Delhi District Court
E-Block vs Mrs. Kesha Devi on 5 August, 2021
IN THE COURT OF MS. RISHIKA SRIVASTAVA, LD. CIVIL JUDGE
(WEST), TIS HAZARI, DELHI
CS. NO. 610322/16
Raj Kumar
S/o late Sh. Tulsi Ram
R/o E-79 (GF) Nihal Vihar
E-Block, New Delhi ...... Plaintiff
Vs.
1. Mrs. Kesha Devi
W/o Late Sh. Tulsi Ram
2. Ram Avtar
3. Nannu Ram
4. Sunil
Defendant no. 2,3 and 4 S/o Late Sh. Tulsi Ram
All R/o E-79 Block-E
Nihal Vihar, New Delhi ........ Defendants
ORDER
05.08.2021
1. The present suit is for recovery of possession, perpetual injunction and mesne profit. The plaintiff and the defendant are related to each other as the defendant No.1 is the mother of the plaintiff and defendant No. 2,3 and 4 are his real brothers.
CS No. 610322/16 Raj Kumar Vs. Kesha Devi 1/13
Plaintiff's version:
2. In brief and without unnecessary details, the case of the plaintiff as stated in his plaint is that:-
(a) the plaintiff is the owner of the immovable property bearing No. E-79, Block-E, Nihal Vihar, New Delhi having purchased from his own funds;
(b) all the defendants are in possession of one room, kitchen, washroom on the ground floor of the aforementioned property (hereinafter referred to as 'suit property');
(c) he plaintiff had permitted the defendants to reside in the suit property on the assurance that they will hand over the vacant and peaceful possession upon the demand of the plaintiff;
(d) after the lapse of sometime the plaintiff requested the defendants to vacate the suit property and to hand over the possession to him but instead of vacating the property, the defendants started harassing him with the view to usurp the suit property;
(e) the defendant No.1 filed the false and frivolous petition under section 12 of the Protection of Women from Domestic Violence Act, 2005 in connivance with the other defendants wherein she alleged that the suit property was purchased by her husband i.e. deceased father of the plaintiff from his own funds;
(f) legal notice dated 23.07.2010 was served upon the defendants where they were asked to vacate the suit property but despite CS No. 610322/16 Raj Kumar Vs. Kesha Devi 2/13 that the defendants failed to comply and did not hand over the vacant possession of the suit property to the plaintiff;
(g) the defendants are threatening to create third party interest in the suit property;
(h) the value of the suit property is Rs. 2,00,000/- only and therefore, this Court has a pecuniary jurisdiction to try the present suit.
3. Therefore, the plaintiff was constrained to file the present suit for the following reliefs:-
(a) Decree of recovery of possession of the portion shown in Red in the site map of property bearing No. E-79, Block-E, Nihal Vihar, New Delhi;
(b) Decree for recovery of Rs. 5000/- per month on account of arrears of mesne profit from the date of institution of the suit till recovery of possession along with future and pendentlite interest @ 15% per annum;
(c) Decree of perpetual injunction restraining the defendants from creating third party interest in the portion shown in red in the site map of property bearing No. E-79, Block-E, Nihal Vihar, New Delhi.
Defendant's version
4. A common written statement was filed by all the defendants wherein it was contested that:-
CS No. 610322/16 Raj Kumar Vs. Kesha Devi 3/13
(a) the suit is not maintainable since the market value of the suit
property is more than Rs. 20,00,000/- which is beyond the pecuniary jurisdiction of this Court and because adequate Court fees has not been paid;
(b) the plaintiff has only relied upon certain agreement to sell, general power of attorney and will which are neither registered nor stamped and hence, the plaintiff has no title over the suit property;
(c) the deceased husband of defendant No. 1 had purchased the entire property bearing No. E-79, Block-E, Nihal Vihar, New Delhi from his own funds;
(d) since the plaintiff was his eldest son and he was illiterate, the property was purchased in his name in good faith;
(e) the defendants are the co-owners of the suit property and were never permitted by the plaintiff to reside in it and had never promised to vacate it on his demand;
(f) the plaintiff was not earning any money at the time of purchase of the entire house bearing No. E-79, Block-E, Nihal Vihar, New Delhi and was dependent upon his parents for his daily needs;
(g) the defendants are resident of first floor and the plaintiff is residing at the ground floor;
(h) The legal notice of the plaintiff was received by the defendants and the reply of the same were send on 25.08.2010;
CS No. 610322/16 Raj Kumar Vs. Kesha Devi 4/13
(i) The plaintiff has no authority to grant or revoke any license to
the defendants with respect to the suit property;
(j) The defendants have not threatened to create any third party interest in the suit property.
