Delhi District Court
Wasi Ahmed vs . Mohd. Islam & Ors. on 16 October, 2012
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 389/2011
In the matter of :
Wasi Ahmed Vs. Mohd. Islam & Ors.
16.10.2012
ORDER :
Vide this order, I shall dispose off the application of the defendant u/o 7 Rule 11, CPC.
2 The plaintiff has filed the present suit for partition and injunction and has valued the suit for the purpose of jurisdiction and for the relief of partition and possession as Rs.10 lakhs and for the purpose of court fee as Rs.2 lakhs i.e. on value of share of plaintiff and for relief of injunction as Rs.130/. Plaintiff has submitted that he is in physical possession of the suit property so fixed court fees was paid on both the reliefs. However, plaintiff on being examined by the court admitted that he does not reside in the suit property and he resides in the address given on the plaint and accordingly this court directed him to pay deficient court fees vide order dated 21.04.2011 which was duly complied on 30.04.2011.
Contd....P..1 of 10 : 2 : 3 Defendant has filed the present application on the basis that the pecuniary jurisdiction of this court is barred as the value of the property as per the circle rate has fixed by the Delhi Govt. is Rs.32,000/ per sq. yard as the suit property falls under the category F and on the said fixed circle rate, value of suit property comes to Rs.43,20,000/ for vacant piece of land measuring 135 sq. yard while the property in question is built up and if the cost is added then value would be more than Rs.50 lakhs. Accordingly, defendant has submitted that even for purpose of court fees, the suit has been under valued as plaintiff has claimed one fifth share in the suit property. In support of his submissions, the plaintiff has filed copy of notification of circle rates w.e.f. 08.02.2011. 4 Plaintiff in his reply has denied that the relief is under valued and has submitted that the circle rates have been prepared u/s 47 A of Indian Stamp Act and Section 47 A indicates that Collector is the statutory authority for valuation of land and properties. Plaintiff has submitted that Delhi Stamp (Prevention of Under Valuation of Instruments) Rules 2007 indicates that the circle rates shall act as valuation guidelines for purpose of assessing the duty chargeable on the value or consideration of any immovable property and the Collector may regard circle rates determined by Govt. to find out prima facie whether market value set out in the instrument had been given correctly. 5 Plaintiff has submitted that Collector can not regard circle rates as Contd....P..2 of 10 : 3 : the last word on subject of market value and they are only guideline values. Ld. Counsel for plaintiff during the course of arguments submitted that the suit land cannot be valued as the suit land has been declared u/s 6 of Land Requisition Act and the suit land is prohibited for transaction under Delhi Lands (Restrictions on Transfer) Act, 1972.
6 Arguments heard. Record perused carefully.
7 There is no substance in the arguments of plaintiff that the suit property has no value as the suit land is prohibited for transaction. With respect to Section 47 A of Stamp Act, it provides that if Registering Officer while registering any instrument, transferring any property has reason to believe that the value of the property or the consideration has not been truly set forth in the said instrument, he may after registering such instrument refer the same to Collector for determination of value of consideration and the proper duty payable thereon. The said provision in itself reveals that even at the time of registration of an instrument if the value of the suit property is not given correctly or has been mentioned which seem to be under valued, the instrument is sent to the Collector for determination of proper price of the property as well as for determining the duty on the said instrument. Section 33 of Stamp Act also provides for impounding of the instrument relating to immovable property if the stamp duty is found to be deficient and the document is sent to the Collector for determination Contd....P..3 of 10 : 4 : of proper stamp duty and the party to the document has to pay the duty determined by the Collector.
8 A reading of Section 47 A reveals that circle rate is the guiding factor for determining the value of any property and if the consideration amount is undervalued the Collector corrects the valuation and the party has to make up the deficiency. Both the Stamp Act and Court Fees Act are fiscal legislation and the object is that exchequer should not suffer revenue loss. The present suit has also been filed for partition of immovable property. The circle rate are the guiding factor for determining the value of the property. Accordingly, the value of the suit for the purpose of court fee has to be computed under the provisions of Section 7(iv) (b) of Court Fees Act and the court fees has to be paid advalorem on the value of subject matter.
