Delhi District Court
Smt. Saroj Jasuja vs M/S Signature Infracon Pvt. Ltd on 24 May, 2013
1
IN THE COURT OF Ms. VEENA RANI, ADDITIONAL SENIOR
CIVIL JUDGE, SOUTHEAST DISTRICT, SAKET COURT
COMPLEX, NEW DELHI
Suit No:175/2013
Smt. Saroj Jasuja
W/o Sh. Ram Rakha Jasuja,
R/o C75, Malviya Nagar, New Delhi .....Plaintiff
Versus
1. M/s Signature Infracon Pvt. Ltd.
2. Sh. Suresh Batra .....Defendant
ORDER
1. Vide this order I shall decide the application of the plaintiff u/o 39 rule 1&2 CPC vide which plaintiff seeks an exparte adinterim order thereby restraining the defendants, their directors, officials, employees and all other persons acting at their instance and on their behalf from illegally/forcibly dispossessing the plaintiff and any member of her family from the suit property bearing property No:C75, Malviya Nagar, New Delhi110017 during the pendency of the present suit.
Briefly stated the facts for the disposal of this application are as under: S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
22. It is averred by the plaintiff that she is the sole and absolute owner in possession of the free hold property bearing No:C75, Malviya Nagar, New Delhi110017 which she has got converted from lease hold to free hold vide Conveyance Deed dated 1912006, duly registered with the SubRegistrar, New Delhi.
3. It is averred that earlier there existed an old superstructure on the suit property and the plaintiff and her husband desired to redevelop the suit property by demolishing the then existing superstructure and reconstructing thereon an altogether new building. It is stated that defendant No:2, who was an old acquittance of the family of the plaintiff and engaged in the business of real estate development as the Director of defendant No:1 Company, came to know about the above said desire of the plaintiff and her husband, therefore, defendant No:2 offered to carry out the work of redevelopment of the suit property. It is stated that plaintiff and the defendant No:1 company, through defendant No:2 being the Director of the defendant No:
1, entered into an oral agreement in October, 2009 for S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.3
the redevelopment of the suit property. It is stated that it was agreed that defendants will apply and obtain necessary sanction building plan and all other requisite clearances/permissions from all concerned authorities in the name and on behalf of the plaintiff for the construction of the proposed new building at the suit plot. It was further agreed that defendant will demolish the then existing structure, carry out the work of construction of new building after requisite sanction building plan and pay an upfront payment of Rs. 35,00,000/ to the plaintiff before the commencement of the new building and the complete the new building with obtaining completion certificate of the proposed new building comprising of Basement, Ground Floor, First Floor, Second Floor and Third Floor with the facility of a Lift/Elevator in accordance with the sanction building plan and bye laws etc., on or before 31012011. It is stated that in view of the aforementioned new construction, the plaintiff agreed to transfer & assign in favour of the defendant No:1 company or their nominees etc only the Second Floor Portion except its common area, in the proposed S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.4
building but only upon if the defendant No:1 timely complete the construction of proposed new building and discharge all their obligations mentioned herein above.
4. It is submitted that contrary to their oral agreement, as mentioned above, the defendants could neither pay the sum of Rs.35 lacs nor maintained the progress of work of construction of the proposed building till December, 2010.
5. It is stated that defendants approached the plaintiff with the request for an amount of Rs.90 lacs which was an estimated amount required by the defendants for completion of redevelopment of the suit plot, thereafter, an agreement dated 31122010 was entered between the plaintiff and the defendants. It is stated that as per the agreement dated 31122010, the plaintiff disbursed an amount of Rs.75 lacs to the defendants out of Rs.90 lacs, but the defendants again failed to maintain the pace of construction of the proposed new building, however, further a supplementary agreement dated 2952012 was also executed between the plaintiff and the defendants, and S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
5the plaintiff disbursed the remaining amount to the defendants.
6. It is submitted that despite the Supplementary Agreement dated 2952012, the defendants could not commence/resume and completed the work of construction of the proposed new building, therefore, the plaintiff got served an legal notice dated 1162012 upon the defendants to which defendants also sent reply dated 1772012. It is stated that since the work of new building was not completed by the defendants till 2572012, which was the deadline for constructing the new building, the permission/licence to the defendants to construction the new building in the suit property automatically determined/rescinded and stands cancelled.
