Delhi District Court
Mca No.01/09 vs Sh. Prabhat Kumar Singh & Ors on 27 April, 2009
1/47
IN THE COURT OF SHRI RAKESH TEWARI:
ADDL. DISTRICT JUDGE-19: CENTRAL DISTRICT,
TIS HAZARI COURTS : DELHI.
1. MCA No.01/09
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Prabhat Kumar Singh & Ors. ....Respondents
2. MCA No.02/09
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Vinod Gupta & Ors. . ...Respondents
3. MCA No.03/09
Syed Iqbal Ahmad ....Appellant
Versus
Smt. Vineeta Gupta & Ors. ....Respondents
4. MCA No.04/09
Syed Iqbal Ahmad ....Appellant
Versus
Smt. Sangita Rana & Ors. ....Respondents
5. MCA No.05/09
Syed Iqbal Ahmad ....Appellant
Versus
Smt. Veer Mati Rana & Ors. ....Respondents
2/47
6. MCA No.06/09
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Jai Prakash Rana & Ors. ....Respondents
7. MCA No.07/09
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Rajiv Rana & Ors. ....Respondents
8. MCA No.08/09
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Rajesh Rana & Ors. ....Respondents
9. MCA No.09/09
Syed Iqbal Ahmad ....Appellant
Versus
Smt. Sangita Rana & Ors. ....Respondents
10. MCA No.10/09
Syed Iqbal Ahmad ....Appellant
Versus
Smt. Veermati Rana & Ors. ....Respondents
3/47
11. MCA No.11/09
Syed Iqbal Ahmad ....Appellant
Versus
Smt. Prem Wati & Ors. ....Respondents
12. MCA No.12/09
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Ram Niwas Aggarwal & Ors. ....Respondents
13. MCA No.13/09
Syed Iqbal Ahmad ....Appellant
Versus
Smt. Vineeta Gupta & Ors. ....Respondents
14. MCA No.14/09
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Som Nath ....Respondent
15. MCA No.12/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Pawan Kumar Jain & Anr. ....Respondents
4/47
16. MCA No.13/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Vishal Gupta & Anr. ....Respondents
17. MCA No.14/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Satpal Malhotra & Ors. ....Respondents
18. MCA No.15/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Pradeep Jain & Anr. ....Respondents
19. MCA No.16/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Vinod Aggarwal & Anr. ....Respondents
20. MCA No.17/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Subhash Aggarwal & Anr. ....Respondents
5/47
21. MCA No.18/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Ashok Kumar & Anr. ....Respondents
22. MCA No.19/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Ramesh Aggarwal & Ors. ....Respondents
23. MCA No.20/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Sanjeev Kumar & Anr. ....Respondents
24. MCA No.21/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Rajesh Gupta & Anr. ....Respondents
25. MCA No.22/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Mahavir Prasad Gupta ....Respondent
6/47
26. MCA No.23/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Kailash Singhal & Ors. ....Respondents
27. MCA No.24/08
Syed Iqbal Ahmad ....Appellant
Versus
Sh. Rahul Kashyap, Advocate & Ors. ....Respondents
28. MCA No.25/08
Syed Iqbal Ahmad ....Appellant
Versus
Smt. Neha Bajaj & Ors. ....Respondents
Date when the case reserved for order: 04.04.2009
Date of Judgment: 27.04.2009
ORDER
1. By this common order, I shall dispose of the said 28 appeals against the impugned order dated 23.2.2008 passed by the Ld. Civil Judge whereby the application of the defendants under Order 7 Rule 11 CPC was allowed and the plaint was returned to the plaintiff to be presented before the court having jurisdiction under Order 7 Rule 10 CPC. 7/47
2. At the very outset, it is pertinent to mention that the present appellant filed some suits i.e. in appeal numbers 1/09, 11/09, 12/08, 13/08, 14/08, 15/08, 16/08, 17/08, 18/08, 19/08, 22/08, 23/08 and 25/08 before the Ld. District Judge, Delhi, who assigned the same for disposal to the then concerned Ld. ADJ, Delhi, who in turn vide his order dated 12.5.2007 held that the said suits were overvalued and were to be tried by the Ld. Civil Judge and directed the parties to appear before Ld. District Judge, Delhi, who in turn transferred the said suits to the Ld. Civil Judge, and thereafter the present appellant filed some more suits in the said court of Ld. Civil Judge which are subject matter of the appeals bearing appeal number 2/09, 3/09, 4/09, 5/09, 6/09, 7/09, 8/09, 9/09, 10/09, 12/09, 13/09, 14/09, 20/08, 21/08 and 24/08 who again, vide the said impugned order, returned the suits under Order 7 Rule 10 CPC.
3. There is only one issue involved in all these present appeals as to whether the Ld. Civil Judge vide the said impugned order dated 23.2.2008 has rightly returned the suits to the plaintiff or not, and as to whether he was justified in holding that the Ld. Civil Judge was not having pecuniary 8/47 jurisdiction and the suits have been under valued.