9 Defendant in application under Order 7 Rule 11 CPC has prayed for rejection of plaint as the market value of the suit property is stated to be more than Rs.50 lakhs as mentioned earlier i.e. as the value of the property as per the circle rate has fixed by the Delhi Govt. is Rs.32,000/ per sq. yard as the suit property falls under the category F and on the said fixed circle rate, value of suit property comes to Rs.43,20,000/ for vacant piece of land measuring 135 sq. yard while the property in question is built up and if the cost is added then value would be more than Rs.50 lakhs.
Contd....P..4 of 10 : 5 : 10 The circle rate of the property is a public document and a reference to the same in the W/S of defendant does not imply that the court is referring to the defence of defendant while deciding application under Order 7 Rule 11 CPC. As regards the area of the property, the same has been adverted to by Ld. counsel for plaintiff also during the course of arguments. Thus, the present application is being decided on the basis of the plaint and documents filed by the plaintiff alone.
11 Ld. counsel for plaintiff advanced his arguments that under Section 7(iv) of Court Fees Act, the plaintiff has a discretion to value the subject matter of the suit and the court cannot intervene with the valuation given by the plaintiff. In support of his case, Ld. counsel for plaintiff relied on judgment titled Thakur Kuldeep Singh (dead ) through LRs and Ors. Vs. Union of India & Ors., II (2010) SLT 344, where it was held that no ground was made out for enhancement of compensation which cannot be computed on the basis of circle rate and market value for acquired lands cannot be fixed. However, plaintiff did not refer to the same part of the judgment where it is mentioned that locality and prevailing circumstances are relevant for determining of real value of land. 12 Plaintiff has also relied on judgment titled Laxmi Amal Vs. K.M Madhva Krishnan & Ors., AIR 1978 SC 1607. The said judgment only says that if plaintiff is in possession of suit property then he has to pay fixed court fees Contd....P..5 of 10 : 6 : under Article 17 of Schedule II of Court Fees Act. Here the plaintiff has admitted to be out of possession of suit property and thus the said judgment does not apply to the facts of the case.
13 Ld. Counsel for plaintiff has relied on Sathappa Chettiar Vs. S.R.A.R. Ramanathan Chettiar where it was held that Paragraph (iv) of Section 7 of the Court Fees Act gives a right to the plaintiff in any of the suits mentioned in the clauses of that paragraph to place any valuation that likes on the relief he seeks, and the court has no power to interfere with the plaintiff's valuation. 14 Ld. counsel for plaintiff also relied on Kamla Devi Vs. S.C. Borad of Vakf UP, AIR 1949 Allahabad 63 where it was held that market value means value which the property would fetch in open market irrespective of any limitation to which it may be subject. This judgment also does not help the plaintiff rather it nullifies the submissions of plaintiff that there is no market value of the suit property as no transaction can be made with respect to the property under provisions of Delhi Lands (Restriction on Transfer) Act 1972. Ld. Counsel for plaintiff has also relied on Collector of Nilgiris Vs. Mahavir Plantations Pvt. Ltd., AIR 1982 Madras 138 and Jawajee Nagnatham Vs. Revenue Divisional Offices, Adilabad & Ors., (1994) 4 SCC 595 and Logannatham Vs. Cheenia Chettiar, AIR 1996 Madras 224 and Inder Prasad & Ors. Vs, Union of India & Anr., AIR 1985 Delhi 304 and Gourang Nayak Vs. State, AIR 1992 Orissa 332.
