Orissa High Court
Alphard Maritime Ltd vs Ocean Jade (Imo on 7 May, 2025
Author: M.S. Sahoo
Bench: M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
ADMLS No.2 of 2025
ALPHARD MARITIME LTD. .... Plaintiff
Mr. D.P. Nanda, Sr. Advocate
along with Mr. Samvit Mohanty, Advocate
Mr. Anurag Pati, Advocate
Mr. Adwitiya Satpathy, Advocate
Ms. Jimisha Dalal, Advocate
Ms. Nitansha Nema, Advocate
Mr. Aryan Sharma, Advocate
Ms. Shivani Das, Advocate
-versus-
OCEAN JADE (IMO: .... Defendants
9660750) and another
Mr. Gautam Mukherji, Sr. Advocate
along with Mr. S.S. Mohanty, Advocate
Ms. Arusmita Acharya, Advocate
Ms. Ankita Mukherji, Advocate
Mr. Amlan Mishra, Advocate
Mr. S.S. Moharana, Advocate
Ms. Deepsha Dhal, Advocate
Mr. S.K. Padhi, Sr. Advocate along with
Mr. Ipsit Aurobindo Acharya, Advocate
Mr. Nitesh Jain, Advocate
Mr. Atul Jain, Advocate
Ms. Juhi Mathur, Advocate
Mr. Piyush Panda, Advocate
(For intervenors)
Page 1 of 24
CORAM:
JUSTICE M.S. SAHOO
ORDER
07.05.2025 (Hybrid Mode) I.A. No.15 of 2025 and I.A. No.11 of 2025 Order No.
11. 1. Mr. Mukherji, learned Senior Counsel continuing his submissions in the I.A. No.15 of 2025 i.e. in response to the prayer for amendment made by the plaintiff. The learned Senior Counsel refers to the judgment rendered by the High Court of Bombay in Rushab Ship International LLC and others v.
Bunkers onboard the Ship M.V. African Eagle:
2014 SCC OnLine Bom 620. The relied upon paragraphs 17, 18, 21 22, 23, 25, 31, 37, 38, 48, 49 and 51 are reproduced herein:
17. In Golden Progress (supra), what the Court had to consider was whether an application under Section 9 of the Arbitration and Conciliation Act, 1996 for security pending the award could be obtained by arrest of a ship in rem. The Court held, for arrest of a vessel for obtaining security for an award that may be made in the arbitration proceeding, an application under Section 9 of the said Act is not maintainable. What the Court held was an action in rem (in admiralty jurisdiction) for recovery of the claim and arrest of the vessel where the parties have agreed to submit the dispute to Page 2 of 24 arbitration can be maintained and in such case if by way of an interim measure, the vessel is arrested or security is provided to obtain the release of the vessel, matter shall proceed in accord with Article VII of the International Convention on Arrest of Ships, 1999.
18. In Golden Progress, the plaintiffs had filed a suit (a) for the purposes of recovering an amount aggregating US$ 46,913.52 (together with interest thereon and costs) due and payable to them by the second defendant and (b) in the alternative, for securing the said amount pending the commencement and outcome of the arbitration proceedings to be initiated in London against the second defendant.