4. Since this is the only question involved in these appeals, I shall confine myself to the brief facts giving rise to the present appeals qua the said question only. The case of the present appellant in the suits filed by him is that he is the absolute owner of the property measuring around 19,654.5 sq yds comprising khasra number 355/1, 355/2 and 359/5, situated in the Revenue Estate of Village Malik Pur Chhaoni, Tehsil Model Town, Delhi, and the said property belonged to his maternal uncle namely late Sh. Mubashar Ali and to his mother namely Mst. Samad-un-Nisa Begum and after their death, the property devolved on the plaintiff in accordance with the law of inheritance and the names of the said predecessors-in-interest of the plaintiff were recorded in the Jamabandi and the other revenue records.
5. It has been further averred in the plaints as well as in the appeals that the respondents/defendants are in unauthorized occupation of the property in question on the basis of forged and fabricated documents and are not having any right or title in their favour. Hence, the suits for declaration, possession, permanent prohibitory injunction 9/47 and mandatory injunction were filed against them for claiming the respective plots of land in favour of the different respondents/defendants as at present there is an unauthorized colony by the name of Mahendru Enclave wherein the said plots have been purchased by the respondents/defendants although the said plots were the part of the said property belonging to the appellant.
6. While giving the valuation of the suits in different paras in different suits, the basis of the valuation was mentioned by the appellant and the said para is reproduced by me below:
"That the similar land in the
surrounding area of Village Burari
has been acquired by the
Government for public purpose vide
Award No. 02/LAC/N/05-06 dated
07.01.2006 and the
compensation/market value has
been assessed at Rs. 15.70 Lacs per
acre and the same value has been
adopted by the plaintiff for the
present suit land."
10/47
7. On the other hand, Ld. Counsel for the
respondents/defendants has filed the objections that the suits have been grossly undervalued and which is manifestly unjust and as per the Delhi Stamp (Prevention of undervaluation of Instruments) Rules 2007 under the Indian Stamp Act, 1899, the locality named as Mahendru Enclave at Sl. No. 966 has been placed under Category-D and the Category-D as per the said rules provides the rate @ Rs. 21,800/- per sq mtr. and the Tehsil Model Town is situated at a distant place from Village Burari of which reference has been made by the appellant as the basis of his valuation of the suits which is clearly unlawful and besides other grounds as raised in the written statements and otherwise in the applications under Order 7 Rule 11 CPC before the Ld. Civil Judge, it is objected that the suits have not been properly valued and th court of Ld. Civil Judge which passed the impugned order, was not having pecuniary jurisdiction to entertain and try the suits.
8. I have heard Ld. Counsels for the parties, perused the record of the appeals and that of the trial court and have also gone through the written submissions and judgments filed on 11/47 behalf of both the parties.
9. Ld. Counsel for the plaintiff/appellant has raised mainly two arguments. The first argument deals with the question that the Ld. Civil Judge was having no power to go against the order of Ld. ADJ dated 12.5.2007 whereby the valuation of the suit was fixed at Rs. 1,20,460/- for the purposes of court fee and jurisdiction and second contention was with regard to the valuation of the suit on its own merits.
10. Let me deal with his first contention as to whether the order dated 12.5.2007 passed by the then Ld. ADJ was binding on the Ld. Civil Judge or not as the said contention raises so many questions before me as to whether the Ld. ADJ was justified in sending the suits to the Ld. District Judge for transfer to the court of the Ld. Civil Judge and as to whether the Ld. Civil Judge was bound by the said order of the Ld. ADJ or as to whether the Ld. Civil Judge was justified in passing his independent order on the issue of pecuniary jurisdiction of his own and afresh and as to whether this appellate court is bound by the order of the Ld. ADJ dated 12.5.2007.
12/47
11. With due respect to the Ld. ADJ, I am conscious of the fact that while deciding the said questions and the law as laid down by the Hon'ble Superior courts, some observations under the law may go against the order of the Ld. ADJ and certainly I am not sitting in appeal over the said order dated 12.5.2007 passed by the then Ld. ADJ.
12. If the Ld. ADJ was of the opinion that the suits were overvalued and were bound to be returned to be tried by the Ld. Civil Judge and the Ld. ADJ was having no pecuniary jurisdiction to entertain the suits, the Ld. ADJ should have returned the suits under Order 7 R 10 CPC and he could not sent it to the Ld. District Judge as was done vide order dated 12.5.2007. However, Ld. District Judge was within his powers under Section 24 of the CPC to have transferred the suits to be tried by the court having proper jurisdiction. It is to be noted at the outset that the legal status of the post of Ld. District Judge qua the other Ld. Additional District Judges' is one that of "first among the equals" but the only exception is Section 24 of the CPC wherein it is mentioned in sub clause (3)(a) that the court of additional and assistant judges shall be deemed to be subordinate to the Ld. District 13/47 Judge. As such, the Ld. ADJ should have returned the suits to the plaintiff/appellant instead of sending it to the Ld. District Judge. I am repeating this aspect because it will have its own effect on the merits of the issue involved before me in these appeals, as discussed below and this was the exact situation before the Hon'ble High Court of Delhi in the case titled Sh. Rail Chand Vs. Sh. Alal Chand and others reported as ILR (1978) I Delhi page 229 wherein it was specifically held that although the Commercial Sub- Judge was not empowered to direct the placing of the file before the District Judge for transfer and he had no jurisdiction to direct the file to be placed before the District Judge for transferring it to a competent Court, but the Hon'ble High Court in exercise of its power under Section 24 and in the circumstances of the said case directed the transfer because substantial proceedings in the trial of the suit involved in the said case had already taken place.
