Durga Mudi and Others vs Shyamal Mudi and Others

Indrajit Chatterjee, J.—1. This is an application under Article Constitution of India wherein the order No. 2 dated 04-09-2013 has been assailed before this Court as passed by the learned 2nd Court of Civil Judge (Senior Division), Howrah, in Title Suit No. 110 of 2013 wherein the learned Trial Court was pleased to dismiss this application as filed by the defendants/opposite parties under Order 7 Rule XI of the Civil Procedure Code (hereinafter called as the said Code).

The case of the plaintiff as made out in the plaint can be stated in brief thus:--

"That the suit property as mentioned in the schedule A of the plaint was purchased by the father of the plaintiff, that is, Jaladhar Mudi since deceased in the benam of his wife, Smt. Durga Mudi, that is the defendant No. 1 of the instant suit and the petitioner No. 1 of this application but the said property was not purchased for her own benefit and actually, it was purchased for the benefit of the entire family of Jaladhar Mudi. (And as such, it was claimed by the plaintiff that Jaladhar purchased the property in the benam of his wife, that is, Durga Mudi.) The said deed was registered on 8th February, 2000 for a valuable consideration from Asto Adhikari, son of late Balai Chandra Adhikari and Kalpani Adhikari, that is, the wife of Asto Adhikari. It was further claimed by the plaintiff/opposite party before this Court that after purchasing the said property, the father of the plaintiff allowed her wife to mutate her name with the Howrah Municipal Corporation and started residing in the suit property along with his wife, I repeat with the defendant No. 1 of the suit and his two sons, i.e. the plaintiff and the defendant No. 2 of the instant suit after making necessary repair works. It was further claimed that although in the sale deed the price of the property was shown to be two lakh thirty four thousand but the father of the plaintiff actually paid Rupees eight lakh to the vendors."

It was also the claim of the present plaintiff/opposite party that the mother of the plaintiff, that is, defendant No. 1, is the house wife by occupation and when her marriage took place the financial condition of her parental family was poor and as such, it has been claimed by the plaintiff that actually the said defendant No. 1 had no capacity to purchase the said property. It has been claimed in the plaint that economic condition of the father of the plaintiff was very good as he was the owner of M/s. Rising Engineering Works and the said factory was situated on the property of Guru Prasad Ghosh which was taken on rent by the father of the plaintiff. It has also been claimed that apart the property as mentioned above, the father of the plaintiff purchased a property on 30-05-1990 from one Surya Narayan Jha and Harsha Narayan Jha as per deed No. 1679 of 1995 which has been described in the schedule C of the plaint.

The plaintiff/opposite party has claimed in the plaint that the plaintiff got married on 8th December, 1994 and he separated himself from the joint mess within 9 years of that marriage. It has also been claimed that Jaladhar died on 25-11-2008 leaving the plaintiff and the defendants as his sole legal heirs in respect of his estate including some money in a bank account and some cash to the tune of Rs. 50 lakhs.

By filing the suit in question, the plaintiff has prayed for a preliminary decree for partition by declaring that the plaintiff has 1/4th share in respect of the suit property mentioned in the schedule of the plaint and also for a declaration that the defendants have jointly 3/4th shares in respect of the property mentioned in the schedule of the plaint and also for a declaration that the alleged deed of gift dated 19-11-2012 being deed No. 09611 of 2012 is void ab initio and not binding upon the plaintiff.

It was submitted by the learned Advocate appearing on behalf of the petitioners by taking me to page No. 36 (annexure C of the petition) wherein he has claimed that the sale deed which has been referred in schedule A of the plaint was not properly valued by the plaintiff and the plaintiff did not file the proper court fees.

Learned Advocate for the petitioners took me to Order 7 Rule XI(d) which runs thus : "where the suit appears from the statement in the plaint to be barred by any law". He also took me to Section 4 of the Benami Transactions (Prohibition) Act, to substantiate his argument that actually the mother of the defendant was a name lender in the deed as mentioned in the schedule A of the plaint. He also referred to a decision of this Court as reported in (2011) 2 WBLR (CAL) 539 wherein this Court observed that while dealing with one application under Order 7 Rule XI of the Code, the trial court must take into consideration the entire facts of the case and should not concentrate only on the petition under Order 7 Rule XI of the Code. He also cited one Apex Court judgment as reported in , AIR 1977 (SC) 2421 in the case of T. Arivandandam v. T.V. Satyapal & Ors. Learned Counsel also cited another decision of the Hon''ble Apex Court as reported in , AIR 2003 (SC) 759 in the case of Saleem Bhai & Ors. v. State of Maharashtra & Ors; wherein the Hon''ble Apex Court observed that while answering one application under Order 7 Rule XI of the Code, the trial court must consider the plaint as a whole while assessing that application. He also cited a Single Bench decision of this Hon''ble Court as reported in , 2010 (3) Cal LT 79 in the case of Sha-San infrastructures Pvt. Ltd. v. Thakur Corner Byabsayee Kalyan Samity & Ors; wherein the Single Bench asked the trial court to consider the plaint while assessing the application under Order 7 Rule XI of the Code.