7. It is averred that plaintiff has all along been and is still in use, occupation and possession of the whole of the built up suit property as the sole and absolute owner of the suit property. It is stated that defendant No:2 is pressuring the plaintiff to transfer the second floor portion of the suit property in his favour and on 19112012 he threatened to dispossess the plaintiff and S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
6his family members from the suit property. Plaintiff stated to have submitted a written complaint to SHO, P.S. Malviya Nagar, New Delhi in this regard.
8. It is further averred by the plaintiff that defendants are having link with antisocial elements, therefore, the plaintiff is living under the threat of her forcible and illegal dispossession from her suit property at the hands of the defendants, hence the present suit.
9. The defendants filed their written statement and raised preliminary objections that this court has no pecuniary jurisdiction to try the present suit as the suit property is worth Rs.12 Crores which is over and above the pecuniary jurisdiction of this court. Defendant further raised objection that suit has not been properly valued by the plaintiff for the purposes of jurisdiction and court fees. It is stated that there is no cause of action for filing the present suit as the defendants are claiming their legal right as per the agreement as the plaintiff had agreed to hand over the peaceful possession and ownership of the second floor of the property in dispute. It is submitted that plaintiff has not come to the court with clean hands and suppressed S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
7the material facts as the delay in getting the work completed was attributed to the plaintiff themselves because as per the agreement they have delayed in getting the loan sanctioned to the defendants which has resulted into some delay in completing the project and at this stage when more than 95% of work has been finished and only installation of lift and some finishing works were remaining then the plaintiff has filed the present suit only for defeating the right of the defendants. It is stated that plaintiff has also suppressed the material facts regarding the payment of Rs.20 lacs made to the plaintiff by the defendant through cheque & cash on 1112009.
It is submitted that plaintiff firstly failed to advance loan on time which resulted in delay of completion of project on time and plaintiff further failed to show the original documents of said property as the defendants had prospective buyers for the second floor of the suit property from where the funds could have been got for completion of the project. It is denied by the defendants that till December, 2010 the construction work were not in progress. It is stated that S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
8till December, 2010 itself the columns and roof of basement, ground floor, first floor and second floor were completed and an amount of approximately Rs.70 lacs were invested but it was the plaintiff who was not ready to sign any legal documents confirming legal rights to the defendants and in that apprehension only the defendants stopped construction work. It is further denied that defendants have failed to maintained the pace of construction of proposed new building or failed to complete within the stipulated period. It is stated that plaintiff has also delayed in selecting the tiles and marbles to be used in the project which further delayed the project.
It is stated by the defendants that whatever delay was in completing the project because of the plaintiff since the plaintiff delayed in paying all the installments as per the agreement. It is submitted that defendants have always been ready to fulfill their part of the agreement but it is the plaintiff who is not ready even to permit the defendants to complete the project and also to accept the money as per the agreement so as to execute the nefarious designs to deprive the defendants S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
9of its right which accrued according to the agreement.
It is stated that plaintiff has been illegally occupying second floor of the suit property since as per the agreement defendant would have ownership right over second floor. It is submitted that 95% work is complete and defendant is ready to complete it if given opportunity. Defendants have denied that defendant No:2 has ever pressurized or threatened any of the family member of the plaintiff for dispossessing them. It is stated that no cause of action has ever arose in favour of the plaintiff and against the defendants. The defendants have denied the all allegations leveled against them by the plaintiff. It is prayed that suit of the plaintiff be dismissed with cost.
10. No replication filed on behalf of the plaintiff to the written statement of the defendants.
11. I have heard and considered the argument of ld. counsel for the parties and perused the record.
12. In order to seek relief u/o 39 rule 1&2 CPC, one must show that a prima facie case exists in his favour, balance of convenience also lies in his favour and that an irreparable loss would be caused to him in case such S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
10a relief is not granted to him.
13. The granting of perpetual Injunctions is regulated by the Specific Relief Act, while temporary or, as they are sometimes called, interlocutory Injunctions, which are simply intended to preserve the status quo pending the decision, and which may be granted at any period of a suit, are treated as of the nature of procedure and are therefore regulated by the Code. One purpose of the enforcement of the laws is to maintain peace and order in society. The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in own hands by members of society. It is wellsettled that a decision by a Criminal Court does not bind the Civil Court while a decision by the Civil Court binds the Criminal Court. In Bhinka & Ors. Vs. Charan Singh , AIR 1959 SC 960, it was held that the court does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law.