13. Judging in the light of the said law laid down by the Hon'ble High Court of Delhi, in the present case it was very initial stage when this preliminary issue of pecuniary jurisdiction was raised and as such the Ld. ADJ was having 14/47 no jurisdiction to direct the file to be placed before the Ld. District Judge for transferring the same to the Ld. Civil Judge.
14. Another reference can be made of the case titled Narinder Kumar Soni Vs. M/s Sun Shine Roadways and others reported as AIR 1999 Delhi 189 where in a case of over valuation of the suit Hon'ble High Court of Delhi directed the suit to be returned to the plaintiff to be presented to the proper court.
15. Now the questions arises as to whether the Ld. Civil Judge was justified in reopening the issue of pecuniary jurisdiction of the court and as to whether he was bound by the judgment of the Ld. ADJ dated 12.5.2007 and answers to these questions will again depend upon the answer to a question as to whether the suits before the subsequent court dealing with the same after return of the suits, are the continuation of the original suits so as to operate the bar of re-agitating an issue as an issue estopple or res-judicata or the binding nature of the order of the superior courts in the present case.
15/47
16. The said questions have been dealt by different Hon'ble High Courts of India. First of all, I would like to refer to an interesting case, typical in its nature which arose before the Hon'ble Gujarat High Court in a case titled Sugrabai Vs. Ibrahim Alihusein Zabnawala reported as 1999 (1) Current Civil Cases 355 (Guj.) wherein the opening words of the judgment of the Hon'ble High Court of Gujarat were as follows:
"This is a peculiar and unfortunate case of the plaint being returned successively by the Senior Division Court to the Junior Division Court and the Junior Division Court to the Senior Division Court and again to the Junior Division Court".
17. It is necessary to reproduce the facts of the case and holding of the said judgment in greater details. In the said case before Hon'ble Gujarat High Court, a special civil suit was filed in the court of Ld. Civil Judge, Senior Division on 19.9.1991 wherein the claim for jurisdiction was mentioned at Rs. 29,500/- and on 23.9.1991, the senior Division Court passed the order that the suit is returned for presentation to 16/47 the proper court in Dahod Civil Court, Junior Division under Order 7 R 10 CPC and the plaint was actually returned on 3.10.1991 and was presented to the Junior Division Court on 4.10.1991 and was registered as Regular Civil Suit and on 9.10.1991 the Junior Division Court returned the plaint to the plaintiff on the ground that the value of the subject matter of the immovable property was Rs. 29,500/- exceeding the limit of pecuniary and jurisdiction of the Junior Division Court. Against the order of the Junior Division Court a Misc. Civil Appeal was preferred to the District Court on 28.10.1991 which was dismissed by the District Court on 24.12.1991 confirming the order of the Junior Division Court returning the plaint for presentation to the Senior Division Court and again the plaint was presented to the Senior Division Court on 4.1.1992 which was not registered and ultimately on 11.11.1992, the Senior Division Court again returned the plaint to the plaintiff for presentation to the Junior Division Court on the ground of res-judicata because, the earlier order of the Senior Division Court returning the plaint for presentation to proper court was not challenged and set aside.
17/47
18. It is further mentioned in the said judgment before Hon'ble Gujarat High Court that this had created a very peculiar situation and that the Junior Division Court's order confirmed by the District Court on the ground that the Junior Division Court has no jurisdiction to hear because the suit is valued at more than Rs. 20,000/- and all the said orders were challenged before the Hon'ble Gujarat High Court by way of the said petition and the Hon'ble High Court of Gujarat came to the conclusion that impugned order dated 29.9.1991 passed by the Senior Division Court returning the plaint was quashed and set aside and the plaint and the suit were directed to be restored to the file of the Senior Division Civil Judge, Godhra for disposal in accordance with law and the subsequent orders of the Junior Division Court returning the plaint to the Senior Division Court and the District Court confirming the same orders were held correct in law and the last order dated 11.11.1992 of Senior Division Court was also set aside which again returned the plaint for presentation to the Junior Division Court on the ground that the earlier order dated 23.9.1991 had become res-judicata. 18/47
19. In the case titled Thadi Chandrayya and others Vs. Vaitla Seethanna and another reported as AIR 1940 Madras 689 of Hon'ble Madras High Court, the Division Bench of the said Hon'ble High Court was dealing with a situation wherein the original plaint was filed within time but for want of pecuniary jurisdiction was returned by the court for presentation to proper court and that the plaintiff with a view to bringing the claim within jurisdiction amended the plaint by striking out part of his claim and represented it to the same court and that the claim on the date of representation had become time barred and the court allowed the amendment and approved the plaint treating it as a continuation of the original plaint and in these circumstances it was held by the Hon'ble Division Bench of the said High Court that a court which had no jurisdiction could not pass orders in the suit beyond directing the plaint to be presented to the proper court and that the suit must be deemed to have been instituted on the date of representation of the amended plaint which the court had jurisdiction to accept and was therefore barred 19/47 and that having deliberately under-valued his relief in the first instance the plaintiff could not claim the benefit of Section 14 and Section 49 of the Limitation Act.