The plaintiffs had claims against the defendants under the Charter Party and the defendants not having made the payments, the plaintiffs filed the suit. It is necessary to emphasise that the primary prayer was for a decree in their favour, i.e., for recovering US$ 46,913.52 and only in the alternative the plaintiffs pleaded that in view of the arbitration clause they are entitled to an order of arrest of the ship to secure their claim in arbitration which was to be commenced. In the said judgment, the full bench considered the Apex Court's judgment in the matter of Bhatia International v. Bulk Trading S.A.5 and held that the conclusions drawn in Bhatia International by the Apex Court and the law declared therein do not lead to the conclusion that an application under Section 9 of the said Act is maintainable for the arrest of the vessel for obtaining security for an award that may inure for their benefit in the foreign arbitration. The Court felt that Section 9(ii)(b) of the said Act cannot be construed so as to read into it in rem jurisdiction. The Court held that the said provision does not cover the arrest of the ship or the keeping of the ship under arrest in the exercise of the Court's jurisdiction in rem at all. The Court held that what is provided by Section 9(ii)(b) is securing Page 3 of 24 the amount in dispute in the arbitration by way of an interim measure which does not include the arrest of the vessel. Though the Court has not said in so many words, I would say that such an action in the admiralty jurisdiction cannot be only for security pending arbitration as the sole relief. The reason for that, in my view, is the ship may be arrested in the admiralty jurisdiction only to acquire/assume jurisdiction or to obtain security for satisfaction of the claim when decreed or in execution of a decree and once the vessel is arrested, the suit must proceed to trial against the owner as in any other suit. In fact, this is confirmed by the full bench in Golden Progress (supra), while considering the judgment of the Apex Court in the matter of M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd. and in the matter of M.V. Sea Success v. Liverpool and London Steamship Protection and Indemnity Association Ltd.. The Full Bench has in paragraphs 30 and 38 observed thus:
21... ... ... Like in the Golden Progress matter, if a party files a suit in which the primary prayer was for a decree, it is quite possible that the defendant may give up the arbitration and proceed to defend the suit in which event, the suit shall be proceeded with and it cannot be said that the High Court had no jurisdiction to deal with such suits. This means that the plaintiff may not be keen to go on with arbitration, but may want to go on with the suit and the defendants may also sing along in which case the suit has to be proceeded with. At that stage, the plaintiff cannot say that the High Court has no jurisdiction to deal with the suit but to refer the matter to arbitration. However, in such a suit, if the defendant comes and insists that there is valid arbitration agreement operative and capable of being performed and if that is so, the Court shall have no discretion but to refer the parties to arbitration Page 4 of 24 agreement. It is for this reason in Golden Progress the Full Bench in its concluding paragraph no. 78(ii) said:
"78....
(i) ....
(ii) An action in rem (in admiralty jurisdiction) for recovery of the claim and arrest of the vessel where the parties have agreed to submit the dispute to arbitration can be maintained and in such case if by way of an interim measure, the vessel is arrested or the security provided to obtain the release of the vessel, matter shall proceed in accord with Article VII of the International Convention on Arrest of Ships, 1999.
(emphasis supplied)
(iii) ....
(iv) ...."
22. The expression used is "An action in rem (in admiralty jurisdiction) for recovery of the claim and arrest of the vessel ....". Recovery of claim can only be in the suit where the plaintiff has sought a decree - 'recovery of the claim'. In fact, the Full Bench has quoted and has not disagreed with what the English Courts have held. The English Courts have opined that where the plaintiff had sought to invoke the admiralty jurisdiction not to obtain the hearing and determination of claim but for the purpose of obtaining security for an award for arbitration proceedings such an action cannot be maintained. Para 39, 40, 41 & 42 of Golden Progress read as under:
23. ... ... ...Brandon, J. granted the order for which the ship owners asked and also ordered that in the event of the action being so dismissed, the bail should be released. Brandon J. opined that the charterers had sought to invoke the admiralty jurisdiction not to obtain the hearing and determination of claim but for the purpose of Page 5 of 24 obtaining security for an award for arbitration proceedings, and that an admiralty court had no jurisdiction to arrest the ship or to keep ships under arrest for that purpose."
25. ... ... ... it is not the purpose of arresting a ship in an action in rem to provide the plaintiff with security for payment of an award which he may obtain in an arbitration of the same claim as that raised in the action and, therefore, the court has no jurisdiction to arrest a ship, or keep her under arrest, for such other purpose.
31. In the BALCO (supra) judgment, the Apex Court has in no uncertain terms held that an inter parte suit simply for interim reliefs pending arbitration would not be maintainable. The Apex Court held that in order to claim an interim relief, the existence of a pending suit is necessary. The Apex Court opined that pendency of the arbitration proceedings outside India would not provide a cause of action for the suit where the main prayer is for interim relief and in a suit where it is only for interim relief as security pending arbitration, interlocutory reliefs and the final relief would be identical and such a suit would not be maintainable because an interlocutory injunction can only be granted during the pendency of the suit, claiming the relief which is likely to result in a final decision upon the subject in dispute. The Apex Court further held that the suit would be maintainable only on the existence of a cause of action, which would entitle the plaintiff for the substantive relief claimed in the suit and the interim relief must be a part of the substantive relief to which plaintiff's cause of action entitled him. The Court further said that these ingredients will be missing in a suit claiming only interim relief during pendency of the arbitration proceedings outside India. Since the dispute is to be decided by the arbitration, no substantive relief concerning the merits of the arbitration Page 6 of 24 could be claimed in the suit and the plaintiff's only claim would depend on the outcome of the arbitration proceedings in a foreign country over which the Courts in India would have no jurisdiction. The cause of action would clearly be contingent/speculative. There would be no existing cause of action and the plaint itself would be liable to be rejected under Order 7 Rule 11(a) of the Civil Procedure Code. What in effect the Court said was no interim relief could be granted unless it is in aid of as an auxiliary to the main relief that may be available to a party on final determination of rights in a suit.
