Rajinder Kumar Rattan vs Shri Kant Rattan and others

L.N. Mittal, J.

CM No. 10999-CII of 2012

Allowed as prayed for.

CR No. 2582 of 2012

Defendant No. 1-Rajinder Kumar Rattan aggrieved by order dated 03.03.2012 Annexure P-3 passed by learned Additional Civil Judge (Senior Division), Patiala has approached this Court by way of instant revision petition under Article 227 of the Constitution of India to challenge the said order. By the said order, the trial Court has dismissed application Annexure P-1 moved by defendants for dismissal of the suit instituted by respondent No. 1-plaintiff-Shri Kant Rattan for want of court fee. Respondent No. 1-plaintiff has filed suit against defendant No. 1-petitioner and proforma respondents No. 2 to 4 as defendants No. 2 to 4 claiming separate possession of 1/6th share by partition of suit house. As per copy of plaint shown by counsel for the petitioner, respondent No. 1-plaintiff claims to be owner of 1/6th share in the suit house and also claims to be in joint possession of the suit house as co-owner. However, he has sought separate possession of his 1/6th share by partition. Plaintiff has also claimed permanent injunction.

In application Annexure P-1, defendants alleged that the plaintiff has not affixed ad valorem Court fee on market value of the suit property although plaintiff has claimed relief of actual possession.

Plaintiff in his reply Annexure P-2 alleged that plaintiff being in joint possession of the house is not required to pay ad valorem court fee and has affixed proper court fee on the plaint.

Learned trial Court vide impugned order Annexure P-3 dismissed the defendants'' application Annexure P-1. Feeling aggrieved, defendant No. 1 has filed this revision petition.

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

Learned counsel for the petitioner vehemently contended that plaintiff being not in possession of any part of the suit house, is liable to pay ad valorem Court fee on market value of the suit house.

I have carefully considered the aforesaid contention but the same cannot be accepted in the facts and circumstances of the instant case. In a partition suit, if the plaintiff cosharer is in possession of any part of the joint property or is in joint possession thereof along with other cosharers, then plaintiff is not liable to pay ad valorem Court fee on market value of the suit property. However, if the plaintiff is neither in joint possession of the suit property along with other cosharers nor in possession of any part thereof, then the plaintiff is liable to pay ad valorem court fee on market value of the share claimed by him in the suit property.

In the instant case, plaintiff has specifically pleaded in the plaint itself to be in joint possession of the suit property. Even in reply Annexure P-2, the plaintiff pleaded that he is in joint possession of the suit house.

In this view of the matter, at this stage, plaintiff cannot be directed to pay ad valorem court fee on market value of the share in the suit property claimed by the plaintiff. However, if ultimately on adjudication of the suit, the plaintiff is not found in joint possession of the suit property or in any part of the suit property, then appropriate order regarding payment of appropriate court fee can be passed by the trial Court. In view of the 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 warranting interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is, therefore, dismissed in limine.