Punjab-Haryana High Court
Kailash Devi vs D.A.V. Senior Secondary School on 31 July, 2013
Author: L.N. Mittal
Bench: L.N. Mittal
Civil Revision No. 5630 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 5630 of 2011
Date of decision : July 31, 2013
Kailash Devi
....Petitioner
versus
D.A.V. Senior Secondary School
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Gaurav Jain, Advocate, for the petitioner
Mr. KS Chahal, Advocate, for the respondent
L.N. Mittal, J. (Oral)
Plaintiff Kailash Devi has filed this revision petition under Article 227 of the Constitution of India impugning order dated 12.8.2011 passed by the trial court thereby directing the plaintiff-petitioner to approach revenue authorities for assessing market value of the suit land within 15 days and thereafter to fix ad valorem court fee thereon.
Plaintiff has filed suit vide plaint Annexure P/1 for partition of the suit property claiming to be co-sharer therein to the extent of 59/88 share. Following preliminary issue was framed in the suit on objection of Tiwana Dalbir Singh 2013.08.02 10:39 I attest to the accuracy and integrity of this document. High Court, Chandigarh Civil Revision No. 5630 of 2011 -2- defendant regarding court fee:-
"1. Whether the plaintiff has not affixed the proper ad valorem court fees on the plaint ?OPD"
Learned trial court vide impugned order dated 12.8.2011 has held that plaintiff is liable to pay ad valorem court fee on market value of the suit property and accordingly directed the plaintiff to approach the revenue authorities to assess the market value of the suit property and to pay ad valorem court fee accordingly. Feeling aggrieved, the plaintiff has filed the instant revision petition to challenge the said order.
I have heard counsel for the parties and perused the case file. Counsel for the petitioner relying on judgments of this Court in Hari Nath Mittal versus Satish Kumar and others, 1985(1) PLR 707; Raghubir Krishan Dass versus Narain Dass and others, 1991(2) PLR 307 and Vijay Kumar versus Harish Chand alias Hari Chand, 1992(1) HLR 516 contended that fixed amount of court fee is payable on suit for partition and the plaintiff has already paid court fee of ` 70/- which is in excess of the fixed court fee payable on the plaint.
The aforesaid contention cannot be accepted. The plaintiff in the plaint has no where pleaded that she is either in actual or constructive possession of the suit property or any part thereof. Consequently, since plaintiff is seeking relief of possession of her share in the suit property by partition thereof, she has to pay ad valorem court fee on market value of her Tiwana Dalbir Singh 2013.08.02 10:39 I attest to the accuracy and integrity of this document. High Court, Chandigarh Civil Revision No. 5630 of 2011 -3- share in the suit property and not on market value of the entire suit property. Impugned order of the trial court directing the plaintiff to pay ad valorem court fee on market value of the entire suit property is, therefore, illegal and suffers from jurisdictional error to this extent.
As regards the question of paying ad valorem court fee or fixed court fee, since the plaintiff has not alleged herself to be in possession of any part of the suit property, she is liable to pay ad valorem court fee and not fixed amount of court fee. Judgments in the cases of Hari Nath Mittal (supra), Raghbubir Krishan Dass (supra) and Vijay Kumar (supra) are distinguishable on facts.
Direction of the trial court to the plaintiff to approach revenue authorities for assessing market value of the suit property is also completely perverse and illegal and suffers from jurisdictional error. No such direction could be given by the trial court to the plaintiff nor the assessment of market value of the suit property by the revenue authorities can be said to be authentic, conclusive or binding. Moreover, it is function of the court to determine the market value of the suit property and the said function cannot be delegated to the revenue authorities. On the other hand, the parties themselves have to lead evidence regarding the market value of the suit property. Thereupon the court has to determine the same.
Resultantly, the instant revision petition is allowed partly. Tiwana Dalbir Singh 2013.08.02 10:39 I attest to the accuracy and integrity of this document. High Court, Chandigarh Civil Revision No. 5630 of 2011 -4- Impugned order passed by the trial court is modified and it is directed that the plaintiff has to pay ad valorem court fee on market value of her share in the suit property and the market value shall be assessed by the trial court after giving opportunity to both the parties for leading evidence. Counsel for the plaintiff stated that suit filed by the plaintiff has since been decreed subject to decision of the instant revision petition. Accordingly, the parties are directed to appear before the trial court on 26.08.2013. Thereupon the court shall give opportunity of leading evidence to both the parties and shall thereafter decide the preliminary issue accordingly keeping in view the observations made hereinbefore.
( L.N. Mittal )
July 31, 2013 Judge
'dalbir'
Tiwana Dalbir Singh
2013.08.02 10:39
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh