Delhi District Court
Sh. Iqbal Singh vs Sh. Avtar Singh & Ors on 24 November, 2011
IN THE COURT OF SH SUNIL RANA
ADDL. DISTRICT JUDGE 03 (WEST )
TIS HAZARI COURTS
DELHI
Suit No. 74/10
Unique ID No. 02401C0139812010
Sh. Iqbal Singh ...........Plaintiff
Versus
Sh. Avtar Singh & Ors. .......... Defendants
Date of filing application : 21.08.2010
Date of Reserving Order : 24.11.2011
Date of Decision : 24.11.2011
O R D E R : Vide this order, I shall decide the application U/o 7 Rule 10 read with section 151 CPC filed by the defendant.
1. Brief facts as stated in the application are that suit for partition and injunction was filed by the plaintiff which is pending adjudication before this court and admittedly the plaintiff has valued his 1/6th share to be of Rs.19,90,000/ and hence the entire value of the suit property is more than one crore rupees. It has been stated that in a suit for partition, the S.No.74/10 ......1/7 suit must be valued as per whole value of the property and not as per the share of the plaintiff and this Hon'ble Court has no jurisdiction to entertain the present suit and plaint may kindly be returned to the plaintiff. Counsel for defendant has also relied upon judgment which are as under :
a) Rail Chand Vs. Alal Chand 1977 DLT 13153.
b) Jagdish Prasad Vs. Joti Pershad 1975 RLR 0203.
2. On the other hand, plaintiff has filed reply by raising preliminary objections that the present application is not maintainable as the same is an abuse of process of law. It has been urged that suit is for partition and permanent injunction and there is no question of returning of plaint as plaintiff has valued the entire suit property for Rs.19,90,000/ and has only claimed 1/6th share in the suit properties and suit has been correctly valued for the purpose of court fees and jurisdiction and as such the present application lacks merits and is liable to be dismissed.
3. I have heard the counsel for parties and also perused the record.
4. Before deciding this application, I have gone through the provisions of Order 7 Rule 10 CPC which is as under: S.No.74/10 ......2/7 " [ Subject to the provisions of Rule 10A, the plaint shall] at any stage of the suit be returned to be presented to the court in which the suit should have been instituted."
5. The rule provides for the return of the plaint in all cases where a court is unable to entertain it for want of jurisdiction ( territorial or pecuniary or other case). If the court is itself satisfy that it has no jurisdiction to entertain a cause,it is a duty to give effect to that on its initiative to return the plaint.
6. If at any time it is apparent to the court on the averments in the plaint itself that it has no jurisdiction, either pecuniary or territorial to entertain the matter, court can always direct the plaint to be returned.
7. In case of any inaccurate value, if it is found on appropriate valuation that the suit is beyond the pecuniary jurisdiction of the court, the plaint is to be returned. It is mandatory on the part of the court to return the plaint for being presentation to the appropriate court when it comes to the conclusion at any stage that it has no jurisdiction over the subject matter of the suit.
8. In the instant case, the plaintiff has valued his suit for the purpose of court fees and jurisdiction for Rs.19,90,000/ being S.No.74/10 ......3/7 the market value of the1/6th share in the suit properties on which ad voleram court fees has been affixed and relief of partition has been sought in the following properties :
a) Property no. F101, Maya Puri, PhaseII, New Delhi.
b) B40, Asha Park, New Delhi.
c) Shop at Kashmere Gate, Delhi110006
d) Property No.4, Chander Vihar, Nilothi Extension,
Delhi41.
e) Property no. B72, Asha Park, New Delhi.
9. Counsel for defendant has argued that it is a well settled principle of law that jurisdiction value has to be fixed on the basis of whole property which is sought to be partitioned and this court has no jurisdiction to entertain the present suit.
10. On the other hand, counsel for plaintiff has argued that the plaintiff has only 1/6th share in the properties and having regard to the value of his share, the value of the properties falling to his share shall be within the jurisdiction of this court and according to him the suit has to be valued on the basis of his share only and cannot be determined with respect to the value of the whole properties.
11. In Ramesh Chand Bhardwaja Vs. Ram Prakash S.No.74/10 ......4/7 Sharma AIR 1991 Delhi 280, wherein it has been held by the Hon'ble High Court that in a suit for partition of the property, as in the present case, the jurisdictional value has to be determined on the value of the whole of the property in accordance with the previsions of R.8 of Chapter 3C of Punjab High Court Rules and Orders,Volume I, framed by the High Court under the powers conferred by the S.9 of this Suits Valuation Act 1887, it has been further held that S.9 of the Suits Valuation Act 1887 (VII of 1887) envisages 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, an paragraph X, clause (d), is such that in the opinion of the High Curt is does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government direct that the suits of that suits of that class, shall , for the purposes of Court fees Act, 1870, and of the Suits Valuation 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 that behalf. Pursuant to its aforesaid power the Punjab High Court has framed Rule 8 in Chapter 3C of the Punjab High Court Rules S.No.74/10 ......5/7 and Order, volume I, which are applicable to Delhi, providing for the value regarding court fees and jurisdiction which a plaintiff is required to state in the plaint in suits for partition of property. It would, therefore, be seen that so far as value for the purpose of jurisdiction is concerned, for the purpose of Suits Valuation Act, 1887, value of the whole of the property, sought to be partitioned, as determined by sections 3, 8 and 9 of the Suit Valuation Act has to be stated. Accordingly for the purpose of court fee and jurisdiction, the value of whole of the property should be taken into consideration.
12. Considering the facts and circumstances of the case and averments made in the plaint, it is clear from the plaint that plaintiff is seeking partition of five properties mentioned above and has sought 1/6th share in the suit properties and has fixed the value of the suit property at Rs.19,90,000/ being the market value of 1/6th share in the suit property. I find force in the arguments of counsel for the defendant that suit has not been properly valued for the purpose of pecuniary jurisdiction.
13. Relying upon the judgment Ramesh Chand Bhardwaja Vs. Ram Prakash Sharma (Supra), I am of the view that in a suit for partition for the purpose of court fees and jurisdiction, S.No.74/10 ......6/7 suit has to be valued as per whole of the value of the suit properties. I am of the considered opinion that present suit has not been properly valued for the purpose of court fees and jurisdiction and this court has no jurisdiction to entertain the present suit as the value of the properties are beyond the pecuniary jurisdiction of this court. Hence, Application U/o 7 Rule 10 read with Section 151 CPC is hereby allowed and plaint is returned to the plaintiff to be presented before the competent court of jurisdiction in accordance with law, in these circumstances, no order as to cost.
Announced in the open court ( Sunil Rana )
th
today i.e.24 November, 2011. ADJ02 (West)/Delhi S.No.74/10 ......7/7 Suit No.74/10 24.11.2011 Present: Sh. Vinod Kumar counsel for plaintiff.
Proxy counsel for defendant.
Clarification sought. Put up for order at 4.00 pm. ( Sunil Rana ) ADJ03(West)/Delhi 24.11.2011 At 4.00 pm Present: Proxy counsel for parties.
Vide separate order, application U/o 7 Rule 10 read with section 151 CPC is hereby allowed and plaint is returned to the plaintiff to be presented before the competent court of jurisdiction in accordance with law. All the pending application, if any, stands disposed of.
Ahlmad is directed to return the plaint as per rules after taking certified copies on record. After compliance, file be consigned to record room.
( Sunil Rana ) ADJ03(West)/Delhi 24.11.2011 S.No.74/10 ......8/7