20. In the case titled Ramdhari Lal and others Vs. Uday Narayan and others reported as AIR 1957 Patna 324 of Hon'ble High Court of Patna, a Division Bench of the said Hon'ble High Court held that before returning the plaint under Rule 10 of Order 7 CPC, it is enough for the court to find that it has no jurisdiction to entertain the plaint filed before it and that whether other courts have jurisdiction or not is not the concern of the court acting under Order 7 Rule 10 for the simple reason that a court without jurisdiction cannot determine any matter and it was further held that if the plaint returned from one court is filed in another court which has no jurisdiction also to entertain that plaint, it will be a matter for decision by that court and courts superior to it.
20/47
21. Further, Hon'ble Calcutta High Court in the case titled Mohini Mohan Das and others Vs. Kunjabehari Das and others reported as AIR (30) 1943 Calcutta 450, a Division Bench of the said Hon'ble High Court held that "where the plaint is returned, the hearing should begin afresh and not proceed from stage it was returned and that when a plaint is filed in a new court after being returned by another, it is a new suit to all intents and purposes, and not merely a continuation of the old one and that it should not be ordered that the suit should be taken up from the stage at which it was left".
22. Again the Hon'ble Karnataka High Court in the case titled T.H. Yashwanta and others Vs. T.J. Jagadeesh and others reported as 1999 All India High Court Cases 2644 it was held that when the plaint was returned for want of pecuniary jurisdiction it was not a continuation of the suit in latter court and that the defendant would get a right to file fresh written statement and to adduce evidence in latter court even if he has filed written statement and has adduced 21/47 evidence in former court and the Hon'ble Karnataka High Court has referred to a case of the Hon'ble Apex Court titled Amarchand Inani Vs. Union of India reported as AIR 1973 SC 313 wherein it was held that after the plaint is presented in the proper court it is not continuation of a suit.
23. Judging in the light of the said law laid down by the said Hon'ble High Courts and Hon'ble Apex Court, the preponderance of judicial pronouncements is in favour of the view that the court getting the suit after its return is dealing with altogether new suit and there is no bar to allow re- agitation of any of the issues or questions or controversies between the parties and any other previous judgment or order on the same issue, question or controversy by any of the former courts is not binding on such a court which receives the suit after being proper court and it is still open for such a court to return the plaint to be presented to the proper court again after holding that it has also got no jurisdiction.
24. But the problem before me in this particular case is that the Ld. ADJ did not return the plaint under Order 7 R 22/47 10 CPC although the Hon'ble High Court of Delhi in Rail Chand's case (Supra) has already held that it should have been returned but in this case the Ld. District Judge at the request of the Ld. ADJ exercised his power under Section 24 CPC and as to whether the ratio laid down by the said judgments of the Hon'ble High Courts and Hon'ble Apex Court is applicable to the cases which were transferred under Section 24 CPC and this is the problem which is affecting the merits of this issue which I have referred to above.
25. Let me reproduce the relevant provisions in this regard of Section 24 CPC. Sub clause (2) of Section 24 CPC reads as follows:
"(2) Where any suit or proceeding has been transferred or withdrawn under sub-section(1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn." 23/47
26. From the bare reading of the said sub clause of Section 24 CPC, it is clear that subject to any special direction by the Ld. District Judge or the Hon'ble High Court the transferee court is at liberty either to start the hearing de-novo or proceed from the stage at which it was transferred or withdrawn.
27. I have gone through the order of the Ld. District Judge dated 12.5.2007 whereby the suits were withdrawn from the court of Sh. H.S. Sharma, the then Ld. ADJ, Delhi and were assigned to the concerned Ld. Civil Judge and there was no special direction to the transferee Ld. Civil Judge as to whether he has to proceed from the stage of the transfer of the cases or he was to try the suits de-novo and as such he was at liberty, as provided in Section 24(2) CPC to retry the suits. Once it is the position on the record, the said law laid down by the Hon'ble High Courts and particularly the typical case of the Hon'ble Gujarat High Court holding that earlier decisions qua the return of the plaint are not res- judicata, become applicable to the present case also and the Ld. Civil Judge, whose order has been challenged in these appeals was justified in hearing the said issue again and was 24/47 not bound by the order of the Ld. ADJ dated 12.5.2007 nor the said order of the Ld. ADJ was operative as res-judicata or issue estopple. I am fortified in my said view by a judgment of the Hon'ble Calcutta High Court reported as AIR 1997 Calcutta 340, also referred to below on another point.
28. Having holding so, the first contention raised by the Ld. counsel for the appellant deserves to be rejected having no merits at all.
