing the written statement)
1. This is an application by defendant No.2 for condonation of delay in filing written statement. The CS(OS)No.2546/2010 Page 1 of 11 written statement has been filed after thirty days though much before expiry of ninety days. As agreed by the learned counsel for the plaintiff, the delay in filing written statement is condoned.
2. The application stands disposed of.
IA 10693/2011 (O.7 R.11 CPC filed by D-1 & D-2)
1. This application has been filed by defendants No.1 & 2 for rejection of plaint.
2. This is a suit for partition. The plaintiff and defendants are the children of late Shri Om Prakash Verma and Smt. Chandra Wati. The case of the plaintiff is that the properties detailed in Annexure-P1 were owned by her parents and devolved on the parties to the suit, on their death. It is further alleged that the defendants No.1 & 2 are living in one of the properties, i.e. X-2302, Raghubarpura, Gandhi Nagar, Delhi, and portions of the suit property as well as the other properties have been rented out by defendants No.1 & 2 who are realizing rent of about Rs.2.5 lacs per month. It is also alleged that defendants No.1 & 2 have purchased various other properties from the rented income of the joint properties CS(OS)No.2546/2010 Page 2 of 11 and one of such properties is occupied by the plaintiff, who is deemed to be in possession of the suit properties. This is also the grievance of the plaintiff that the defendants No.1 & 2 have refused to allow her to enter the property and get a site plan prepared.
3. The contention of the learned counsel for the applicants/defendants No.1 & 2 is that since the plaintiff is not in possession of the properties alleged to be joint properties of the parties, the suit is not properly valued for the purpose of court fee and jurisdiction and, therefore, the plaint is liable to be rejected.
4. It is settled proposition of law that while considering application for rejection of plaint, the Court has to consider only the averments made in the plaint and the documents filed by the plaintiff. Defence taken by the defendant or the documents filed by him cannot be considered while deciding such an application. A Division Bench of this Court in Inspiration Clothes & U Vs. Colby International Ltd., 88 (2000) DLT 769, held that the power to reject the plaint can be exercised only if the Court comes to the conclusion that even if all the allegations are taken to be proved, the plaintiff would not be entitled to any relief CS(OS)No.2546/2010 Page 3 of 11 whatsoever. It was also observed that where the plaint is based on a document, the Court will be entitled to consider the said document also to ascertain if a cause of action is disclosed in the plaint or not though the validity of the document cannot be considered at this stage. In Avtar Singh Narula & Anr. Vs. Dharambir Sahni & Anr. 150 (2008) DLT 760 (DB), this Court reiterated that the power to reject the plaint has to be exercised sparingly and cautiously though it does have the power to reject the plaint in a proper case.
In Popat and Kotecha Property v. State Bank of India Staff Assn. 2005 7 SCC 510, Supreme Court noted that the real object of Order 7 Rule 11 of the Code of Civil Procedure is to keep irresponsible law suits out of the Courts and discard bogus and irresponsible litigation. It was further held that dispute questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 of CPC.
5. Section 8 of the Suits Valuation Act, 1887 provides that where other than those referred to in the Court-fees Act, 1870 Section 7, paragraph v, vi and ix, and paragraph x, clause (d), Court-fees are payable ad valorem under the CS(OS)No.2546/2010 Page 4 of 11 Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. Section 9 of the above- referred Act provides that when the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, Section 7, paragraph v and vi, and paragraph x, clause (d) is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the Court-fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject-matter were of such value as the High Court thinks fit to specify in this behalf.
In exercise of powers conferred by Section 9 of Suits Valuation Act, Punjab High Court made rules which are applicable to Delhi.
Suits for partition of property--
Court-fee--(a) as determined by the Court-fees Act, 1870 Value--(b) For the purpose of the Suit Valuation Act, 1887, and the Punjab Court Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the CS(OS)No.2546/2010 Page 5 of 11 Suits Valuation Act, 1887.
It would thus be seen that in view of the rules framed by Punjab High Court under Section 9 of Suits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the Court-fees Act.
Section 7(iv)(b) of Court Fees Act, provides that in a suit to enforce the right to share in any property on the ground that it is a joint family property, the amount of fee payable under Court-fee Act, shall be computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It further provides that in all such suits the plaintiff shall state the amount at which he values the relief sought by him. Article 17(vi) of Schedule II of Court-fees Act provides for payment of a fixed Court fee in a suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act.