Replication:
5. The replication was filed by the plaintiff wherein the averments stated in the written statement were denied.
Issues:
6. Upon the completion of pleadings, the following issues were framed by the ld. predecessor of this court vide order dated 23.09.2013:-
1. Whether the plaintiff is entitled to the relief of possession, as prayed?OPP
2. Whether the plaintiff is entitled to the relief of recovery of mesne profit with interest, as prayed?OPP
3. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed?OPP
4. Whether the present suit has not been properly valued for the purpose of Court Fees and jurisdiction? OPP
5. Relief.
7. Thereafter, evidence was led by both the parties on the above-stated issues.
CS No. 610322/16 Raj Kumar Vs. Kesha Devi 5/13
Issue-wise findings:
Issue No. 4:
Whether the present suit has not been properly valued for the purpose of Court Fees and jurisdiction? OPP
8. Since the issue number 4 deals with suit valuation and the very jurisdiction of this court, it will be taken up first.
9. At the outset it is necessary to state that even though the case of the plaintiff is that the defendants were licensees, the suit cannot be treated as one for mandatory injunction for the reason that the plaintiff himself has not sought such relief and has opted to seek the relief of possession and also because this suit was not brought with promptitude after the termination of the alleged license in July 2010.
10. With respect to the relief of recovery of possession, in paragraph 16 of the plaint, the plaintiff has valued the suit at Rs 2,00,000/- for the purposes of pecuniary jurisdiction and court fees on the basis that the prevalent market value of the suit property at the time of institution of the suit was Rs 2,00,000/-. For the relief of permanent injunction, the suit has been valued at Rs 130/-. On the other hand, the defendants have contested in their written statement that the market value of the suit property was more than Rs 20,00,000/- and hence this suit is outside the pecuniary jurisdiction of this Court.
11. Ld. counsel for the plaintiff has argued that since the suit property comprises of only one floor in a house, the proportionate market value of the suit property was only Rs 2,00,000/- at the time of institution of the suit. On the other hand, the ld. counsel for the defendant has CS No. 610322/16 Raj Kumar Vs. Kesha Devi 6/13 opposed this submission on the ground that the plaintiff himself has admitted that the market value of the suit property was 20-25 lacs at the time of institution of the suit. He has also relied upon the circle rates prevalent at that time to argue that the market value of the suit property was more than Rs 3,00,000/- which is the pecuniary jurisdiction of this Court. He has submitted that the suit property falls within a category 'G' locality and hence its value as per the circle rate was Rs 8,95,514.20/-. Ld. counsel for the plaintiff has resisted this argument on the ground that the defendant has wrongly calculated the market value of the entire property whereas the suit property in the present dispute is only one floor out of the two floors constructed on property bearing no. 79, Block E, Nihal Vihar, Delhi.
12. Now, the relevant provisions of law with respect to court fees and suit valuation must be considered. Section 7(v)(e) of the Court Fees Act, 1970 provides that for the purpose of court fees in a suit for possession of a house or garden, the valuation shall be according to the market value of such house or garden.