37. .. ... ... In order to claim an injunction the existence of a pending suit is a prerequisite. It is in this background that one has to examine as to whether an inter partes suit for interim relief during the pendency of arbitration proceedings outside India would be maintainable.
38. ... ... ... outside India would not provide a cause of action for a suit where the main prayer is for injunction. ... .... ... It must also be noticed that such a suit, if at all, can only be framed as a suit to "inter alia restrain the defendant from parting with property." ... ... ... All that could then be filed would, therefore, be a bare suit for injunction restraining the other party from parting with property. The interlocutory relief would also be identical. In our view, such a suit would not be maintainable, because an interlocutory injunction can only be granted during the pendency of a civil suit claiming a relief which is likely to result in a final decision upon the subject in dispute. The suit would be maintainable only on the existence of a cause of action, which would entitle the plaintiff for the substantive relief claimed in the suit. The interim injunction itself must be a part of the substantive relief to which the plaintiff's cause of action entitled him. In our opinion, most of the aforesaid ingredients are missing in a suit claiming injunction restraining a party from dealing with the Page 7 of 24 assets during the pendency of arbitration proceedings outside India. Since the dispute is to be decided by the Arbitrator, no substantive relief concerning the merits of the arbitration could be claimed in the suit. The only relief that could be asked for would be to safeguard the property which the plaintiff may or may not be entitled to proceed against. ... ... ... The cause of action would clearly be contingent/speculative. There would be no existing cause of action. The plaint itself would be liable to be rejected under Order 7 Rule 11(a). ... ... ...
48. So far as the Indian Law is concerned, it is settled that the source "of a Court's power to grant interim relief is traceable to Section 94 and in exceptional cases Section 151 CPC. The Civil Procedure Code pre-supposes the existence of a substantive suit for final relief wherein the power to grant an interim relief may be exercised only till disposal thereof.
49. In this view of the matter, it is patent that there is no existing provision under the Civil Procedure Code or under the Arbitration Act, 1996 for a Court to grant interim measures in terms of Section 9, in arbitrations which take place outside India, even though the parties by agreement may have made the Arbitration Act, 1996 as the governing law of arbitration.
(emphasis supplied)"
51. In the circumstances, as the Apex Court has held that an interparte suit simply for interim relief pending arbitration outside India will not be maintainable and unless the dispute is decided by the arbitrator cause of action will clearly be contingent and speculative and there will be no existing cause of action, the plaint is bound to be rejected under Order 7 Rule 11(a). In my opinion, the Court's jurisdiction to arrest a ship in an action in rem should not be exercised for the purpose of providing security of an award, which may be made in arbitration proceedings that is Page 8 of 24 maintainable because the purpose of the exercise of the jurisdiction is to provide security in respect of the action in rem, and not to provide security in some other proceedings like an arbitration proceeding. If the plaintiff invokes the jurisdiction of the Court to obtain the arrest of the ship as security for an award in an arbitration proceeding, the Court should not issue a warrant of arrest."
2. The learned Senior Counsel refers to the decision of Madhya Pradesh High Court at Gwalior in Ramcharan Goyal v. Smt. Kamlarani Verma and others, Misc. Petition No.6624 of 2023 decided on 02.05.2025, paragraphs 10 and 11 are reproduced herein:
"10. As per the law settled, the allegations in the plaint including the substantive relief claimed must be the basis for settling the Court fee payable by the plaintiff. But where the plaintiff attempts to under-value the plaint and reliefs, the Court has to intervene. In doing so, concept of real money value forms integral part of Court enquiry where relief sought has real money value, which can be objectively ascertained. In this connection, Sub- section (iv)(c) of Section 7 of the Act which relates to computation of court fees payable in certain suits, envisages that "to obtain a declaratory decree or order, where consequential relief is prayed".
