Supreme Court - Daily Orders
Kinny Kapur . vs Gunveer Kapur . on 12 September, 2017
Bench: Arun Mishra, Mohan M. Shantanagoudar
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.885 OF 2010
KINNY KAPUR & ANR. ... APPELLANTS
VS.
GUNVEER KAPUR & ORS. ... RESPONDENTS
ORDER
1. Heard learned counsel for the appellant.
2. The payment of court fee is in issue in the appeal. The Division Bench of the High Court has ordered that the plaintiffs had themselves assessed the valuation of the suit property at Rs.45 Lakhs (Rupees Forty Five Lakhs only) and therefore they are under legal obligation to pay ad-valorem court fee on that amount. Hence, the plaintiffs are in appeal before us.
3. The bare perusal of the plaint indicates that the plaintiff severally and jointly claimed 2/9th share in the suit property. As apparent from the averments made in the plaint, they have also assessed the value of their share in the suit property at sum of Rs.10 lakhs (Rupees Ten Lakhs only), the value of the 2/9th share of the plaintiffs. Thus value of Signature Not Verified Digitally signed by SARITA PUROHIT Date: 2017.09.19 entire property comes to Rs.45 lakhs.
16:23:34 IST Reason:
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4. Learned counsel appearing on behalf of the plaintiffs-appellants submitted that the provisions of Section 7(iv) of the Court-fees Act, 1870 are applicable to enforce a right to share in joint family property and court fee has to be paid according to the amount at which the relief has been sought and valued in the plaint or memorandum of appeal. Learned counsel has also taken us to the provisions of Article 17(vi) of Schedule II of the Court-fees Act. Thus, learned counsel has submitted that at the most the court fee was payable on the valuation of Rs.10 Lakhs (Rupees Ten Lakhs only), i.e., on 2/9th share. The High Court has erred in asking payment of the court fees at Rs.45 Lakhs.
5. On the other hand, learned senior counsel appearing on behalf of the defendants contended that the plaintiffs had taken time from the Court number of times for payment of the court fee, but they ultimately did not pay it. Once they had taken time on at least 10-12 occasions, they are bound to make payment of court fee, as assured by them. Apart from that, the conduct of the plaintiffs is such that they have filed suit in London on the ground that that they do not believe in the system of justice prevailing in India. They have also filed other civil proceedings and thus, misused the process of law. Therefore, no interference is required in the order passed by the Division Bench of the High Court affirming the order passed by the learned Single Judge.
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6. After hearing learned counsel for the parties, we are of the considered view that for the purpose of determination of the court fee, the relief prayed for in the plaint has to be taken into consideration. The relief prayed for is, for partition of the joint family property and for 2/9th share of the property in question. It is not the case that the value of the 2/9th share in the property is Rs.45 Lakhs. The plaintiffs have to pay ad valorem court fee leviable according to their share in the property in question. The High Court has erred in law in asking the payment of court fee on the valuation of entire suit property, the plaintiffs are not claiming interest in the remaining 7/9th portion. As such they were not required to make the payment of court fee with respect to remaining 7/9th portion.
7. The objection raised by learned senior counsel on behalf of the respondents that on several dates the appellants sought time to make payment of court fee, as such they are not entitled for indulgence. In our opinion it would not come to the rescue of the respondents, so as to non-suit the plaintiffs on the ground of non-payment of court fees. The court fee demanded by the court was excessive than the one payable by them as per the averments made in their plaint. Since they have paid court fee of Rs.20/-, it was not proper. They were required to pay court fee ad valorem on the sum of Rs.10,00,000/- (Rupees Ten Lakhs only). Let court fee be paid ad valorem on valuation of their share, within 30 3 days from today.
8. In case court fee is not paid within the period afore-mentioned, the suit shall stand dismissed. It was argued at fag end by learned counsel for the respondents that valuation of house is not proper, it must be decided as preliminary issue. In our opinion the question should be decided along with other issues as trial has already been delayed. As question of value of house is a question of fact, it should not be decided as a preliminary issue.
9. The impugned order passed by the learned Single Judge as well as the order passed by Division bench of the High Court are set aside and the appeal is allowed. Pending application, if any, shall stand disposed of.
.............................................J. [ARUN MISHRA] ..............................................J. [MOHAN M. SHANTANAGOUDAR] New Delhi;
12th September, 2017.
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ITEM NO.110 COURT NO.10 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).885/2012
KINNY KAPUR & ANR. Appellant(s)
VERSUS
GUNVEER KAPUR & ORS. Respondent(s)
(With appln.(s) for amendment of cause title) Date : 12-09-2017 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR For Appellant(s) Mr. S.K. Bhattacharya,Adv.
Mr. Niraj Bobby Paonam,Adv.
Mr. Himanshu Gambhir,Adv.
For Ms. Sarla Chandra,AOR
For Respondent(s) In-person (Not present)
No.1
Nos.2 & 3 Mr. C.A. Sundaram,Sr.Adv.
Ms. Anuradha Dutt,Adv.
Ms. B. Vijayalakshmi Menon,AOR
Ms. Ekta Kapil,Adv.
Mr. Ayush Dhawan,Adv.
UPON hearing the counsel the Court made the following O R D E R The civil appeal is allowed in terms of the signed order. As a sequel to the above, I.A.No.2 also stands disposed of.
(Sarita purohit) (Tapan Kumar Chakraborty)
Court Master Branch Officer
(Signed order is placed on the file)
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