13. While the plaintiff has averred in his plaint that the suit property had a market value of Rs 2,00,000/- only at the time of institution of the suit, he has not produced any direct evidence in support of this. Agreement to sell Ex PW-1/1, GPA Ex PW-1/2 and receipt Ex PW-1/3 which have been relied upon by the plaintiff are all dated 6th October 1998 while this suit was instituted in January 2013 i.e. almost 14.5 years later. Thus, the consideration mentioned therein cannot be considered as proof of market value prevalent at the time of institution of the suit, especially given the steep rise in prices of immovable property CS No. 610322/16 Raj Kumar Vs. Kesha Devi 7/13 witnessed during the intervening period of 14.5 years. Moreover, not only has the plaintiff/PW-1 failed to lead any evidence, in his cross- examination dated 29.08.2016, he has made a clear and unambiguous admission that "at the time of institution of the present suit, the value of the suit property was Rs 20-25 lakhs". Thus, on the basis of the unequivocal admission, this issue is liable to be decided against the plaintiff.
14. Additionally, with respect to the applicable circle rates, it is undisputed that the suit property is a residential property located in Nihal Vihar which is a category 'G' locality, and that a minimum land rate of Rs 31,510/- per square meter was applicable when the suit was instituted, The total area of the land upon which the suit property is made is 28.428 square meters (34 square yards) and there are two floors on it. Thus, the minimum cost of land (proportionate area of land under sale i.e. 14 sq. meters X land rate per unit) is Rs 4,41,240/-. A feeble attempt has been made by the plaintiff to argue that since he is allowed to construct up to four floors, the circle rate should be calculated accordingly. However, since the plaintiff has abysmally failed to show that he is authorized to construct up to four floors, this argument does not merit further consideration.
15. Moreover, the plaintiff has not provided any information as to the plinth area and the cost of construction, which are also relevant factors for determining the market value of a property. It must also be borne in mind that the circle rate only provides the minimum rate at which a property must be valued for the purpose of collection of stamp duty and the actual market value may be more. Since the minimum rate of CS No. 610322/16 Raj Kumar Vs. Kesha Devi 8/13 land as per the circle rates applicable is Rs 4,41,240, it is not possible for the actual market value of the suit property to be Rs 2,00,000/-.
16. Thus, given the categorical and unequivocal admission of the plaintiff that the market value of the suit property was between Rs 20,00,000 to Rs 25,00,000/- at the time of institution of the suit and given the circle rate of the suit property, this Court has no hesitation is holding that the present suit has not been valued property as per Section 7(v) of the Court Fees Act and that the plaintiff has not paid the adequate court fees.
17. With respect to suit valuation for the purpose of determining jurisdiction, the Suit Valuation Act, 1887 does not contain any express provision on valuation of a suit for possession of a house, and as noted in the Delhi High Court Rules Volume 1, Chapter 3: Valuation of Suits, the same has been left to judicial decision. As per the law evolved by way of a catena of judgments dealing with suit for possession of a house, the market value of the house is the valuation for the purpose of jurisdiction as well in a suit for possession of a house. Even the plaintiff sought to value the present suit at market value for the relief of possession. Since this Court has already arrived at the finding that the market value of the suit property is more than Rs 3,00,000/-, this Court finds that it has no pecuniary jurisdiction to try the present suit.
18. Issue number 4 is decided against the plaintiff and in favour of the defendants.
CS No. 610322/16 Raj Kumar Vs. Kesha Devi 9/13
Issues no. 1, 2, 3 and 5:
19. Now that this Court has arrived at the finding that it does not have the pecuniary jurisdiction to decide the present suit, the next question is whether the Court should decide the remaining issues or should return the plaint under Order VII Rule 10A CPC. Ld. counsel for the defendant has argued that once the court arrives at the finding that it has no jurisdiction to try a suit, the only option available to it is to return the plaint under Order VII Rule 10A CPC and not to decide the remaining issues. No argument has been advanced by the ld. counsel for the plaintiff on this aspect.
