punjab and haryana HIGH COURT
G.S.Sandhawalia, J.
K.C. Gupta v. Rajat Gupta
CR No.8351 of 2014
09.12.2014
cpc , O. 7 R. 11 – Revision is not maintainable under Order 7 Rule 11 CPC where there was a claim regarding the joint possession in the family property – Court fee is computable not on the basis of sale consideration Surhrid Singh @ Sardool Singh, , (2010-2)158 PLR 707 (SC) , 2010 PLRonline 0006, relied.
Mr.Puneet Kumar Bansal, advocate, for the petitioners.
****
G.S.Sandhawalia J.(Oral) – Challenge in the present revision petition is to the order dated 10.09.2014 (Annexure P6), passed by the Civil Judge (Jr.Divn.), Ferozepur, whereby the application, filed under Order 7 Rule 11 CPC by defendant No.1 has been dismissed on the ground that the property in question is a joint Hindu family property and there is no requirement of affixing Court fee of the value of the property in question. Reliance has been placed upon the judgment rendered by this Court in Jaswinder Singh & others v. Jasbir Kaur & another 2013 (2) PLR 15 to come to the said conclusion.
2. In the present case, the dispute is regarding the suit filed by the grandsons of the present petitioners who have challenged the sale deed dated 02.07.2007, executed by him in favour of defendant No.2 and the relief of joint possession and decree of permanent injunction has been sought. The petitioner filed written statement and contested the claim initially. Thereafter, the application was filed under Order 7 Rule 11 CPC to affix the Court fees, praying that the plaint be rejected, which has been dismissed by the Trial Court, after contest.
3. Counsel for the petitioners has tried to distinguish the judgment rendered in Jaswinder Singh's case (supra) by submitting that once the sale deed was also subject matter of consideration, then ad valorem Court fees was liable to be paid.
4. After hearing counsel for the petitioners, this Court is of the opinion that there is no merit in the present revision petition, on two accounts, firstly, that a revision itself would not be maintainable against an order whereby the application under Order 7 Rule 11 CPC has been dismissed on account of inadequate Court fees. The Apex Court in Rathnavarmaraja v. Vimla AIR 1961 SC 1299 noticed the said fact that entertaining petitions preferred before the High Court in exercise of revisional jurisdiction and stalling progress in the suits for trial could not be appreciated. The Court Fee Act, 1870 was primarily a question between the plaintiff and the State and not to give leverage to the contesting party to obstruct trial of the proceedings. Relevant observations read as under:
“The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the and High Court under section 115 of the Code of Civil Procedure is integrity of this document strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior court by appeal or in revision against the order adjudging payment of court-fee payable on the plaint.”
5. The said view was following by a Full Bench of this Court in Krishan Kumar Grover v. Parameshri Devi (1966) 68 PLR 54. The reference before the Full Bench was that whether the plaintiff could challenge the order whereby the Trial Court had directed the additional Court fees payable. It was, accordingly, held that a revision was maintainable at the instance of the plaintiff against an order directing payment of additional Court fees. The matter again came up before another Full Bench of this Court in Arjan Motors v. Girdhara Singh & others 1978 AIR (Punjab) 25 as to whether the defendants had a right to file a revision. Placing reliance upon the judgment of the Apex Court in Shamsher Singh v. Rajinder Prashad & others 1973 (2) SCC 524, the Division Bench held that the question of Court fees could not be raised by the defendants under Section 115 CPC. In Shamsher Singh's case (supra) also, it has been held that unless the question of Court fee involves the jurisdiction of this Court, revision would not be maintainable.
6. Accordingly, this Court is of the opinion that merely because a petition has been filed under Article 227 of the Constitution of India would not be a ground for this Court to interfere by invoking the supervisory powers in a order whereby the Trial Court has dismissed the application filed by the defendant-petitioners.
7. Another reasoning which would prevail with this Court is that in Suhrid Singh @ Sardool Singh v. Randhir Singh & others , (2010-2)158 PLR 707 (SC) , 2010 PLRonline 0006 , the relief of joint possession was also sought and fixed Court fees was affixed. In the said case, there was also a prayer for declaration that the sale deeds were void and not binding on the coparcenary and accordingly, it was held that Court fees was computable under Section 7(iv)(c) of the Act and not on the basis of the sale consideration, mentioned in the sale deed. Relevant observations read as under:
“7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “co-parcenery” and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.”