11. In the present case, petitioner-plaintiff has sought declaration for protection of possession on the basis of agreement to sell which itself is not the basis of any title. The relief for such declaration is an independent relief and connected with the relief of title, meaning thereby, the relief sought by the plaintiff on the basis of agreement automatically Page 9 of 24 includes the question of title alongwith possession and for such independent relief, the petitioner will have to pay the court fee on the basis of amount of consideration mentioned in the agreement."
3. The learned Senior Counsel then refers to the decision of this Court by a coordinate Bench in Sk.
Majnu v. Lochan Sahoo: (2011) 112 CLT 886: 2011 SCC OnLine Ori 170, paragraph 15 is reproduced herein:
"15. Also, even though provision under Section 7
(iv)(c) of the Court Fees Act provides for determination of valuation of the suit by 9 the plaintiffs at his option but such valuation cannot be arbitrary and must have some relation with the realmarket value of the property at the time of institution of the suit. Referring to a number of authoritative judicial pronouncements, this Court has held in Kedarnath Biswal -vrs.- Budhanath Jena : 106 (2008) CLT 595:
"6. On a close and composite reading of the provisions of Section (iv)(c) of the Court Fees Act along with the above noted case laws, one can comfortably infer that in a suit for declaration coupled with the consequential reliefs, the Plaintiffs as per the provisions of Section 7 (iv)(c) of the Court Fees Act can value the suit at his option, but such valuation cannot be arbitrary and must have some relation with the real market value of the property at the time of institution of the suit.""
4. The learned Senior Counsel relies on the decision of the High Court of Delhi in Radha Goyal v. Gaurav Page 10 of 24 Goyal and another: 2024 SCC OnLine Del 2318.
Paragraphs 6, 7, 8 and 9 are relied upon and are reproduced herein:
"6. The said order was never challenged and attained finality. Arguments were then addressed on the application of the respondents/defendants under Order VII Rule 11 of the CPC. When the third application was moved and apparently in order to avoid ad valorem court fee, the petitioner/plaintiff sought to introduce averments in the nature of claiming constructive/joint possession of the properties in question along with the respondents thereby blowing hot and cold in same breath inasmuch as perusal of the pleadings would show that she has claimed complete ouster and exclusion from the possession of the properties by the respondents. Learned Trial Court noticed the following defects in the proposed amendment that were sought to be carried out in paragraph (11):
"a) Plaintiff has not separately stated value of each relief for the purpose of jurisdiction and court fees.
b) Plaintiff has created dichotomy by taking inconsistent pleas regarding court fee payable by plaintiff qua relief of • partition and possession of immovable properties. At one place, plaintiff has pleaded that court fee payable by her is fixed court fee of Rs. 20/-
because she is in joint constructive possession of immovable properties for which plaintiff has sought partition and at another place, plaintiff has undertaken to pay court fees as per her 1/3rd share in the suit properties at the time of drawing up of decree in present suit and also Page 11 of 24 filed an application U/sec 149 CPC in this regard.
c) Plaintiff has not specified value of relief of rendition of accounts for the purpose of jurisdiction and court fees and what amount of court fees is being paid by plaintiff qua relief of rendition of accounts in accordance with Section 7(iv)(f) of Court Fees Act.
d) Plaintiff has deliberately under valued estimate of relief in para No. 11(8)(i) and 11(8)(ii) in the present application after estimating it at much higher value in first application as well as in second application without any reason. In the first and second applications, estimation of income from business of "Gopal Ice Cream" has been valued @ Rs. 60 lacs since 2010, however, in order to avoid payment of ad-valorem court fees on the same, plaintiff has strategically and with malafide intent reduced estimate of the said relief to Rs. 1,000/only. Similarly, plaintiff has reduced estimation of gold ornaments and cash amount from Rs. 25 lacs and Rs. 50 lacs respectively to Rs. 2500/- together. This shows malafide intent of plaintiff to deliberately under value relief in order to avoid paying higher court fees as per Section 7 of Court Fees Act. Order 6 Rule 17 CPC clearly avoids amendments made with malafide intent or dishonestly.