CS(OS)No.2546/2010 Page 6 of 11
6. After examining the decision of Supreme Court in S.Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar AIR 1958 SC 245, Neelavathi & Ors. v. N. Natarajan & Ors. AIR 1980 SC 691, Jagannath Amin v. Seetharama (dead) by LRs & Ors. 2007(1) SCC 674 and Commercial Aviation and Travel Co. v. Vimla Panna Lal AIR 1988 SC 1636 this Court in CS(OS) No. 2642/2008 and IA No. 10367/2010 decided on 4th March, 2011 summarized the legal position in this regard as under:
(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed Court fee in terms of Article 17(vi) of Court-fees Act.
(iii) If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is required to claim possession and also pay ad valorem Court fee on the market value of his share in the suit property.
7. In my view, in order to constitute joint possession, it is not necessary that the plaintiff should claim to be in joint possession of each of the properties in respect of which CS(OS)No.2546/2010 Page 7 of 11 partition is sought by him/her. If she claims to be in joint possession of even one of the properties either wholly or partly, that would be sufficient to bring the case within the ambit of Article 7(iv) of Court-fees Act, because what is relevant is joint possession of the estate in respect of which partition is sought. The plaintiff is seeking partition not with respect to any one property, but with respect to all the properties which were owned by her late parents. If partition is sought in respect of more than one property and one of the co-owners possesses one property or a part of it and the other co-owners possess the remaining properties, all of them will be deemed to be in joint possession of the properties subject matter of partition. In this regard, the following observations made by this Court in Sudershan Kumar Seth vs. Pawan Kumar Seth & Ors. 124 (2005) DLT 305:
"It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the court fees shall be payable under Article 17 (6) of Schedule II of the Court fees Act i.e. fixed court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in CS(OS)No.2546/2010 Page 8 of 11 possession of any part of the properties then the plaintiff has to pay Court fees under section 7(iv)(b) of the Court fees Act i.e. on the value of plaintiff's share."
8. It does appear from para 8 of the plaint that the plaintiff has been ousted from possession of the property which according to her counsel refers to only property No. X-2302, Raghubarpura, Gandhi Nagar, Delhi. But, this is also the case of the plaintiff that one of the properties purchased from joint funds of the parties is occupied by him. That property is alleged to be property No. J-6(Ground Floor), Jyoti Nagar(West), Delhi.
9. Therefore, if the property bearing No. J-6(Ground Floor), Jyoti Nagar(West), Delhi was purchased from joint income as alleged in the plaint and the plaintiff is in possession of the aforesaid property, he will be deemed to be in joint possession along with other defendants in respect of all the properties alleged to be jointly owned by the parties and he need not claim relief of possession as independent relief and pay court fee on the market value of his share in the jointly owned properties.
10. The learned counsel for the contesting defendants state that in fact the sale deed of Jyoti Nagar property is in CS(OS)No.2546/2010 Page 9 of 11 the name of wife of defendant No.1 and a stranger namely Smt. Sushila. Since, while considering the application under Order 7 Rule 11 of CPC, the Court cannot go into the defence taken by the defendant, it is not open to the Court to go into the question of title of the aforesaid property at this stage.
11. For the reasons given in the preceding paragraphs, no ground for rejection in the plaint is made out. However, the plaintiff is directed to give value of all the joint properties for the purpose of Suit Valuation Act.
12. The plaintiff is permitted to amend para 12 of the plaint for the purpose of giving appropriate valuation under Suit Valuation Act. The amended plaint incorporating valuation for the purpose of Suit Valuation Act will be filed within two weeks.
The application stands disposed of.
CS(OS) No. 2546/2010 & IA No. 17049/2010 (u/O 39 R 1&2 CPC) The learned Counsel for the defendants No. 1 & 2 seek some time to file documents. The same be filed within two weeks. List this case before the Joint Registrar on 2 nd September, 2011 for admission/denial and before the Court CS(OS)No.2546/2010 Page 10 of 11 on 5th January, 2012 for disposal of IA. In the meantime defendants No. 1 & 2 will maintain complete accounts of the rent being realized by them from the tenants of the suit properties and shall file those accounts in the Court by next date of hearing. They will also keep aside 1/6th of the rent realized by them for the plaintiff and 1/6 th of the rent for defendants No. 3 to 5.
V.K. JAIN,J
JULY 12, 2011
Sn/vn
CS(OS)No.2546/2010 Page 11 of 11