8. Division Bench of this Court in Tarsem Singh v. Vinod Kumar, 2014 (1) ICC 1054 while following the judgment of the Apex Court in Suhrid Singh's case (supra), also laid down that in case the executant of a document wants a deed to be annulled, then he is required to pay ad valorem Court fee and in case a non-executant seeks possession, he has to pay fixed Court fee. Relevant observations read as under:
“5. In view of the said example given an example in para No. 6 of the judgment and the finding recorded in para No. 7, we hold as follows:-
i) If the executant of a document wants a deed to be annulled, he is to seek cancellation of the deed and to pay advalorem Court fee on the consideration stated in the said sale deed.
ii) But if a non-executant seeks annulment of deed i.e. when he is not party to the document, he is to seek a declaration that the deed is invalid, non-est, illegal or that it is not binding upon him. In that eventuality, he is to pay the fixed Court fee as per Article 17(iii) of the Second Schedule of the Act.
iii) But if the non-executant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also a consequential relief of possession, he is to pay the advalorem Court fee as provided under Section 7(iv)(c) of the Act and such valuation in case of immovable property shall not be less than the value of the property as calculated in the manner provided for by Clause (v) of Section 7 of the Act.
In view of the aforesaid judgment of the Hon'ble Supreme Court, the issue leading to payment of the Court fee is decided in terms of the parameters laid down above. The single bench judgments rendered prior to the Supreme Court judgment mentioned above run counter to the aforesaid view and thus overruled. The Reference is answered accordingly. The Single Bench judgments rendered, so far as they run counter to the aforesaid view, are thus overruled.”
9. In the present case, the claim is of a joint possession on the ground that the plaintiffs are coparceners in the joint Hindu family property and therefore, the Trial Court was justified in dismissing the application that there was any requirement of affixing the Court fees of the value of the property in question.
10. The said issue also came up for consideration before this Court in Lt. Col. Hargobind Singh (Retd.) v. Mr. Hargursharan Singh 2010 (4) PLR 452 wherein the defendants raised the issue of affixing the Court fees as per the market value of the suit property, which was allegedly to be joint family property. This Court, firstly, held that the provisions of Order 7 Rule 11 CPC are not to be invoked for rejection of the plaint since these are pure mixed question of law and facts and cannot be adjudicated without adducing evidence in the Trial Court. A co-owner had an interest in the whole property and possession of the co-owner was possession of all joint co-owners and the passage of time did not extinguish the right of the other co-owners who had a right of possession, except in the event of complete ouster and therefore, the plaintiff was not required to pay ad valorem Court fees on the market price of the property. It was held that the Court should not order rejection of plaint at the threshold as it involves very serious civil consequences. Relevant observations read as under:
“22. Now adverting to the next contention of the learned counsel for the defendant that the plaintiff is not in possession of the house in dispute, so, he was required to affix ad valorem court fee on its existing market value, but since he did not pay the requisite fees, so, his plaint is required to be rejected, is not only devoid of merits but misplaced and speculative as well. Again, it is not a matter of dispute that the plaintiff has filed the simple suit for a decree of declaration to the effect that he is joint owner to the extent of 50% of the house in dispute since its allotment/purchase. Assuming for the sake of argument (though not admitted), if the defendant is in possession as co-owner, then, legally his possession as co-owner would be deemed to be the possession of all the co-sharers. A co- owner has an interest in the whole property and also in every part of it. The possession of property by one co-owner is in the eye of law, possession of all the joint owners even if one co-owner is in joint possession of the same. A mere occupation of larger portion or even of entire joint property by one co-owner does not necessarily amount to ouster as possession of one co-sharer would be deemed to be on behalf of all the co-sharers. Passage of time does not extinguish the right of the owner, who is out of possession of the joint property except in the event of complete ouster or abandonment. Therefore, the plaintiff is neither required to pay ad valorem Court fee on the existing market price of the property in dispute nor his suit can be termed to be time barred at this stage, as urged on behalf of the defendant. Therefore, the observations of Delhi High Court in Sudershan Kumar Seth's case (supra) are not applicable to the facts of the present case at this stage.
23. Thus, it would be seen that each of the objections/issues raised by the defendant in the application under Order 7 Rule 11 CPC, as discussed hereinabove, can only be decided on the basis of evidence brought on record by the parties and not otherwise. Hence, the contrary arguments of the learned counsel for the petitioner-defendant “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances.”
11. Accordingly, keeping in view the binding precedent of the Apex Court and in view of the fact that this is not a fit case for exercising powers under Article 227 of the Constitution of India, this Court is of the opinion that the present revision petition is bereft of any merit and the same is, hereby, dismissed.