Contd....P..6 of 10 : 7 : However, none of these judgment support the case of plaintiff as these do not relate to aspect of court fees or value for the purpose of jurisdiction. 15 The plaintiff has not given any basis for valuation of his relief to be Rs.2 lakhs except that value of suit property is Rs.10 lakhs and accordingly his share is of Rs.2 lakhs. It is correct that in suits filed under Section 7(iv) of Court Fees Act, the plaintiff has a discretion to value his relief for the purpose of court fees. However, the said discretion cannot be exercised arbitrarily. It has been held in Gopal Chandra Jena Vs. Sri Laxmi Narayan Bijo Mauria Alava, AIR 1990 Ori 98; that while the plaintiffs are free to put their own valuation on the relief claimed by them, yet it is the consensus of law that the valuation cannot be arbitrary so as to bring it within the jurisdiction of any particular court but that the valuation has to be reasonable and based upon some nexus or criteria though it need not necessarily be the market value 16 This view was reiterated in Smt. Tara Devi Vs. Thakur Radha Krishna Maharaja, (1987) 4 SCC 69;
"The plaintiff however, has not been given the absolute right or option to place any valuation whatever on such relief and where the plaintiff manifestly and deliberately underestimates the relief the court is entitled to examine the correctness of the valuation given by the plaintiff and to revise the same if it is patently arbitrary or unreasonable."
17 In the matter of Abdul Hamid Shamsi Vs Abdul Majid, AIR 1988, Contd....P..7 of 10 : 8 : SC 1150, Apex Court held that "It is true that in a suit for accounts the correct amount payable by one party to the other can be ascertained only when the accounts are examined and it is not possible to give an accurate valuation of the claim at the inception of the suit. The plaintiff is, therefore, allowed to give his own tentative valuation. Ordinarily the court shall not examine the correctness of the valuation chosen, but the plaintiff cannot act arbitrarily in this matter. If a plaintiff chooses whimsically a ridiculous figure it is tentamount to not exercising his right in this regard. In such a case it is not only open to the court but its duty is to reject such a valuation."
18 In the matter of Commercial Aviation and Travel Company Vs Vimla Panna Lal, AIR 1988 SC 1636, Hon'ble Supreme Court of India held that:
"There may be cases under section 7(iv) where certain positive objective standard may be available for the purpose of determination of the valuation of the relief. If there are materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the court, in our opinion, is entitled to interfere under Order VIII Rule 11(b) of the Code of Civil Procedure, for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it.
Thus, where there are objective standards of valuation or, in other words, the plaintiff or the court can reasonably value for the relief correctly on certain definite and positive materials, the plaintiff will not be permitted to put an arbitrary valuation de hors such objective standards or materials."
19 In the matter of Tara Devi Vs. Sri Thakur Radha Krishna Contd....P..8 of 10 : 9 : Maharaj, (1987) 4 SCC 69; it has been laid down by Hon'ble Supreme Court that in a suit for declaration with consequential relief falling under section 7(iv)(c) of the Court Fees Act, the plaintiff is free to make his own estimation of the relief sought in the plaint and such valuation both for purposes of court fee and jurisdiction has to be ordinarily accepted. Further it has been observed that it is only in cases where it appears to the court on consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same.
20 Thus I am of the considered view that the plaintiff cannot whimsically choose any figure for filing the suit most arbitrarily where there are positive materials and / or objective standards of valuation of the relief appearing on the face of the plaint. These materials or objective standards will also enable the court to determine the valuation for the purpose of order VII, Rule 11(b) of the Code of Civil Procedure. There are declared circle rates for the suit property and the plaintiff cannot determine the value of the suit for the purpose of court fees by ignoring the said objective standard or positive material. Thus in my considered opinion, the plaintiff has grossly undervalued the suit for the purpose of court fees. The plaintiff is directed to correct the valuation of the suit and to pay the court fees on the same within 15 working days from today failing which the plaint will be rejected under Order 7 Rule 11 CPC.
Contd....P..9 of 10 : 10 : 21 To come up for further proceedings on 17.12.2012.
Dictated and announced in the open court on 16.10.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 16.10.2012 Contd....P..10 of 10