29. Coming to the second contention with regard to the valuation of the suits on merits. It has been contended on behalf of the appellant that the suits filed by him were the suits for declaration and consequential relief and the case of the appellant is covered by Section 7(iv) of the Court-fees Act and not under Section 7(v) of the said Act. It has been further submitted on behalf of the appellant in his written submissions that the predecessors-in-interest of the plaintiff did not sell the property in question to anybody and that the legal status of the suit property is that the land in Khasra numbers from 351 to 359 of the Revenue Estate of Village Malik Pur Chhaoni was notified under Section 4 of the Land Acquisition Act vide notification dated 19.4.1964 and under 25/47 Section 6 of the said Act vide notification dated 30.11.1964 for the planned development of the Delhi City (including the suit property) and that the land in Khasra numbers 351, 352 and 353 was acquired vide award no. 44/79-80 dated 28.3.1980 @ Rs. 7500/- per bigha and the said Khasras are situated in the East of the property in question and that the land in Khasra number 356 was acquired vide award no. 44-A/79-80 dated 17.11.1980 @ Rs. 8000/- per bigha which was enhanced by the court of Ld. ADJ, Delhi @ Rs. 31000/- per bigha and thereafter the same was enhanced by Hon'ble High Court of Delhi @ Rs. 45000/- per bigha on 4.9.2000 and the Khasra number 356 is situated in the South of the property in question.
30. It has been further submitted on behalf of the appellant that the Land and Building department of Government of Delhi issued certificates to the appellant with the information that the land in Khasra numbers 354, 355, 357, 358 and 359 was deleted vide notification dated 11.1.1969 and the same was again notified under Section 6 of the Land Acquisition Act vide notification dated 16.1.1969 and that award and possession is not mentioned in the record 26/47 of the said department and the said land has not been released/withdrawn from the acquisition under Section 48(1) of the Land Acquisition Act and that the land in Khasra numbers 354, 355, 357, 358 and 359 stands acquired and the award has to be declared.
31. He has further submitted that under Section 7(iv) of the Court-fees Act, the liberty has been given to the plaintiff/appellant to value the suits as per the relief claimed and the respondents/defendants cannot interfere in the same by raising objections and ordinarily the valuation under Section 7(iv) of the Court-fees Act made by the appellant is to be accepted.
32. Ld. counsel for the appellant has vehemently argued against the impugned order wherein the Delhi Stamp (Prevention of undervaluation of Instruments) Rules 2007 was relied, on the ground that the said Rules came into force on 18.7.2007 and whereas the present appellant has filed the suits much prior to the said date and the reliance on the said Rules for determining the valuation of the suit property was patently illegal because a law which subsequently came into force cannot be made applicable to the proceedings which 27/47 were filed earlier in time.
33. On the other hand, Ld. Counsel for the respondents/defendants has submitted that the appellant was claiming his ownership on the basis of entry in the revenue record of his name for the alleged land in his ownership through inheritance which allegedly belonged to his predecessors-in-interest. He has vehemently argued that the plaintiff/appellant is not the owner of the plots or any other land in question as his name in the revenue record was deleted vide order dated 17.5.2007 by the concerned revenue authorities on the ground that there was a serious lapse on the part of the revenue officials who made the entry in the revenue records with regard to the ownership of the appellant and departmental proceedings were also initiated against the concerned Naib Tehsildaar, Kanungo and Patwari of the Model Town division in which jurisdiction the suit plots are situated and he has placed copies of the said orders of the revenue authorities on the record in the appeals and also the order dated 29.1.2007 whereby the direction was passed to declare the name of Syed Iqbal Ahmad, the appellant herein in the mutation record of the relevant khasra numbers as 28/47 null and void and the compliance of the same was also done as per Jamabandi and other records.
34. Ld. Counsel for the respondents/defendants has further contended that ordinarily the order passed by the court returning the plaint under Order 7 R 10 CPC must not be interfered with by the appellate/revisional courts and as there is no illegality in the impugned order returning the plaints, the appeals of the appellant may be dismissed.
35. Both the parties have also relied upon the Delhi Stamp (Prevention of undervaluation of Instruments) Rules 2007 and also on the judgment of the Hon'ble Supreme Court reported as AIR 1988 SC 1636.
36. First I shall deal with the judgments relied in support of his contentions, as mentioned above, by the appellant. He has relied upon a judgment of the Hon'ble Punjab and Haryana High Court titled Smt. Beena and others Vs. Rajinder Kumar and others reported as 2006(2) Recent Civil Reports 449 wherein the Hon'ble High Court was dealing with a situation where the plaintiffs filed a suit for declaration that sale deeds executed by the defendant were 29/47 null and void because the land was ancestral and was sold by defendant without any legal necessity and that remedy of possession was essentially a consequential relief flowing from and arising out of the declaration and as such court fee was required to be paid in terms of Section 7(iv)(c) of the Act.
37. The said judgment, on the face of it, is not applicable to the facts of the present case because here the respondents/defendants are stated to be purchasers of the land and did not execute any sale deeds as was the case before the said Hon'ble High Court.
38. Another judgment of the Hon'ble Punjab and Haryana High Court was relied upon by the appellant titled Bhupesh Kumar Sharma and Ors. Vs. Manohar Kumari & Ors. reported as AIR 2007 Punjab and Haryana 50 wherein a suit for declaration was filed on the ground that sale deeds executed by defendant are not binding on plaintiffs since defendant had no alienable interest in the suit property and it was held that consequential relief of possession sought is covered under Section 7(iv)(c) of the Court-fees Act and Section 7(v) of the said Act would not be applicable. 30/47
39. The said decision also does not come to the help of the appellant because there the claim was that defendant was having no alienable interest in the suit property and the plaintiffs were also having the ownership rights in the property and I fail to understand as to how the said judgment is applicable to the facts of the present case wherein as per own case of the appellant, the plots in question were sold to the respondents/defendants by third parties who were allegedly having no right to sell the same to the respondents herein.