14. In Gujarat Bottling Co. Ltd. vs. Coca Cola Company and Others, 1995(5) SCC 545, the Hon‟ble Supreme Court, inter alia, observed as under: "The S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
11object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the „balance of convenience‟ lies."
15. Prima facie case:
The expression "prima facie" means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. [see Black's Law Dictionary]". The S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.12
Supreme Court in Marin Burn Ltd. v. R.N. Banerjee 1958I L.L.J. 247 held that 'A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence.' In Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad (1995(5) SCC 545,) wherein it was held that "Prima facie case" means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. "Prima facie case" is a substantial question raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.13
prima facie case is established. The real thing to be seen is that the Plaintiff‟s claim is not frivolous or vexatious.'' The plaintive had agreed to convey and transfer the second floor portion of the premises. However, the defendants were unable to complete the construction work. It is also the case of the plaintive that the defendants played tactics to coerce the plaintive in order to have more concessions. According to the plaintive the time was of essence of the contract and even after repeated extensions of time period, the builder defendants could not complete the work. The contract finally expired on 25.07.2012 and therefore the contract dated 31.12.2010 stood terminated after 25.07.2012. Despite the said position the defendants have allegedly pressurizing the plaintiveherein to transfer the second portion of the premises in their favour. Apprehending dispossession, the plaintive made a police complaint to P.S. Malviya Nagar (Annexure P4). The said complaint specifies the apprehension that the plaintiveherein are fearing dispossession by the defendants.
S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
14In my considered view the plaintiveherein have been able to show a prima facie case.
16. Balance of convenience:
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. In Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582, the Hon'ble Calcutta High Court observed that issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be an onesided affair. In Antaryami Dalabehera vs Bishnu Charan Dalabehera:
2002 I OLR 531, as this point, it was held that balance of convenience, which means, comparative mischief for inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party, if it is granted. In the case of Orissa State Commercial S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.15
Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Balance of convenience' means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff if temporary injunction is refused would be balanced and compared with that to the defendant if it is grants ed If the scale of inconvenience leans to the side of the plaintiff, then alone interlocutory injunction should be granted."
In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 it was held that ' Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.' In the present case if the temporary injunction is not granted the plaintiveherein is likely to face S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
16mischief or inconvenience.
17. Irreparable injury:
In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Irreparable injury' means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under: "The phrases `prima facie case', `balance of convenience' and ` irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.17
convenience." No injunction could be granted under O. 39, rr. 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima facie case and, if so as between whom ? in view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case.( United Commercial Bank vs Bank Of India And Others: 1981 AIR 1426, 1981 SCR (3) 300). The Supreme Court in Hindustan Petroleum Corporation v. Shrinarayan and Ors., (2002) 5 SCC 760, has held with regard to grant of interlocutory injunction which can also be applied with regard to grant of permanent injunction. It is specifically clear from the above principle that with regard to grant of permanent injunction the Court has to see that whether plaintiff has a legal right asserted by him in his favour or by violation of his right he would suffer irreparable injury.
In the present case the plaintiveherein are old S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.18
and feeble the loss caused to them would be beyond repair.
The application of the plaintiff u/o 39 rule 1&2 CPC is allowed and defendants, their directors, officials, employees etc are restrained from dispossessing the plaintiff and any of her family member from the suit property bearing property No:C75, Malviya Nagar, New Delhi110017 till the final disposal of the present suit. Nothing of what has been stated herein above shall have any bearing on the merits of the case.
18. Put up for documents A/D and framing of issues on 29072013.
Announced in the open court.
(VEENA RANI) ASCJ/JSCC /Gdn.JUDGE SOUTHEAST, SAKET COURTS, NEW DELHI Date:24052013 S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
19IN THE COURT OF Ms. VEENA RANI, ADDITIONAL SENIOR CIVIL JUDGE, SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI Suit No:175/2013 Smt. Saroj Jasuja W/o Sh. Ram Rakha Jasuja, R/o C75, Malviya Nagar, New Delhi .....Plaintiff Versus
1. M/s Signature Infracon Pvt. Ltd.
2. Sh. Suresh Batra .....Defendants ORDER
1. Vide this order I shall decide the application of the defendants u/o 7 rule 11 CPC vide which they prayed that suit of the plaintiff be dismissed with exemplary cost. Briefly stated the facts for the disposal of this application are as under:
2. Plaintiff has filed the present suit for permanent injunction seeking to restrain the defendants, their directors, officials, employees and all other persons acting at their instance and on their behalf from illegally/forcibly dispossessing the plaintiff and any member of her family from the suit property bearing S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
20property No:C75, Malviya Nagar, New Delhi110017.