e) In original plaint, plaintiff has not averred that she is in alleged joint possession of movable goods as stated in paragraph No. 11 of proposed amendment. The movable properties which include gold ornaments which were previously valued at Rs. 25 lacs and cash amount of Rs. 50 lacs for the purpose of jurisdiction are not stated to be part of joint Hindu Family. Without clarity regarding relief being sought and no averment qua joint possession, relief with respect to movable properties remain relief of possession only on Page 12 of 24 which plaintiff is liable to pay advalorem court fees on market value of movable assets at the time • of presenting plaint. Plaintiff cannot give arbitrary valuation to said movable assets aggregating to Rs. 2500/- only.
f) Plaintiff has not specified what is the value of relief of injunction for the purpose of court fees and what amount of court fees is being paid by plaintiff qua relief of permanent injunction.
g) Plaintiff has amended prayers of the plaint and even deleted prayer of permanent injunction which was being sought while valuing relief of permanent injunction in paragraph No. 11 which fact clearly shows that plaintiff is filing amendment applications simply to delay present proceedings."
7. It would be relevant to reproduce the reasons given by the learned trial Court in dismissing the application, which go as under:--
"26. It is stated that it is well settled that amendment to plaint is retrospective in nature and such amendment shall be applicable from the date, plaint was instituted. It is apparent that this court did not have pecuniary jurisdiction to hear the case, when the same was filed. Defendant No. 1 has taken the objection in his written statement and also moved an application that this court did not have pecuniary jurisdiction to try the suit and suit was not properly valued for the purpose of jurisdiction and court fees, however, plaintiff instead of moving appropriate application at that stage had opposed application filed by defendant No. 1 and thus, wasted almost 09 years of the court-as well as of defendant No. 1. After period of 09 years, clock is trying to be moved anti clockwise and parties are again relegated to the position in which they were 07 years ago. Application has been filed by plaintiff Page 13 of 24 with malafide intention to delay proceedings and hence, deserve to be dismissed.
27. On reply on merits, contentions of plaintiff have been denied. It is denied that unless there is dismissal of partition suit on merits, right to partition does not extinguish. It is stated that multiple opportunities have been granted to plaintiff to amend the plaint to comply with law of valuation but plaintiff has failed to do so and has filed present application with malafide intention to avoid payment of ad valorem court fees despite finding of this court in order dated 22.11.2023 that plaintiff is not in possession of suit properties and is liable to pay ad valorem court fees.
28. Plaintiff has failed to meet onus under proviso to Order 6 Rule 17 CPC that despite due diligence, party could not have raised the matter before commencement of trial. Documents for circle rate filed with the application are denied. It is stated that valuation is not clear as to which property is being valued. Plaintiff is attempting to add word "constructive" joint possession in para numbers 3 and 7 of the plaint simply to avoid payment of ad valorem court fees as directed vide order dated 22.11.2023. Plaintiff has deleted relief of permanent injunction even after valuing the same while attempting to amend para No. 11 of the plaint.
29. It is prayed to dismiss present application with costs and to pass any other order or direction as this court may deem fit.
30. I have heard arguments addressed by respective counsels and perused record including judgments filed by both the parties.
31. Present amendment application is stated to have been filed by plaintiff in terms of Page 14 of 24 observations of the Court in order dated 24.09.2021.
32. Perusal of record shows that on 21.08.2021 and 24.09.2021, Ld. Predecessor of this Court observed that aforesaid valuation of this suit is not in accordance with the law regarding valuation of a suit, for the purpose of jurisdiction and court-fees, provided in 'Rampur Distillery & Chemicals Co. Ltd. v. Union of India, (1995) 32 DRJ 733, Anu v. Suresh Verma CS(OS) No. 2546/2010 decided by Hon'ble High Court of Delhi on 12.07.2011, Jagdish Pershad v. Joti Pershad, ILR 1975 Del 841 and Rule 8, Part C, Chapter III. of Instructions to Civil Courts in Delhi, Volume I, High Court Rules & Orders'. After observing this, Ld. Predecessor of this Court granted an opportunity to plaintiff to amend paragraph No. 11 of the plaint of the suit and properly/separately value all the reliefs sought by way of this suit, for the purpose of jurisdiction and court-fees and further clarified/foretold plaintiff that if plaintiff does not do so, plaint of the suit shall be rejected as per Order VII Rule 11(b) CPC.
