Punjab-Haryana High Court
Kuldip Thapar vs Babita Nayar And Ors. on 1 March, 2004
Equivalent citations: (2005)139PLR813
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 prays for setting aside order Dated 22.7.2003 passed by the Civil Judge (Jr. Divn.) Ludhiana, dismissing the application of the defendant petitioner in which prayer as made that suit of the plaintiff-respondent under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure (for short, "the Code") be rejected on account of non-payment of court fee.
2. The plaintiff-respondent has filed Civil Suit No. 27 on 14,1,2003 seeking rendition of account of the dissolved firm M/s Triveni Processor, B-XXXII-736/16, Bahadurke Road, Dying Complex, Ludhiana and also sought permanent injunction restraining defendant-petitioner from carrying on a similar business in the firm name or from using , any of the property of the firm for his own benefit until the affairs of the firm have been completely wound up. Another relief prayed was for restraining the defendant-petitioner from alienating or disposing of the assets of the firm, in any manner whatsoever.
3. During the pendency of the suit, the defendant-petitioner filed an application with the averment that plaintiff-respondent herself has assessed the amount due to be not less than 50 lacs in rendition of amount and no court fee for the assessed amount has been affixed. It was pleaded that on account of the non-payment of court fee, the plaint was liable to be rejected and the suit could not proceed. The Civil Judge dismissed the application by observing as under:-
"After hearing their respective submissions and perusing the pleadings it is clear that plaintiff in her Plaint alleged in para No. 16 that suit for the purpose of court fee and jurisdiction is assessed Rs. 195/- for declaration and Rs. 200/- for dissolution and rendition of account and Rs. 130/- for permanent injunction, on which court fee of Rs. 53/- was paid. Plaintiff further alleged that it is expected that an amount of more than Rs. 50 lacs may be found due on rendition of account against the Respondent and Plaintiff shall pay amount of court tee, when finally due to the plaintiff is determined by the Court. From these averments it is clear that it is almost impossible by Plaintiff to value the relief correctly. Present suit is for rendition of account and right of plaintiff has to be determined after conclusion of evidence of both the parties. In view of these averments law cited by learned counsel for plaintiff in (1988-2)94 P.L.R. 288, Commercial Aviation & Travel Company and Ors. v. Vimla Panna Lal, is fully applicable to the averments alleged in the Plaint, whereas law cited by learned counsel for Respondent in 1993 I.S.J. 437, Smt. Bachni Devi v. Tej Ram and Ors., is not applicable to the facts of the case in hand. Moreover, Respondent have also taken these objections in the written statement and as such plaintiff/shall be liable to pay court be before of that decree, if any account which was found due after determination to final decision by the Court. Accordingly application moved by Defendant/ Applicant shall stands dismissed without expressing any opinion on the merits on the main case."
4. Mr. Vikas Sagar, learned counsel for the defendant-petitioner has argued that once the plaintiff-respondent herself has evaluated the suit then there is no escape from affixing the court fee on the value assessed and she cannot be held entitled to delay payment of court fee till after the judgment and decree is delivered. According to the learned counsel the right of the defendant-petitioner would be materially prejudiced by non-payment of court fee and under Order 7 Rule 11 of the Code the plaint is liable to be rejected. In support of his submission, the learned counsel has placed reliance on a judgment, of this Court in the case Bachni Devi v. Tej Ram, 1993 I.S.J. 437.
5. Mr. Sumeet Mahajan learned counsel for the plaintiff-respondent has, on the other hand, argued that in accordance with the provisions of Section 7IV(f) of the Court Fee Act, 1870 (for brevity 'the 1870 Act') in a suit concerning rendition of accounts the amount of Court fee required to be paid should be assessed at which the relief sought is valued in the plaint or memorandum of appeal. According to the learned counsel. In case of rendition of account, ordinarily it is not possible to specifically state the amount which would be due to the plaintiff and therefore, the court fee is paid after the judgment and decree passed in the suit. In support of his submission, the learned counsel has placed reliance on para 22 of judgment of the Supreme Court in Commercial Aviation & Travel Company and Ors. v. Vimla Panna Lal, (1998-2)94 P.L.R. 288, wherein, in somewhat similar circumstances, it has been observed that court fee cannot be paid at the value of the amount-estimated in a suit for rendition of account because it is always a fond hope of the plaintiff to claim the amount yet ultimately he may not get anything. The learned counsel has argued that in that case also the Supreme Court has noticed that the plaintiff had estimated a sum of Rs. 25 lacs to Rs. 30 lacs, which she was sure to due to the plaintiff therein despite that the decree upheld, which was the contention of the plaintiff.
6. After hearing the learned counsel for the parties I find that the argument raised by the learned counsel for the plaintiff-respondent is meritorious and deserves to be accepted. The Supreme Court in the case of Ms Commercial Aviation and Travel Co. 's case (supra) has taken the view that under Rule 4(1) of the Punjab High Court Rules framed under Section 9 of the Suits Valuation Act, 1787 valuation for the purposes of court fee and jurisdiction is not the same. In accordance with the afore-mentioned Rule the value of the suit for accounts purposes of Court fee is required to be determined by the 1870 Act which means that the valuation to the relief will have to be made by plaintiff under Section 7(iv)(f) of the 1870 Act. No standard of valuation has been laid down by the 1870 Act. Interpreting Order 7 Rule 11(b) of the Code, their Lordships observed that in cases where there are objective standard of valuation the plaintiff would not be permitted to put an arbitrary valuation ignoring the objective standards or materials. The observations of their Lordships in this regard read as under:
"Under Order 7 Rule 11(b), C.P.C. a court has to come to a finding that the relief claimed has been undervalued, which necessarily means that the court is able to decide and specify proper and correct valuation of the relief and, after determination of the correct value of the relief, requires the plaintiff to correct his valuation within a time to be fixed by the court. If the court can not determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently, Order 7 Rule 11(b) will not be applicable.
But where there are objective standards of valuation or, in other words, the plaintiff or the court can reasonably value the relief correctly on certain definite and positive materials, the plaintiff will not be permitted to put an arbitrary valuation dehors such objective standards or materials. In such a situation the Court is entitled to interfere under Order 7 Rule 11(b) C.P.C., for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. But, if there be no material or objective standard, the plaintiff's valuation has to be accepted. In the present case the respondent-plaintiff's statement in the plaint that on rendition of accounts, the plaintiff estimated that approximately a sum of Rs. 25 lakhs to 30 lakhs would become due to her share does not constitute any objective standard of valuation or a positive material from which it can be said with any amount of certainty that the valuation of the relief for accounts should be at the sum of Rs. 25 lakhs. The respondent was not required to make such a statement in the plaint. It is the wishful thinking of the respondent. In the circumstances the valuation of the relief for the rendition of accounts under Section 7(iv)(f) of the Court Fees Act is neither unreasonable nor is it demonstratively arbitrary."
7. When the principles laid down by the Supreme Court in M/s Commercial Aviation and Travel Co. 's case (supra) are applied to the facts of the present case it becomes evident that plaintiff-respondent has wishfully estimated that a sum of rupees forty lacs or even more would become due to her which is. a wishful thinking and she was not required to make such a statement in the plaint. There is no objective standard of valuation on the basis of which the Court could arrive at a definite conclusion under Order 7 Rule 11(b) of the Code directing the plaintiff-respondent to affix the Court fee on that basis. Therefore, the revision petition is misconceived and is thus liable to be dismissed,
8. For the reasons recorded above, this petition fails and the same is dismissed.