Punjab-Haryana High Court
Ansal Buildwell Ltd vs Mrs. Shalini Chhabra And Others on 12 March, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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C.R. No.1944 of 2011 (O&M)
Date of Decision:12.03.2012
Ansal Buildwell Ltd.
.....Petitioner
Vs.
Mrs. Shalini Chhabra and others
.....Respondents
CORAM:- HON'BLE MR. JUSTICE L.N. MITTAL
Present:- Mr. Arun Jain, Senior Advocate with
Mr. Sanjay Vij, Advocate for the petitioner.
Mr. Manish Jain, Advocate for the respondents
No.1 and 2.
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L.N. MITTAL, J.(Oral)
By this common order, I am disposing of two civil revisions, i.e. C.R. No.1944 of 2011 titled as Ansal Buildwell Ltd. v. Mrs. Shalini Chhabra and others and C.R.. No.2817 of 2011 titled as Sandeep Thareja and another v. Mrs. Shalini Chhabra and others as both these revision petitions have arisen out of the same order of the trial Court.
Respondents No.1 and 2 / plaintiffs have filed suit in which petitioner of C.R. No.1944 of 2011 is defendant No.1 whereas petitioners of C.R. No.2817 of 2011 are defendants No.5 and 6. In plaint Annexure P.2, respondents No.1 and 2 claimed various reliefs including relief of declaration and mandatory injunction. The relief of mandatory injunction claimed by the plaintiffs includes direction to defendant No.1 to restore allotment of the suit plot to the plaintiffs and to cancel the allotment thereof in favour of defendant No.2 and also to deliver possession of the suit plot to C.R. No.1944 of 2011 (O&M) -2- the plaintiffs, besides some other directions.
Defendant No.1 moved application under Order 7 Rule 11 of the Code of Civil Procedure (for short, `the CPC') for rejection of the plaint on the ground that suit for declaration and injunction is not maintainable and the plaintiffs have to file suit for possession of the suit plot by specific performance of the agreement.
Defendants No.5 and 6 also moved application under Order 7 Rule 11 CPC alleging that plaintiffs had to pay ad-valorem court fee in view of the relief claimed by them but plaintiffs have paid court fee of Rs.25/- only and, therefore, the suit of the plaintiffs is liable to be dismissed.. It was also alleged that the suit is barred by Sections 34, 37, 38 and 41(h) of the Specific Relief Act, 1963 (for short, `the Act').
The plaintiffs in their reply alleged that the plaint has to be read as a whole and the suit has been filed for establishing title of the plaintiffs and also claiming relief of possession of the suit property. The plaintiffs pleaded that court fee payable may be assessed.
Learned trial Court, i.e. learned Additional Civil Judge (Senior Division), Gurgaon vide impugned order dated 8.2.2011 (Annexure P.1) held that plaintiffs have filed the instant suit for possession although cleverly couched the same in form of declaration and mandatory injunction. The trial Court disposed of applications of defendant No.1 and defendants No.5 and 6 by directing the plaintiffs to pay ad-valorem court fee on value of the suit property. It is indisputed that plaintiffs have accordingly paid ad- valorem court fee in the trial Court. Feeling aggrieved by impugned order of the trial Court, instant revisions have been preferred. C.R. No.1944 of 2011 (O&M) -3-
I have heard the learned counsel for the parties and perused the case file.
Learned senior counsel for the petitioners contended that suit for declaration and mandatory injunction only is barred by Section 41(h) of the Act. Reliance in support of this contention has been placed on three judgments of this Court, i.e. Robust Tyres Pvt. Ltd. v. State Bank of India, 1987 Civil Court Cases 257, S.K. Dhadwal v. Prem Singh and another, 1989 Civil Court Cases 177 (P&H) and Teja Singh and others v. Balwant Singh, 2011(1) RCR (Civil) 8.