3. The defendants have filed their written statement and denied all the allegations leveled against them by the plaintiff.
4. In his application u/o 7 rule 11 of CPC, the defendants have stated that this court has no pecuniary jurisdiction to try the present suit as the suit property is worth Rs.12 Crores which is over and above the pecuniary jurisdiction of this court. It is submitted that plaintiff has not valued the present suit property which is Rs.12 crores and has only mentioned in his prayed in para 19 that suit is valued Rs.130/ for the purposes of court fees and jurisdiction on which court fees of Rs. 13/ has been affixed. It is stated that as per Section 8 of Valuation of Suit Act in a case for suit for injunction the Court Fees has to be same as for jurisdiction and therefore the suit of the plaintiff should be valued for the purposes of jurisdiction for Rs.12 crores as the property in disputes is valued about 12 crores. It is stated that there is no cause of action for filing the present suit as the defendants are claiming their legal right as per the agreement as the plaintiff had agreed to S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
21hand over the peaceful possession and ownership of the second floor of the property in dispute. It is submitted that plaintiff has not come to the court with clean hands and suppressed the material facts as the delay in getting the work completed was attributed to the plaintiff themselves because as per the agreement they have delayed in getting the loan sanctioned to the defendants which has resulted into some delay in completing the project and at this stage when more than 95% of work has been finished and only installation of lift and some finishing works were remaining then the plaintiff has filed the present suit only for defeating the right of the defendants. It is stated that plaintiff has also suppressed the material facts regarding the payment of Rs.20 lacs made to the plaintiff by the defendant through cheque & cash on 1112009.
It is submitted that plaintiff firstly failed to advance loan on time which resulted in delay of completion of project on time and plaintiff further failed to show the original documents of said property as the defendants had prospective buyers for the second floor of the suit property from where the funds could have S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
22been got for completion of the project.
It is submitted by the defendants that grave prejudice shall be caused to them if the prayer of the applicant is not allowed and the hardship shall be caused to the defendants for facing the present litigation without any reason. It is prayed by the defendants that suit of the plaintiff be dismissed with exemplary cost.
5. No reply filed on behalf of the plaintiff to the application u/o 7 rule 11 CPC. Ld. counsel for the plaintiff straightaway argued the aforesaid application of the defendant.
6. I have heard ld. counsel for the parties and perused the record carefully.
7. By way of the application under Order VII Rule 11 CPC the defendants are seeking the dismissal of suit on two aspects:
(i) That the present suit is undervalued at Rs.130/ inasmuch that merely Rs.13/ have been paid by way of the courtfees stamp which would cover only the court fee visàvis the relief of injunction u/s 7(iv)(d) of the Court Fees Act, 1870. The court fee as per the S.8 of the S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.23
Suit Valuation Act ought to have been paid for the premises whose value is Rs.12 Crore. Therefore, the suit ought to have been filed before the High Court as this court has no pecuniary jurisdiction to try the suit.
(ii) That no cause of action ever arose in favour of the plaintiffherein since no threat has ever been extended to the plaintiff and the defendants are claiming their legal rights arising out of the agreement according to which the plaintiff had agreed to hand over the peaceful possession & ownership of the second floor of the suit premises.
8. I may also point out that the application under Order VII Rule 11 CPC is not signed by any of the defendant. It is not even signed by the pleader. The application is accompanied by the affidavit of one Sh. Karan Batra s/o Sh. Suresh Batra stated to be the director of the company (defendant no.1).
9. The Suit Valuation and the Court Fees:
In normal course, the plaintiff would be obliged to institute the suit in the court of lowest grade competent to try it in terms of Section 15 of the CPC. The exceptions to this rule are founded on the plaintiff's S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.24
intention to value his suit for the purposes of pecuniary jurisdiction at a higher amount.