On behalf of the opposite parties/plaintiff, it was argued by Mr. Gupta, the learned Counsel that the application as filed under Article 227 of the Constitution of India is regarding only non-payment of sufficient court fees. He submitted that under Section 149 of the Code of Civil Procedure the court has every power to direct the party to pay the deficit court fees. He also drew the attention of this court by taking me to Order 7 Rule XI(b) of the Code which runs thus:--

"11. Rejection of plaint.--The plaint shall be rejected in the following cases:-- where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;''" and thus he submitted that the application as made under Order 7 Rule XI of the Code before the learned trial court was premature one. Learned Counsel also submitted that in an application under Article 227 of the Constitution of India, this court cannot go into the merits of the case and disputed question of facts and law cannot be decided at this stage by this court. It was further argued by taking me to the grounds as made out in this application, learned Counsel submitted that in this forum also the present petitioners only took up the matter as regards non-payment of sufficient court fees. He submitted that under Section 149 of the Code, learned trial court has every right to assess the court fees and even to direct the party to pay the deficit amount of court fees within a specified time. He further submitted that this suit being a suit for partition cannot be disposed of in this manner by filing an application under Order 7 Rule XI of the Code. He cited a decision of this court reported in , 2015(1) CHN (CAL) 121 (Kanai Lal Dutta v. Babu Das Bairagya) wherein the single Bench of this Court relying on the other decisions of this court was pleased to determine that the plaintiff/petitioner is entitled to value the suit on the basis of the principal relief claimed by him and other reliefs are merely consequential or incidental to the principal relief and the additional question of valuation is inter se the plaintiff and the State and the defendant even with a bona fide intention is precluded from challenging the same."

In reply it was submitted by Mr. Gupta, learned Counsel appearing on behalf of the petitioners, that if the present application under Article 227 of the Constitution of India is found by this court to be premature one, then this court can give liberty to the present petitioners to file another application under Order 7 Rule XI of the Code.

I have gone through the copy of the plaint, copy of the objection petition, certified copy of the impugned order and also the copy of the petition filed by the defendants under Order 7 Rule XI of the Code. I have also taken into consideration the decisions relied upon by the parties. It is true that while disposing of the application under Order 7 Rule XI of the Code, every court must take into consideration the plaint as filed by the plaintiff.

I have gone through the impugned order giving rise to the present revisional application. This court is satisfied that while disposing of that application under Order 7 Rule XI of the Code, the learned trial court duly considered the petition under Order 7 Rule XI of the Code and also the case of the plaintiff/opposite party before this court. This being the position, the decision of this court as cited by the learned lawyer of the petitioner cannot apply in the present case before me.

On reading and rereading the petition as filed under Order 7 Rule XI of the Code, it appears that the said application was filed only as regards the non-payment of proper court fees. The question of Benami Transaction (Prohibition) Act was also not pleaded in that petition and naturally the learned trial court also did not consider that aspect of this case. It is true that before this court learned Advocate appearing on behalf of the petitioners took up the matter under Section 4 of Benami Transaction (Prohibition) Act but when that was not there in the pleadings of the parties, naturally that portion of the claim now taken up before this court was not answered.

This court considering the case as made out is satisfied that the present petitioners only made up a case for non-payment of proper court fees. This court is not willing to shut the mouth of the plaintiff/opposite party as regards the claim under Section 4 of the said Act. Let the matter be kept open for the decision of the learned trial court.

I have already mentioned that the learned Advocate appearing for the opposite party has cited the decision of this court as referred to earlier as decided by a Single Bench of this court wherein the Hon''ble Court was pleased to quote paragraphs Nos. 9 and 10 of the judgment of this Hon''ble Court as cited in , (2006) 1 WBLR (Cal) 374 (Paresh Chandra Nath v. Naresh Chandra Nath):

"9. The plaintiff claims that the defendant No. 1, who is his brother, has allegedly obtained a deed of gift from him fraudulently giving the plaintiff an impression that the plaintiff was executing a power of attorney in favour of the defendant No. 1 for protecting the boundary of the land of the plaintiff. This is a suit for declaration simpliciter and the relief of setting aside of the deed is consequential from the careful reading of the plaint, it is clear that the prayer for declaration that the defendant No. 1 obtained that deed of gift by practicing fraud on the plaintiff is the substance of the claim.

