Net Ram vs Daulat Ram and another

L.N. Mittal, J.—Defendant Net Ram has filed this revision petition under Article 227 of the Constitution of India assailing order dated 13.06.2011 (Annexure P-1) passed by learned Civil Judge (Junior Division), Faridabad thereby dismissing application moved by defendant/petitioner under Order 7 Rule 11 of CPC (in short, CPC) for rejection of plaint.

Respondents/plaintiffs vide plaint Annexure P-2 have sought relief of declaration and injunction inter alia that plaintiffs and defendant are joint owners in actual physical possession in equal shares of the suit property and award dated 20.08.2007 passed by permanent and continuous Lok Adalat is null and void and also seeking injunction against the defendant.

Defendant-petitioner alleged in the application that plaintiffs are liable to pay ad valorem court fee on value of the suit property but have not paid requisite Court fee. It was also alleged that previous suit filed by the plaintiffs relating to same subject matter was dismissed in default on 22.12.2007 and therefore, the instant second suit is not maintainable.

Plaintiffs resisted the aforesaid application and pleaded that since previous suit was dismissed in default, instant second suit is maintainable. It was also alleged that plaintiffs are not liable to pay ad valorem court fee on value of the suit property as they have not challenged any sale deed in the suit. Various other pleas were also raised.

Learned trial Court vide impugned order Annexure P-1 dismissed the defendant''s application. The said order is under challenge in the instant revision petition.

I have heard learned counsel for the petitioner and perused the case file.

Learned counsel for the petitioner vehemently contended that since award/decree of the Court is under challenge, plaintiffs are liable to pay ad valorem Court fee on value of the suit property. The contention can not be accepted. Plaintiffs claim themselves to be cosharers in joint possession of the suit property along with defendant in equal shares and have sought relief of declaration and injunction only and have not sought relief of possession. Consequently plaintiffs are not liable to pay ad valorem Court fee.

As regards maintainability of the second suit, counsel for the petitioner submitted that the previous suit was dismissed in default due to non-appearance of both the parties. Consequently in view of Order 9 Rule 4 of CPC, the plaintiffs have right to file fresh suit.

For the reasons aforesaid, I find no merit in the instant revision petition. Impugned order of the trial Court does not suffer from any perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is accordingly dismissed in limine.