10. The provisions relevantherein are :
S.7. Computation of fees payable in certain suits: The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
(iv) (d) In suits for an injunction; to obtain an injunction, S.8 of the Suit Valuation Act :: Courtfee value and jurisdictional value to be the same in certain suits. Where in suits other than those referred to in the Courtfee Act, 1870, section 7, paragraph v, vi an ix and paragraph x, clause(d), Court fees are payable ad valorem under the courtfees Act , 1870, the value as determinable for the computation of court fees and the value for purposes of jurisdiction shall be the same.
11. Section 7 of the Court Fees Act, 1870 provides for computation of fees payable in suits. Under Section 7(iv)(d), to obtain an injunction, the plaintiff shall state the amount at which relief sought is valued and under S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
25Section 8 of the Suits Valuation Act, 1887, the plaintiff is obliged to value the suit for the purposes of court fee and jurisdiction identically except for the exceptions provided under Section 7 of the Court Fees Act, 1870. In the present case the prayed relief is that of prohibitory injunction. What has to be seen is that in the light of the wellenunciated principles of law whether the plaintiff has correctly valued the suit for the purposes of court fee and jurisdiction? Fixation of value of suit is in the discretion of the plaintiff but once he exercises such discretion on bonafide belief, he is obliged to pay the court fee in accordance with the provisions of the Court Fees Act, 1870 and Schedule attached thereto.
12. Section 8 of the Suits Valuation Act provides that where in suits other than those referred to in the Court fees Act, 1870, Section 7, paragraphs v, vi and ix and paragraph x clause (d), courtfees are payable ad valorem under the Courtfees Act, 1870, the value as determinable for the computation of courtfees and the value for purposes of jurisdiction shall be the same. Where, however, a suit falls beyond the scope of this the S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
26principle of Section 8, Suits Valuation Act, providing for uniformity of both these matters will not be applicable. If, therefore, the suit would fall under Schedule II, Article 17 (vi) of the Courtfees Act, it would not be the same as for the purpose of courtfee.
13. In a Full Bench judgment of the Hon'ble Delhi High Court Smt. Sheila Devi and Ors v. Sh. Kishan Lal Kalra and Ors. Reported in (1974) II Delhi 491 (FB) it was contended that the plaintiff has a discretion to mention the valuation of the suit as he may like and may claim such reliefs as he desires and the court would not interfere with such valuation of the plaintiff. In Ram Narain Prasad and Anr. v. Atul Chander Mitra and Ors. {1994 SCC (4) 349 : JT 1994 (3) 148} it was held that the court fee is to be computed on the basis of the averment made and relief sought in the plaint and not on the basis of the written statement.
14. I may also refer to a Division Bench judgment of the Hon'ble Delhi High Court in Shakuntala Rani Vs. Rajesh Bhatt (Deceased) Through LRs. {1999 IVAD Delhi 29 : 80 (1999) DLT 98 (DB) : 1999 (50) DRJ 127} specifically dealing with the valuation of a suit for S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
27injunction under Section 7 (iv) (d) of the said Act. It has been held that the plaintiff has a right in any suits mentioned in various clauses of subsection, to place any valuation that he likes on relief he seeks and the court has no power to interfere with the plaintiff's valuation. It was, thus, held that it was not open to the court to examine the correctness of valuation given by the plaintiff.
15. The Constitution Bench of Supreme Court in S. Rm. Ar. S.Sp. Sathappa Chettiar Vs. S. Rm.Ar.Rm. Ramanathan Chettiar (1958 AIR 228 : 1958 SCR 1015) has dealt with the question of the plaintiff's exercise of option in valuing suit under clause (d) of Section 7(iv) of the Court Fees Act. In Para 15 of the report it was held : " There can be little doubt that the effect of the provisions of S. 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of courtfees and that is natural enough. The computation of courtfees in suits falling under S. 7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
28his claim. Once the plaintiff exercises his option and values his claim for the purpose of courtfees, that determines the value for jurisdiction. The value for courtfees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for courtfees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of courtfees that determines the value for jurisdiction in the suit and not vice versa..."
16. Following the ratio in Sathappa Chettiar's case (supra), in Smt. Sheila Devi's case (supra) it was held by a Full Bench of the Hon'ble delhi High court that sub section (iv) of Section 7 of the Court Fees Act gives a right to the plaintiff in any of the suits mentioned in various clauses of that sub section to place any valuation that he likes on the relief he seeks subject, however, to any rules made under Section 9 of the Suits Valuation Act and the Court has no power to interfere with the plaintiff's valuation.