Whether proper Fees are paid on a plaint is primarily a question between the plaintiff and the State. The learned Judge in the lower Appellate Court rightly held that the suit has been properly valued and proper Fees have been paid. The defendant, who may believe and even honestly, the proper Fees have not been paid by the plaintiff, has still no right to move the superior Court against the order adjudging payment of Fees payable on the plaint."

In that decision the other decision of this court as reported in , (2008)2 CLJ (Cal) 306 (Kartic Mondal v. Biman Sen) which runs thus:--

"27. The cause of action pleaded by the plaintiffs in the plaint as well as the reliefs claimed in the suit have already been mentioned above. On careful reading of the averments made in the plaint as well as the reliefs claimed therein, this Court holds with all certainty that the reliefs which were claimed by the plaintiffs in the suit either by way of injunction or by way of recovery of possession are dependent upon the relief for declaration of title. This Court also holds that the relief for declaration is not the only relief which is sufficient in the facts of the instant case and if declaration only, is sought in such case, the suit will be barred under Section 34 of the Specific Relief Act. In fact, the plaintiffs are entitled to diverse reliefs in the facts of the instant case but the reliefs by way of injunction and/or recovery of possession cannot be granted unless their title in the suit property is declared.

This is not a suit where the defendants were described as rank trespassers. The plaint averment shows that the defendants are in possession of the suit property on a show of title. The plaintiffs, no doubt, have challenged the legality of the defendants'' title in the property on the strength of the settlement of the suit land given by the State of West Bengal in favour of the plaintiffs'' predecessor-in-interest. This is, in fact, for tracing the title of the real title holder, declaration of the plaintiff''s title was sought for, in the suit. If the said declaration is not granted then the other reliefs either by way of injunction or by way of recovery of possession cannot be granted independently in favour of the plaintiff. As such, this Court has no hesitation to hold that the relief by way of declaration is the principal relief in the suit and the relief for injunction and recovery of possession are incidental and consequential reliefs. As such, the plaintiffs are required to value the entire suit as per the provision contained in section 7(iv) (b) of the West Bengal Court Fees Act, 1970 and not under section (v)(b) of the said Act as contended by Mr. Dasgupta. The decisions which were cited by Mr. Mitra and Mr. Roy Chowdhury are squarely applicable in the facts of the instant case and thus, this Court has no hesitation to hold that the learned Trial Judge did not commit any illegality by rejecting the defendants'' application for return of the plaint.

In my opinion the suit has been properly valued and the learned Trial Judge has jurisdiction to try the said suit".

In another decision reported in Kanailal Dutta (Supra), we get reference of other decisions of this court report in (2009)1 WBLR (Cal) 227 wherein the Hon''ble single Bench held:--

"11. With regard to the judgments cited by the learned Advocate for the opposite parties, it appears upon perusing them that the consistent view of the Courts with regard to whether proper Court fees are paid on a plaint, is that the same is primarily a question between the plaintiff and the State. The defendant, who may believe and even honestly, that proper Court fees has not been paid by the plaintiff, still has no right to move the superior Court of appeal or in revision against the order adjudging payment of Court fees payable on the plaint. In my view, there is no reason as to why I should digress and differ from the consistent view and the principles of law laid down for decades by our Courts. The order impugned speaks with clarity and there is no infirmity of reasoning whatsoever or any error of law, which would warrant interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India".

Thus, considering the position of law involved and the facts and circumstances of this case, this court is of the opinion that there is no reason to dismiss the order of the learned trial court. The order of the learned trial court is well reasoned. It has been decided time and again by this court that any dispute between the parties as regards payment of court fees the defendants have practically no say. It is a matter between the state and the plaintiff. No other point was agitated by the learned Advocate of the defendants before the learned trial court and in the petition filed under Order 7 Rule 11 is silent as regards other infirmities of this case.

The argument of the learned advocate appearing on behalf of the petitioners that the present petitioners be allowed to file another application under Order 7 Rule 11 of the Code if this Court answers that the application before the trial court was filed at a premature stage is not convincing to this court, when one application has already been made under the said Rule. The trial court will decide as to whether such application may be filed again under Order 7 Rule 11 of the Code.

Thus, the learned trial court was not at fault in not deciding the other issues as pointed out before this court, that is, the Benami Transaction (Prohibition) Act and also that the suit was otherwise defective. Such plea as taken up at the stage of hearing of this application under Article 227 of the Constitution of India being not agitated in the memo of appeal, those issues are not answered. All these issues are the questions of fact and law, which may be substantiated by adducing oral or documentary evidence. The hands of the learned trial court will be clear to assess the issues as may be raised by the learned Advocates of the parties before that court.

Thus, this Civil Order is answered in the negative but there will be no cost for this litigation.

The order impugned is hereby confirmed.

The parties to inform the trial court as regards the decisions of this court.

Certified copy of this order be given to the parties as per rules.