33. Present application is the third application filed by plaintiff after orders dated 21.08.2021 and 24.09.2021. Last application of plaintiff was dismissed vide order dated 22.11.2023.
34. Plaintiff was asked to amend paragraph No. 11 of the plaint but by way of present application, plaintiff has sought number of amendments in various paragraphs as detailed in the application which goes much beyond orders of the Court dated 21.08.2021 and 24.09.2021. It is pertinent to mention here that amendment in present case cannot be allowed as a matter of right as issues in the matter have been framed and trial of the matter has begun and present application does not in any way shows that inspite of due diligence, plaintiff Page 15 of 24 could not have raised the matter before commencement of trial in terms of proviso to Order VI Rule 17 CPC.
35. In order dated 22.11.2023, it was observed by this Court in paragraph No. 35 that plaintiff is not in possession of any of suit properties and in these circumstances, plaintiff cannot avoid payment of ad-valorem court-fees under Section 7(iv)(b) of the Court-Fees Act. Plaintiff instead of filing application in order to comply with this observation of the Court as has come in order dated 22.11.2023 has tried to mould amendments in a way that plaintiff may not have to pay requisite court-fees on reliefs sought by plaintiff which cannot be permitted and prima-facie amounts to abuse of process of law on part of plaintiff.
36. In the plaint initially filed by plaintiff, plaintiff has assessed value of suit for the purpose of jurisdiction @ Rs. 1.5 crores for relief of partition, possession and rendition of accounts and undertook to pay requisite court- fees after determination of the same by Court. Later on, by way of amendment application, plaintiff tended to bifurcate income from business Gopal Ice-cream to the tune of Rs. 60,00,000/- since year 2010 and gold ornaments, cash amount and rental income to the tune of Rs. 25,00,000/-, Rs,50,00,000/- and Rs. 60,00,000/respectively. By way of present application, plaintiff assessed income from business Gopal Ice-cream since year 201 0 to be arbitrarily Rs. 1,000/-, gold ornaments, cash amount and rental income since year 2010 to be collectively Rs. 2,500/-. Plaintiff has not disclosed any reason for change of this valuation from total Rs. 1,95,00,000/- to Rs. 3,500/- in aggregate of movable properties and prima-facie motive of plaintiff in arbitrarily valuing these reliefs to the tune of Rs. 3,500/- in Page 16 of 24 aggregate appears to be a mechanism to escape from payment of ad-valorem court-fees on the said reliefs which cannot be permitted.
37. Plaintiff in initial plaint filed prayed for grant of relief of permanent injunction which plaintiff • has omitted by way of present application as plaintiff has sought to modify prayers in the plaint though plaintiff has valued relief of permanent injunction in proposed paragraph No. 11 of the plaint. This shows gross negligence on part of plaintiff which cannot be allowed to take effect.
38. Defendant No. 1 has filed number of judgments to substantiate arguments that in case of ouster of plaintiff from suit properties, plaintiff should be liable to pay ad-valorem court-fees. I am not referring to those judgments as law in this regard is otherwise well settled and mentioning of the same will further prolong the order without any rhyme and reason as I have already observed in order dated 22.11.2023 that plaintiff is not in possession of any of the suit properties and in these circumstances, plaintiff cannot avoid payment of ad-valorem court-fees under Section 7(iv)(b) of Court-Fees Act which finding has not been challenged by plaintiff till date.
39. Plaintiff by way of present application has still not complied with orders of the Court dated 21.08.2021 and 24.09.2021 and present application in these circumstances appears to be nothing but abuse of process of law which cannot be permitted. Application filed by plaintiff in these circumstances deserves to be dismissed and is accordingly dismissed."
8. Unhesitatingly, the aforesaid observations clearly bring out the conduct of the petitioner/plaintiff in the open. It clearly appears that in order to avoid payment of ad Page 17 of 24 valorem court fee, the petitioner/plaintiff is making all sorts of attempts to hoodwink the process of law by avoiding putting a fair and just value to the reliefs claimed by her.