S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
2917. In the case of Harchand Singh Gujjar Singh Vs. Dalip Singh Pritam Singh, AIR 1965 Punjab 468 the plaintiff therein had claimed that he had half share in the truck and the defendant, who was in possession of the same, be restrained from disposing it. Therefore, the plaintiff had not sought the relief of possession and had simply confined his prayer for injunction in regard to alienation of the truck.
18. In the case of M/s Time Properties and Promoters Vs. Delhi Development Authority, AIR 1986 (Delhi) 317 the suit filed was for permanent injunction restraining the defendant therein from revoking the bid of the plaintiff which had been accepted. As the suit was purely for injunction, the plaintiff was not required to pay ad valorem Court fee.
19. In the present case the plaintiff has valued the suit at Rs.130/ for the purpose of Court Fee and Jurisdiction on which the prescribed court fee of Rs. 13/ has been affixed. While determining the court fee payable the court has to look the plaint and the substance of the relief (See: Shamsher Singh Vs. Rajinder Prashad and others). The plaintiffherein is S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
30asking neither for the possession of the premises nor for any other relief such as declaration where ad valorem fee is required to be paid.
20. In deciding what the proper Court fee payable is, the Court must have regard to the substance of the thing and not the mere form in which the relief has been prayer for. The Honourable Supreme Court, in the decision reported in Lakshmi Ammal vs. K.M. Madhavakrishnan (AIR 1978 SC 1607) held in para2 thus: "2. It is unfortunate that long years have been spent by the courts below on a combat between two parties on the question of courtfee, leaving the real issues to be fought between them to come up leisurely. Two things have to be made clear. Courts should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Secondly, courtfee, if it seriously restricts the rights of a person to seek his remedies in Courts of justice, should be strictly construed. After all access to justice is the basis of the legal system. In that view, where there is a doubt, reasonable, of course, the benefit must go to S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
31him who says that the lesser court fee alone be paid."
21. In the above case, the Honourable Supreme Court held that access to justice is the basis of the legal system. Where there is a doubt, if it is reasonable, the benefit must go him who says that the lesser court fee alone be paid.
22. The plea of the defendant in regard to the court fee issue is not sustainable.
23. The cause of action:
It has been contended by the defendant that no cause of action ever arose in favour of the plaintiff herein since no threat has ever been extended to the plaintiff and the defendants are claiming their legal rights arising out of the agreement according to which the plaintiff had agreed to hand over the peaceful possession & ownership of the second floor of the suit premises.
24. The expression "cause of action" has not been defined either in the Civil Procedure Code or elsewhere and is more easily understood than precisely defined. The Hon'ble Supreme Court in Om Prakash Srivastava v. Union of India & Anr. (2006) 6 SCC 207 attempted an S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
32explanation of the expression in the following words:
"The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction.
25. To the same effect is the decision of Hon'ble Supreme Court in Liverpool & London Ltd. v. M. V. Sea Success I. & Anr. (2004) 9 SCC512; where it was held Court held that the disclosure of a cause of action in the plaint is a question of fact and the answer to that question must be found only from the reading of the plaint itself. The Court trying a suit shall while examining whether the plaint or the petition discloses a cause of action, has to assume that the averments made in the plaint or the petition are factually correct. It is only if despite the averments being taken as factually correct, the Court finds no cause of action emerging from the averments that it may be justified in rejecting the plaint. The following paragraph from the decision is apposite in this regard: "Whether a plaint discloses a cause of action or not is essentially a question of fact.
S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.
33But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed.
26. In the present case it is pertinent to mention that the plaintiff has not denied the contract. All that has been apprehended is 'forcible dispossession'. That is to say that the plaintherein avers the concerns other than the contract. Therefore at this stage it cannot be out rightly said that no cause of action had never arisen.
This plea of the defendant is also baseless.
27. The present application of the defendants is devoid of merits and is accordingly dismissed.
Announced in the open court.
(VEENA RANI) ASCJ/JSCC /Gdn.JUDGE SOUTHEAST, SAKET COURTS, NEW DELHI Date:24052013 S.No:175/13, Saroj Jasuja Vs. M/s Signature Infracon Pvt. Ltd.