40. Ld. counsel for the appellant has further relied on the judgment of Hon'ble Supreme Court titled Union of India Vs. Pramod Gupta (D) by L.Rs and others reported as AIR 2005 SC 3708 wherein it was held that award passed in respect of neighbouring land or land in same village has evidentiary value and another judgment of the Hon'ble Supreme Court has been relied titled Ranvir Singh and another Vs. Union of India reported as AIR 2005 SC 3467 wherein Hon'ble Supreme Court determined the criterias for valuation of the land which has been acquired under the 31/47 Land Acquisition Act.
41. In my considered opinion, there is no dispute about the said proposition of law laid down by the Hon'ble Supreme Court in the said judgments but at the same time it is also true that the standards and criterias and tests laid down for the determination of the compensation of the acquired land under the Land Acquisition Act are different from those as laid down under the Court-fees Act and the Suits Valuation Act.
42. Ld. counsel for the appellant has further relied upon a judgment of the Hon'ble Supreme Court titled Smt. Tara Devi Vs. Sri Thakur Radha Krishna Maharaj through Sebaits Chandeshwar Prasad and Meshwar Prasad and another reported as AIR 1987 SC 2085 wherein it was held by the Hon'ble Apex Court that a suit for declaration with consequential reliefs falling under Section 7(iv)(c), the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. 32/47
43. But it was further held by the Hon'ble Supreme Court in para 4 in the said judgment as under:
"It is only in cases where it appears to the Court on a 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."
44. I have discussed this aspect with regard to the present case below as to valuation of the appellant in the present case was arbitrary, unreasonable or the plaint was demonstratively undervalued.
45. Ld. counsel for the appellant has further relied upon a judgment of the Hon'ble Supreme Court titled Sri Rathnavarmaraja Vs. Smt. Vimla reported as AIR 1961 SC 1299 wherein it was held that as to whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State and the provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision 33/47 against an order determining the court fee payable.
46. There is no dispute about the premises of the law laid down by the Hon'ble Supreme Court in the said judgment but the question before me in these appeals is justification of the impugned order returning the plaint under Order 7 R 10 CPC and as per last line of the judgment of the Hon'ble Supreme Court reported as AIR 1961 SC 1299(Supra) it was held as under:
"In our view, the High Court grievously erred in entertaining revision applications on questions of court fee at the instance of the defendant, when no question of jurisdiction was involved."
47. Certainly, before me in these appeals question of jurisdiction of the Ld. Civil Judge is involved. Hence, the said judgment of the Hon'ble Supreme Court also does not come to the help of the appellant.
48. Ld. counsel for the appellant has further relied upon a judgment of Hon'ble Supreme Court titled Kamaleshwar Kishore Singh Vs. Paras Nath Singh and others reported as AIR 2002 SC 233 wherein it was held that it is substance 34/47 of relief sought for and not form which will be determinative of valuation and payment of court fees.
49. I have carefully gone through the judgment and in my considered opinion the said judgment of the Hon'ble Supreme Court of 2002 (Supra) rather goes against the contention raised on behalf of the appellant on the ground as in para 8 of the judgment Hon'ble Supreme Court held as follows:
"The court shall begin with an
assumption, for the purpose of
determining the court fee 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 fee 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 35/47 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."
50. Ld. counsel for the appellant further relied on a judgment of the Hon'ble Supreme Court titled R.P. Singh Vs. Union of India and others reported as AIR 2005 SC 4189 but the same was again a judgment on determination of the compensation to be awarded of the acquired land under the Land Acquisition Act and the same was certainly not a judgment on the issue as to how to determine the valuation for the purpose of court fee and jurisdiction.
51. Now I shall discuss about the common judgment relied by both the parties of the Hon'ble Supreme Court titled M/s Commercial Aviation and Travel Company and others Vs. Mrs. Vimla Pannalal reported as AIR 1988 SC 1636 and the Hon'ble Supreme Court, while dealing with a suit for rendition of accounts has held that in Section 7(iv) of the Court-fees Act the suits which are mentioned are of such nature that it is difficult to lay down any standard of valuation and thus, it has been left for the plaintiff to value 36/47 the suit according to the relief sought by him but where the plaintiff had, in suit for rendition of accounts, merely made a statement which she was not required to make, that she would be entitled to a huge amount but had not given in the plaint any material in support of the estimate, the statement would not constitute any objective standard of valuation or a positive material from which it could be said with any amount of certainty that the valuation of the relief for accounts should be at the sum mentioned in the statement.
52. From the said proposition of law as laid down by the Hon'ble Supreme Court in the said judgments, the position which emerges is that if the valuation of the suit is arbitrary, manifestly unjustifiable and demonstratively wrong, the court can certainly interfere with the same and determine the correct valuation based on objective standards and if there are specific objective standards available to put the valuation of the suit and after doing the same it transpires that the suit is out of the jurisdiction of a court, the court is certainly justified in returning the plaint to the plaintiff under Order 7 R 10 CPC.