9. Suffice to state that although the petitioner/plaintiff by way of the proposed amendments has apparently valued each relief with regard to share in the properties putting a different value and though the overall relief is above Rs. 5,94,00,000/-, she has again elected to pay fixed court fee of Rs. 20/- and valuing the suit for permanent injunction at Rs. 130/-. There is a clear attempt to evade payment of ad valorem court fee under Article 17(vi) of the Court Fees Act, 1870 and the proposed amendment being not warranted by law, cannot be allowed."
5. The learned Senior Counsel further relies on the decision of the High Court of Punjab & Haryana at Chandigarh in Jatinder Pal Singh v. The State of Punjab and another: CR No.539 of 2024 (O & M) decided on 09.02.2025. Paragraphs 2, 5 and 6 of the said judgment are relied upon and are reproduced herein:
2. Shorn and short of unnecessary details, the facts, emerging from the perusal of the file and culminating in the filing of the present revision petition, are that the petitioner-plaintiff filed the above-referred Civil Suit for seeking a decree for declaration to the effect that the order passed by the respondents-defendants (here-in-after to be referred as 'the defendants') on 15.02.2018, Page 18 of 24 for denying his extension in the service, was illegal, arbitrary and discriminatory and he also claimed the damages for the consequential loss as suffered by him and further prayed for the issuance of mandatory injunction, by directing the defendants to grant him all the service benefits as well as compensation for the period, for which he was denied the extension of his service and to pay the damages, along-with interest thereon. The defendants filed written-
statement and the trial Court framed the issues on 18.03.2021. Thereafter, on 17.03.2022, the plaintiff stepped into the witness-box as his own witness and tendered his affidavit (Annexure P-
4) with some documents. Meanwhile, he moved the application Annexure P-3 under Order XI CPC and application Annexure P-5 for summoning the record and another application Annexure P-6 under Order XII CPC and as mentioned in the impugned order (Annexure P-
16), the defendants also moved an application under Order 7 Rule 11 CPC for seeking rejection of the plaint on the ground of non-payment/non- affixation of proper court-fee thereon. On 09.02.2023, the plaintiff moved the afore-said application, Annexure P-11, for seeking amendment in the plaint by way of considering the affidavit and the documents, as tendered by him in his evidence, as a part of the pleadings therein and by adding the words "this is for assessing the jurisdiction of the Hon'ble Court only" in Para No.24 and by replacing the word 'damages' in Paras No.1 & 3 in the prayer clause with words 'consequential relief' and also by substituting Para No.32 in the same with the following Para :-
"That a court fee of Rs 50/- is affixed for the relief of declaration and the court fee of Rs 50/- (Rs fifty only) for the relief of mandatory injunction and the value of the suit for court fee is assessed as Rs 1000/-Page 19 of 24
(Rs one thousand only) because the consequential relief for which the plaintiff will be eligible as per law, A. has not been assessed by this Hon'ble court, B. the case falls under the category 'C' of Section 7(iv) of the court fee Act.
accordingly, as per the law laid down in the case of case of 'State of Punjab Vs Dev Brat Sharma' by the Hon'ble APEX COURT where in the reference of the law laid down by the CONSTITUTIONAL BENCH in the case of S. RM.AR.RM. Ramanathan Chettiar by the Apex Court has been given, that ultimately it would be the actual relief granted which would determine the court fee, the plaintiff undertakes to make good the deficient court fee as per the actual relief that would be granted by this Hon'ble court, as such a court fee of Rs 50/- (Rs fifty only) is affixed at this stage. A court fee of a sum of Rs 50/- (Rs fifty only) is affixed for future interest as well because the consequential relief has not been assessed by this Hon'ble court, the plaintiff undertakes to make good a deficient court fee as per the actual relief that would be granted by this Hon'ble court as ultimately it would be the actual relief granted which would determine the court fee".
and vide the impugned order, the trial Court has dismissed his above-mentioned application (Annexure P-11).
5. However, the above-raised contentions are devoid of any merit because as mentioned earlier, the issues had been framed in the afore- said Suit long back on 18.03.2021 and then, on 17.03.2022, the plaintiff had tendered his affidavit, along-with several documents, in his evidence while appearing as his own witness whereas he had moved the application, Page 20 of 24 Annexure P-11, on 09.02.2023. Meaning thereby that the trial had already commenced in the said Civil Suit before the filing of the above- said application. The verdict rendered by the Apex Court in Life Insurance Corporation of India (supra), is of no avail to the plaintiff because though, it has been observed therein that "all the amendments are to be allowed which are necessary for determining the real question in controversy provided these do not cause injustice or prejudice to the other side and this is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 CPC" but in the instant case, throughout in his afore-referred application, the plaintiff has not whispered even a single word to explain as to how the proposed amendments would be necessary for determining the real question in controversy between the parties.
