Madhya Pradesh High Court
Smt. Nirmala Rao vs Smt. Laxma Bai on 9 May, 2012
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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
Civil Revision No.339/2011
Smt. Nirmala & another.
-Versus-
Smt. Laxmi and others.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
Shri Shailendra Verma, learned counsel for the
petitioners.
Shri Umesh Trivedi, learned counsel for the
respondent No.1.
Smt. Sushila Paliwal, learned counsel for the
respondent No.9.
None for other respondents.
ORDER
(09.05.2012) 1: This revision is directed against the order dated 16.8.2011 passed in Civil Suit No.24-A/2011 by the First Addl. District Judge, Shahdol, rejecting the application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, filed by the petitioners.
2: Brief facts giving rise to filing of this revision are that the respondent No.1 filed a suit for partition, claiming that she is entitled to 1/9th share in the suit property which was belonging to one Shri S. Raghvendra Rao, who died on 13.12.1987. It is contended that the respondent No.1/plaintiff is the daughter of 2 said Shri S. Raghvendra Rao and as there were 9 legal representatives of said S. Raghvendra Rao, who died intestate, the respondent No.1/plaintiff was entitled to 1/9th share in the suit property. The suit is contested by petitioners on various grounds raising the question that there was already a registered settlement deed executed on 16.3.1971 and another unregistered settlement deed on 18.1.1987, according to which the respondent No.1/plaintiff has no share in the property in suit. The preliminary objection is also raised with respect to pecuniary claim and the suit valuation and it is contended that the suit property is valued more than Rs.1 Crore in accordance to the guidelines issued by the Collector of the district, under the relevant Act and, therefore, unless the Court fees is paid in accordance to the said guidelines after properly valuing the suit, the same will not be maintainable. The petitioners have also moved an application under Order 7 Rule 11 read with Section 94 and 151 of the Code of Civil Procedure for dismissal of the suit, as it is contended that the same is barred under the provisions aforesaid, on account of non-payment of ad-valorem Court fees. It is contended that admittedly the respondent No.1/plaintiff is not in physical possession of the property and if the possession of the property is claimed, according to the pleadings in the plaint itself, the claim is not properly valued nor the proper Court fees is paid. Accordingly, the plaint is liable to be rejected. The trial Court has rejected this objection of the petitioners by the impugned order. Hence, this revision.
3: It is, vehemently, contended by learned counsel for petitioners that the valuation of the property in suit is to be done in accordance to the guidelines issued by the Collector in exercise of his power under the Registration Act. It is contended that the Collector has prescribed the rate on the basis of which the property in suit is to be valued. According 3 to the said guidelines, the valuation of the property in suit would be 1,40,18,000/- and the 9th share of this would come to Rs.15,68,666/-. The respondent No.1/plaintiff was required to value the suit on the basis of such guidelines and was required to pay the Court fees. Since this has not been done according to learned counsel for petitioners, such a plaint was liable to be rejected under Order 7 Rule 11 of C.P.C. For the purposes of valuation of suit and payment of Court fees, learned counsel for petitioners has put his reliance in the case of Narayan Prasad Vs. Jagdish (ILR 2011 MP 792). It is contended that the application submitted by the petitioners was wrongly rejected by the Court below, on the other hand, the plaint of the respondent No.1/plaintiff was liable to be rejected.
4: In response to such submissions made by learned counsel for petitioners, learned counsel appearing for the respondent No.1/plaintiff has contended that actual market value of the property in suit has to be assessed after recording of the evidence of the parties. The respondent No.1/plaintiff being a lady has claimed exemption from payment of the Court fees. Further she has assessed the value of the property to her own knowledge to Rs.2 lacs. If after recording of evidence, it is found that the respondent No.1/plaintiff is required to pay more Court fees or that the valuation of the suit is required to be changed, the finding can be given in this respect by the Court below after the full dressed trial, but at any rate, the plaint is not liable to be rejected on this count alone. Since the disputed facts are required to be examined, the Court below has rightly held that evidence of the parties are to be recorded first and then this issue is required to be decided. The application alone has been dismissed, but the issue if raised is required to be decided by the Court below.
45: Heard learned counsel for the parties at length and examined the record.
6: The issues have been framed on 16.8.2011 by the trial Court in the suit on the basis of the pleadings of the parties and issue No.5 is specifically framed for the purposes of valuation of the suit and payment of Court fees. Not only this, there are other issues such as whether the suit is barred by limitation or whether there is defect of non-joinder of necessary party in the suit. If the petitioners claimed that the valuation of the suit is not proper, they will have to adduce the evidence to indicate that the property in suit is of more valuation than claimed by the respondent No.1/plaintiff. Similarly, the respondent No.1/plaintiff can demonstrate by adducing the evidence that the assessment and valuation of the suit by the respondent No.1/plaintiff is correct. The guidelines issued by the Collector are for the general information, but are not conclusive proof of the rates of the properties. The property may be of more or less value than prescribed in the guidelines. The guidelines are made for the purposes of assessment of stamp duty for registration of a document and not otherwise. For this reason, it cannot be said that without recording of the evidence, such a disputed fact can be proved only on the basis of affidavit. Secondly, for the purposes of consideration of the application under Order 7 Rule 11 of C.P.C., only the pleadings in the plaint are required to be examined. If that is done, how could it be said that the suit valuation is not proper and, therefore, the plaint is liable to be rejected. Thus, the Court below has rightly considered the application of the petitioners. No infirmity or error of jurisdiction is found in the order passed by the Court below. Therefore, there is no need to interfere in the order of the Court below.
57: Since such an objection is rejected, it cannot be said that the issue framed by the Court below with respect to the valuation of the suit and payment of Court fees has been decided. It is only rejection of an objection and not a proof of such a fact. The trial Court is still required to record the evidence on such issue and is required to decide the same along with all other issues as a preliminary issue. It is made clear that the order passed by the Court below or by this Court on the objection of the petitioners, would not come in the way of giving the final decision on the issue No.5 framed by the Court below, after recording of evidence of the parties.
8: Accordingly, the revision is disposed of finally with the aforesaid observation, affirming the impugned order passed by the trial Court. There shall be no order as to costs.
(K.K.Trivedi) Judge 08/05/2012 A.Praj.
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