37/47
53. I have gone through the impugned order dated 23.2.2008 wherein the Ld. Civil Judge took cognizance of the Delhi Stamp (Prevention of undervaluation of Instruments) Rules 2007 and also took cognizance of the contention of the appellant that the said Rules were not applicable when the suits were valued by the appellant and came to the conclusion in negative format and held that in his considered opinion the said contention of the Ld. counsel for the plaintiff could not be accepted and that the Court-fees Act is a fiscal statute the objective of which is to secure the revenue to the State and the purpose of the said Rules of 2007 is to provide the minimum rates that have to be taken for the purpose of registration of instruments relating to lands and immovable properties in Delhi.
54. In para 11 of the impugned order, the Ld. Civil Judge took cognizance of the said Rules of 2007 in a negatively couched language and held that the suit property is situated in Mahendru Enclave and as per the said Rules, for the said locality, the minimum prescribed rate was Rs. 21,800/- per sq mtr and if calculated at that rate, then the property goes well beyond the jurisdiction of the said court and that though the 38/47 said notification came into effect on 18.7.2007 i.e. around 4-5 months after filing of the present suit but it cannot be understood that just 4-5 months before the said notification the rates could have been so low as portrayed by the plaintiff and that the same might have been marginally less but not as less as Rs. 300/- as shown by the plaintiff.
55. Ld. counsel for the appellant has vehemently opposed the said finding of the Ld. Civil Judge before me on the ground that the Ld. Civil Judge should not have taken cognizance of the said Rules or law which was not in force at the time of filing of the suits or at the time when the valuation of the suits was done by the appellant in his plaints.
56. The said contention posses a question before me as to whether while returning the plaint under Order 7 R 10 CPC a civil court is entitled to take cognizance of the subsequent developments either under the law or of the facts.
57. To answer this question and at the cost of repetition, it is worth mentioning that generally three kinds of jurisdiction are conferred on the ordinary civil courts and the same are (1) territorial jurisdiction; (2) pecuniary jurisdiction; 39/47 and (3) subject matter jurisdiction. All the said jurisdictions may be subject to change or may be ousted by subsequent developments. The said jurisdictions may also be barred by subsequent developments and there is a wide range of subsequent developments both under the law or as a matter of fact. For example, a subsequent legislation may bar the territorial jurisdiction of a civil court. The rising trend towards tribunalization for resolving disputes of specific kinds of civil disputes between the parties may bar not only the territorial jurisdiction but the subject matter jurisdiction of the civil courts. Common examples are the creation of Motor Accident Claim Tribunals, the Arbitration & Conciliation Act, the Sick Industrial Companies Act, so and so forth which bars the subject matter jurisdiction of the civil court. There may be cases in which the plaintiff may seek amendment of the plaint so as to raise the pecuniary value of the suit so as to take the suit out of the jurisdiction of the existing civil court. A subsequent legislation may also bar the territorial jurisdiction of a civil court.
58. My said discussion finds support from various judgments of different Hon'ble High Courts of India. This 40/47 question arose way back in 1938 before the Hon'ble Oudh High Court in the case titled Gulzari Singh Vs. Ram Adhin reported as AIR 1938 Oudh 224 wherein a Division Bench of the said Hon'ble High Court was faced with a situation where during the pendency of civil suit, The U.P. Agriculturists' Relief Act (27 of 1934) came into force wherein it was provided in Section 7 of the said Act that in every suit for recovering an unsecured loan, in which the defendant is an agriculturist, shall be instituted and tried in a Court within the local limits of whose jurisdiction the agriculturist defendant actually and voluntarily resides and while relying on a judgment of the Hon'ble Allahabad High Court reported as ILR 1937 Allahabad 757, the Hon'ble Oudh High Court came to the conclusion that the court of the Munsif rightly returned the plaint taking cognizance of the said subsequent legislation.
59. With regard to the amendment in the plaint ousting the jurisdiction of the court, the matter came up before the Hon'ble Kerala High Court in the case titled Suri Films Vs. S.N. Govinda Prabhu and Brother reported as AIR 1989 41/47 Kerala 28 wherein it was held that the court before which a suit which it is competent to entertain and dispose of is pending can allow amendment of the plaint involving ouster of its jurisdiction and after allowing the amendment the court should return the plaint as amended for presentation to the proper Court and that the question of ouster of jurisdiction and incompetency to decide anything in the suit will come into play only when the effect is achieved by amendment and that even though the amendment notionally relates back to the date of presentation of the plaint, the amended plaint would be deemed to have been wrongly presented before the Court not having jurisdiction to entertain the same only when the amendment is carried out as per orders of the court and then alone the question of passing an order for return of plaint for presentation before the proper Court under Order 7 Rule 10 CPC could arise.
60. The controversy again arose before the Hon'ble Bombay High Court in the case titled Smt. Ganga Coelho and others Vs. Smt. Neena Pinto and others reported as AIR 1997 Bombay 252 wherein a subsequent amendment in 42/47 the law barred the jurisdiction of the civil court and gave the power to decide the issues of the suit land being an agricultural land or whether the plaintiff was tenant of the agricultural land to Mamlatdar and the Hon'ble Bombay High Court came to the conclusion that plaint should have been returned under Order 7 Rule 10 CPC.