6. Rather, as regards the prayer of the plaintiff for considering his affidavit and the documents tagged therewith, as a part of his pleadings/plaint, it is well settled that the evidence need not be pleaded in the pleadings. So far as his prayer for replacing word 'damages' with words 'consequential relief' in Paras No.1 and 3 of the prayer clause and for the proposed amendments in Paras No.24 and 32 qua the valuation of the Suit for the purpose of court-fee, is concerned, the same would not be permissible in the circumstances when concededly, the application moved by the defendants under Order 7 Rule 11 CPC for seeking rejection of the plaint on the score of non-affixation of the proper court-fee on the same, is pending adjudication before the trial Court and rather, the above-mentioned proposed amendments seem to have been sought in view of the afore-said application, as filed by the defendants."
Page 21 of 246. The learned Senior Counsel relies on the decision of the Supreme Court in Kamaleshwar Kishore Singh v. Paras Nath Singh and others; (2002) 1 SCC 304, paragraph 8 is reproduced herein:
"8. It is well settled that the court fee has to be paid on the plaint as framed and not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of court fee or unless there be a provision of law requiring the plaintiff to value the suit and pay the court fee in a manner other than the one adopted by the plaintiff. The court shall begin with an assumption, for the purpose of determining the court fees payable on plaint, that the averments made therein by the plaintiff are correct. Yet, an arbitrary valuation of the suit property having no basis at all for such valuation and made so as to evade payment of court fees and fixed for the purpose of conferring jurisdiction on some court which it does not have, or depriving the court of jurisdiction which it would otherwise have, can also be interfered with by the court. It is the substance of the relief sought for and not the form which will be determinative of the valuation and payment of court fee. The defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. If the plaintiff is ultimately found to have omitted to seek an essential relief which he ought to have prayed for, and without which the relief sought for in the plaint as framed and filed cannot be allowed to him, the plaintiff shall have to suffer the dismissal of the suit. These principles of law were overlooked by the trial court in passing the impugned order which was Page 22 of 24 put in issue before the High Court. We are further of the opinion that though the revision preferred by the plaintiff was directed against the order dated 1-3-1997, the real question arising before the High Court was to find out whether the suit was properly valued and proper court fee was paid thereon in accordance with law. While doing so if the High Court was required to examine the correctness or otherwise of the order dated 17-12-1996 it should not have felt inhibited from doing so. In the facts of the present case we are clearly of the opinion that the High Court was not justified in dismissing the revision on the ground that the order dated 1-3-1997 was an order correcting a clerical or typing error only."
7. Referring to the proposed amendments as contained in the amendment petition, it is submitted by the learned Senior Counsel that there is no reference to the Gujarat suit filed and pending before the High Court in the plaint. It is for the first time being introduced in the form of amendment. The learned Senior Counsel refers to paragraphs 7, 8, 10 and 15 of the I.A. for amendment as well as schedule paragraph 7 to submit that the proposed amendments shall result in change of nature and character of the suit i.e. pending before this Court. It is submitted that the indulgence shown by the Court for payment of Page 23 of 24 court fee by the time extended as directed should not be extended to the extent that the suit is allowed to remain without being dismissed. Modification sought for cannot come into the aid of the plaintiff for not paying the court fee. It is also submitted referring to the I.A. No. 16 of 2025 filed by the plaintiff that there has been no prayer for extension of time to file the court fee.
8. Mr. Mukherji provides a comparative table of the pleadings in the original plaint along with I.A. Nos.6, 7 and 10 of the 2025 compared with the pleadings in the I.A. No.15 of 2025 seeking amendment, I.A. No.16 of 2025 for modification of the order dated 19.03.2025.
9. Paucity of time intervenes. To continue further hearing the matter shall be listed tomorrow (08.05.2025) and will retain its position in the cause list along with other left over matters.
(M.S. Sahoo) Judge Signaturejyostna/Radha Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: OHC Date: 12-May-2025 18:59:10 Page 24 of 24