Delhi High Court
Shri Niren Nagpal vs Shri Nitin M. Nagpal on 24 July, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P.No. 5/2014
% 24th July , 2014
SHRI NIREN NAGPAL ......Petitioner
Through: Mr. Ashish Kapur, Advocate.
VERSUS
SHRI NITIN M. NAGPAL ...... Respondent
Through: Mr. Virendra Rawat, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This revision petition under Section 151 Code of Civil Procedure, 1908 (CPC) is filed by the defendant/petitioner impugning the order of the trial court dated 14.10.2013 by which the trial court has dismissed the application under Order 7 Rule 11 CPC filed by the defendant/petitioner. In the application under Order 7 Rule 11 CPC, the defendant-petitioner claimed that the suit was not properly valued for the purpose of court fee and jurisdiction because as per circle rates, the suit property was worth more than Rs.41 crores and consequently, the suit which C.R.P.5/2014 Page 1 of 5 is valued at Rs.11,36,400/- for declaration alongwith another valuation of Rs.130 for injunction is not correct and the plaint is under valued.
2. The subject suit is a suit between two brothers. As per the plaint, plaintiff and defendant who are brothers are said to have purchased six bighas of land i.e 6048 sq. yards by means of a registered sale deed dated 11.3.1983. The case of the respondent/plaintiff was that after constructing a boundary wall both the brothers partitioned the land in two portions and constructed two separate residential units which are separately assessed for house-tax in the name of each of the brothers. Respondent-plaintiff claims to be an exclusive owner and in possession of his share. The defendant- petitioner has also constructed his house on which he is being assessed separately for the purpose of house-tax. The subject suit came to be filed because defendant-petitioner was creating hurdles in repairing the property owned by the respondent-plaintiff.
3. By an earlier order dated 8.2.2012, the trial court had directed that the respondent-plaintiff must properly value the suit property for the purpose of court fees and jurisdiction because the relief of declaration cannot be valued at Rs.200 and court fee of Rs.20 paid inasmuch as, no plausible reason was given by the respondent/plaintiff as per the trial court for valuing C.R.P.5/2014 Page 2 of 5 the relief which is not merely for declaration simplicitor but there is a consequential relief of injunction.
4. No doubt, the order dated 8.12.2012 is final, however, I note that the same proceeds on an incorrect legal basis. Once the respondent- plaintiff is in exclusive possession of his property which is said to have come to his share after partition, and both the parties are assessed separately for their portions in the house tax assessment proceedings, really the relief of declaration and injunction are independent of each other. If the respondent- plaintiff was not in possession or respondent-plaintiff needed necessarily to claim declaration without which he could not have obtained the relief of injunction, only then the relief of injunction would be consequential to the relief of declaration. If the relief of injunction can be independently claimed then the relief of injunction is not consequential to the relief of declaration. Once the respondent-plaintiff avers in the plaint that he is in actual physical possession of his half share of the property pursuant to a partition, and that the respondent-plaintiff has constructed his own residential portion on his property, and that the petitioner-defendant has constructed his residential property on his own share, and the factum with respect to two separate properties on two separate portions is not disputed in the written statement, C.R.P.5/2014 Page 3 of 5 then, it was not even required to direct the respondent-plaintiff to re-value his suit for the purpose of court fees and jurisdiction inasmuch as reliefs of declaration and injunction in the facts of this case are independent and can be claimed independently of the other. Even taking that the earlier order dated 8.2.2012 as final, yet, once the admitted facts are that there is a division of the property and separate portions have been constructed by both the brothers and both of them are in possession of the respective portions and house tax is being assessed separately, therefore, respondent-plaintiff is entitled to put any reasonable valuation which he thinks on the relief of declaration and injunction. In doing so, the respondent-plaintiff has committed no illegality and therefore, though not for the reasons as stated in the impugned order, but for the reasons which I have given above, no fault can be found in the conclusion of rejecting the application under Order 7 Rule 11 CPC.
5. In view of the above, this revision petition is dismissed with costs of Rs.50,000/- considering that not only the respondent has had to incur costs of this litigation, parties are of that strata who can afford and so must pay costs. Costs shall be paid as condition precedent to the C.R.P.5/2014 Page 4 of 5 petitioner/defendant pursuing his defence in the trial court. Costs be paid within a period of six weeks from today.
JULY 24, 2014 VALMIKI J. MEHTA, J.
ib
C.R.P.5/2014 Page 5 of 5