61. In a similar issue of amendment of the plaint which took the plaint out of the jurisdiction of the court in which the suit was filed, it was held that such amendments should be allowed and the court must return the plaint under Order 7 Rule 10 CPC and this was the holding of the Hon'ble Calcutta High Court in the case titled Vivekananda Nidhi and others Vs. Smt. Ashima Goswami reported as AIR 1997 Calcutta 340 and again a remarkable thing was decided by the Hon'ble Calcutta High Court and it was held further that since Section 24 of the Code of Civil Procedure amply empowers the Dist. Judge, to transfer the suit and under Section 24(2) the transferee Court is given the discretion to reentry it or to proceed from the point at which it was transferred or withdrawn and that it would be open to the 43/47 transferee court to decide whether the suit transferred to it should be reentered or would proceed from the point at which it was transferred or withdrawn and that therefore, it is for the transferee Court to decide that question after the suit is transferred to it.
62. From the said law laid down by the said Hon'ble High Courts, the position which emerges under the law is that there is no bar of taking cognizance of the subsequent developments either in the case or under the law while returning the plaint to be presented to the proper Court under Order 7 Rule 10 CPC. Thus, in my considered opinion the Ld. Trial Court even positively was justified in taking the cognizance of the said Delhi Stamp (Prevention of undervaluation of Instruments) Rules 2007 in determining the objective standards for the valuation of the suit.
63. It has been further contended on behalf of the appellant that the award passed after the acquisition of the adjoining land under the Land Acquisition Act may be a relevant consideration for determining the value of the land in question and the appellant was justified in taking the valuation of the land acquired of the Village Burari, Delhi. 44/47
64. The said contention of the Ld. counsel for the appellant is merit less in view of the fact that whatever judgments of the Hon'ble Supreme Court he has relied on for his said contention raised under the Land Acquisition Act, the Hon'ble Supreme Court was of the view that award determining the value of the adjoining land may be a relevant criteria but it is not a conclusive proof. Reference may be made to para 53 of the judgment of the Hon'ble Supreme Court in the case reported as AIR 2005 SC 3708 (Supra).
65. Ld. counsel for the appellant has further contended that there was no basis for the Ld. Civil Judge as has been held by him in the impugned order in para 13 to the effect that even otherwise the suit property is situated in Mahendru Enclave one of the Posh localities of North Delhi and that even in the worst of the slums in Delhi the property cannot be available at the rate given by the plaintiff.
66. I do not find any force in the said argument of the Ld. counsel for the appellant because the court is not barred from taking the judicial cognizance of certain facts and even his said holding that it was a better located area finds support from the award no. 44/79-80 dated 28.3.1980 passed by the 45/47 Land Acquisition Collector (PD) which was admittedly placed on record by the appellant himself and which was an award with regard to Village Malikpur Chhawni itself wherein the suit land is also situated and that was the award with regard to other Khasra numbers of the said Village itself and at page 3 of the award, while judging the market value of the said acquired land of the same Village, the Land Acquisition Collector held that notification under Section 4 was issued on 9.4.1964 and, therefore, this would be the relevant material date for determination of market value in the said case and that the land on the date of notification is recorded as Bagh Nehri & Sar Drakhti Nehri and that on its South it abuts the G.T. Karnal Road within two miles from Subjimandi Clock Tower; on its North lie the Ring Road and the Model Town Colony and that it is thus commanding a very good position situationally and that the Revenue Estate of which it is a part has already been urbanised where land use has been fast changing from aggrarian to residential and that while determining its market value on the material date, this factor should materially weigh with the valuer.
46/47
67. Although the Ld. Counsel for the respondents/ defendants has raised so many contentions such as the plaintiff/appellant being not the owner of the suit property, the land if being acquired by the government, the government and other statutory bodies have not been impleaded in the suit and that if it is to be taken that land of the suit property has been acquired under the Land Acquisition Act, the plaintiff, even if he is the owner of the property, is entitled only to the compensation and he has no cause of action for filing the present suit, so and so forth but I have deliberately not discussed these contentions because all the said questions are related to the merits of the case and must be decided by a court of competent jurisdiction and at present since I am dealing only with a question of return of plaint, it is unnecessary to discuss the said questions raised on behalf of the respondents and which are left open to be decided by a court of competent jurisdiction.
68. In view of my said discussions and findings on the said questions based on said material and judgments of the Hon'ble Superior Courts, I find no merits in the said appeals and the Ld. Civil Judge has rightly returned the plaints 47/47 under Order 7 Rule 10 CPC although I have taken the said different grounds to arrive at the said conclusion as indicated above and I am also of the considered opinion that the plaint has been demonstratively under valued despite the appellant/plaintiff was having objective material before him to put proper valuation of the suit for the purposes of court fee and jurisdiction. Hence, all the said 28 appeals are hereby dismissed and a copy of this order has been placed on all the 28 files signed by me and copy of the same be also placed on the Trial Court Record which may be sent back forthwith to the Ld. Trial Court and the appeal files may be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT ON 27.04.2009 (RAKESH TEWARI) ADJ-19: CENTRAL DISTRICT DELHI.