Learned counsel for the petitioners also contended that relief of specific performance of the agreement is now barred by limitation and, therefore, the suit could not be treated to be for possession of the suit plot by specific performance of the agreement. To support this contention, counsel for the petitioner cited two judgments of Hon'ble the Supreme Court, i.e. Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) v. Ramesh Chander and others, 2011(3) RCR (Civil) 620 and Tarlok Singh v. Vijay Kumar Sabharwal, 1996 PLJ 237. It was also contended that there was no prayer by the plaintiffs for amendment of plaint to seek specific performance of the agreement and, therefore, no such relief could be granted by the trial Court.
On the other hand, counsel for respondents No.1 and 2/ plaintiffs vehemently contended that in original plaint, (Annexure P.2) itself, the plaintiffs have claimed the relief of possession and specific performance as well (in addition to other reliefs) although couched in the form of declaration and mandatory injunction and, therefore, the suit is C.R. No.1944 of 2011 (O&M) -4- maintainable. Reliance in support of this contention has been placed on judgment of Hon'ble the Supreme Court in Sant Lal Jain v. Avtar Singh, AIR 1985 Supreme Court 857, judgment of this Court in India Navigation Company v. Haryana State Industrial Development Corporation, 2006(1) PLR 358 and also judgment of Allahabad High Court in Islam Ahmad v. Maqsood Ahmad and another, 2006(2007)RD- AH 13738. Reference was also made to judgment of this Court in Surjit Kaur v. Balwinder Kaur, AIR 2006 (P&H) 23.
I have carefully considered the rival contentions.
Perusal of plaint Annexure P.2 reveals that plaintiffs in the suit have claimed multiple reliefs, i..e, multiple declarations and multiple mandatory injunctions. The reliefs include relief of possession of the suit property as well as relief of re-allotment of the suit property to the plaintiffs and cancellation of allotment thereof to defendant No.2. The plaint read as a whole including the reliefs claimed by the plaintiffs would clearly depict that the plaintiffs sought relief of possession of the suit property as well as specific performance of the agreement, besides some other reliefs, although cleverly couched in the form of declaration and mandatory injunction, which was done to avoid payment of ad-valorem court-fee. However, in essence, the reliefs claimed include the relief of possession as well as of specific performance. Consequently, it cannot be said that the suit is not maintainable in the present form or that suit to claim relief of specific performance of the agreement is now barred by limitation. In this view of the matter, judgment cited by counsel for the petitioners are not applicable to the instant case. On the contrary, judgments cited by counsel for C.R. No.1944 of 2011 (O&M) -5- respondents No.1 and 2 in the cases of Sant Lal Jain (supra), India Navigation Company (supra) and Islam Ahmad (supra) are fully attracted to the facts of the instant case. Judgment in the case of Surjit Kaur (supra), cited by counsel for respondents No.1 and 2, is however, not applicable to the instant case. In that case, the suit was for mandatory injunction by licensor against lincensee after termination of license. However, the other judgments mentioned hereinbefore are fully applicable. The suit in the present form is maintainable because effective reliefs of possession and specific performance of agreement have also been claimed in the plaint besides seeking other reliefs.
As regards court fee, the suit cannot be dismissed merely on the ground of non-payment of court fee and for this purpose, an opportunity has to be granted to the plaintiffs for payment of court fee and if still the plaintiffs fail to pay appropriate court fee, only then the plaint can be rejected. In the instant case, the trial Court vide impugned order granted opportunity to the plaintiffs to pay ad-valorem court fee and the plaintiffs accordingly paid the same. Thus the question of payment of ad-valorem court fee also stands adjudicated and decided in favour of the plaintiffs.
However, it has to be noticed that the plaintiffs tried to play trick with the Court by claiming relief of declaration and mandatory injunction to avoid payment of ad-valorem court fee. For this reason, the plaintiffs have to be subjected to costs and except to this extent, impugned order of the trial Court does not suffer from any illegality, perversity or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India C.R. No.1944 of 2011 (O&M) -6- under which these revision petitions have been filed.
For the reasons aforesaid, both the revision petitions are found to be meritless and are therefore dismissed except to the extent that respondents No.1 and 2/ plaintiffs shall pay Rs.20,000/- as costs precedent out of which defendant No.1 shall get Rs.5,000/- and defendants No.5 and 6 shall get Rs.15,000/-.
March 12, 2012 ( L.N. MITTAL ) renu JUDGE