20. This question has been answered by the Hon'ble High Court of Delhi in Alphabetics Pvt Ltd v. Lohia Jute AIR 2004 Delhi 374 wherein it held:
"In terms of Order 14 Rule 2 CPC once a suit has been tried on all the issues, it is required of the Court to give findings on all such issues. However, in my opinion, the facts and circumstances of a case may warrant the court to refrain itself from giving findings on all the issues as it may prejudice the trial of the case in the Court where it is filed after the plaint is returned. Once the court comes to a finding that it had no jurisdiction to try the suit, in my opinion, it would have been an exercise in futility to decide other issues on the merits of the case. The findings on the other issues after the plaint was directed to be returned for presentation in appropriate court would have prejudiced one of the parties and the trial court has rightly not given findings on other issues framed by it." (emphasis added) CS No. 610322/16 Raj Kumar Vs. Kesha Devi 10/13
21. This view found was endorsed and reaffirmed by the Hon'ble High Court of Delhi in Masyc Projects Pvt Ltd v. Nilachal Iron and Power Ltd. (2019) 264 DLT 516. The judgment of the Hon'ble High Court of Bombay in Mumbai International Airport Pvt. Ltd. v. Edward and ors. (2014) 3 CCC 320 also lends support to this view. It was held by the Hon'ble High Court of Bombay that:
"No doubt in the instant case the issues which are raised are the issues which go to the root of the matter and can be said to be the issues which impinge upon the jurisdiction of the Court to entertain the Suit. However, the issue of pecuniary jurisdiction can be said to be the defining issue as the other two issues can be only tried by the Court which has the jurisdiction to entertain the Suit. This is a case where three issues which can be said to be the issues of jurisdiction were raised and the issue of pecuniary jurisdiction was not a stand alone issue. Hence once the trial Court came to a conclusion that it did not have the pecuniary jurisdiction to entertain the Suit it ought not to have proceeded to decide the other two issues, rendering a decision on the other two issues when it did not have the pecuniary jurisdiction, would result in the said issues being decided by a Court which is coram non judice."(emphasis added)
22. The Hon'ble High Court of Bombay had taken a similar view in Shreyans Industries v. State of UP 2004 (1) MhLj 50 where it held:
Once the Court comes to the conclusion that it has no jurisdiction to entertain the suit, the only course open to the Court is to return the plaint to the plaintiff to be presented in the competent Court and any finding recorded on merits of the matter would be of no CS No. 610322/16 Raj Kumar Vs. Kesha Devi 11/13 consequence. If plaint is returned for want of jurisdiction and the same Court also records findings on merits, such findings are without jurisdiction and null and void. Similarly, the very purpose of returning the plaint for want of jurisdiction would be frustrated and that would also foreclose the issue in the plaint, which was returned to the plaintiff to be presented to the competent Civil Court.
23. Thus, upon consideration of the abovementioned judgments and the law laid down therein, this Court finds that it cannot proceed to decide the remaining issues as any finding arrived at would be null and void, may prejudice the appropriate court of jurisdiction and will be an exercise in futility. The plaint is liable to be returned for presentation before the appropriate court having jurisdiction to try the present suit.
24. It is amply clear from the material on record that the plaintiff was aware that the actual market value of the suit property was much beyond the pecuniary jurisdiction of this court. He was also aware that the defendant had taken an objection regarding the pecuniary jurisdiction of this court in his written statement. Despite that, the plaintiff chose to pursue this litigation for multiple years. Thus, a cost of Rs 3,000/- is imposed upon him. This cost is payable by him to the defendants within one week.
25. In accordance with Order VII Rule 10A, the ld. counsel for the plaintiff has been informed about this finding of the court. He has sought time to obtain further instructions from the plaintiff with regards to moving the appropriate application under Order VII Rule 10A(2) CPC.
CS No. 610322/16 Raj Kumar Vs. Kesha Devi 12/13
26. Put up for apprising the court as to the decision taken by the plaintiff with respect to moving the application under Order VII Rule 10A(2) CPC on 06.08.2021 at 02.00 p.m. Announced in the Open Court (Rishika Srivastava) through Cisco Webex CJ (West)-03/Delhi 05.08.2021 CS No. 610322/16 Raj Kumar Vs. Kesha Devi 13/13