Ram Chander vs Rattan Lal

M.M. Kumar, J.—This revision petition is directed against the order dated 3.4.2001 passed by the Civil Judge (Jr. Division), Kurukshetra dismissing the application of the defendant-petitioner filed under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for brevity, ''the Code'') wherein the prayer was made for rejection of the plaint on the ground that the plaintiff-respondent did not affix the proper court fee. The application was dismissed on 3.4.2001 by the Civil Judge by recording the following order:-

"An application for rejection the plaint on the ground that plaintiff has not affixed the proper court fee. Heard, at this stage, there is no ground to direct the plaintiff to affix court fee as he has sought relief of mandatory injunction against the defendant. Accordingly, application under Order 7 Rule 11 stand declined.

Written statement filed. Now to come up on 15.5.2001 for filing replication and framing of issues."

Shri R.S. Longia, learned Counsel for the defendant-petitioner has drawn my attention to the averment made in para 3 and the prayer made in the plaint wherein substantial relief of possession has been made. According to the learned Counsel, the court fee payable by the plaintiff-respondent has to be u/s 7(v)(e) of the Court Fee Act, 1870(for brevity, the Act'')- In support of his contention, the learned Counsel has placed reliance on a Full Bench Judgment of this Court rendered in the case of Niranjan Kaur v. Nirbigan Kaw (1982) 84 PLR 127. According to the learned Counsel, Full Bench has taken the view that in deciding the question of court fee, the court is required to look into the allegation made in the plaint to find out what it the real relief claimed. Mere astuteness in drafting the plaint is not to be permitted the court is not prevented from looking at the substance of the relief claimed. He has also placed reliance on the judgment of this Court in the case of Anil Rishi v. Gurbaksh Singh 1998 2 P.L.R. 417 and also another judgment of this Court in the case of Ranjit Singh v. Balkar Singh 2000 2 P.L.R. 382. According to the learned Counsel, the valuation of the suit furnished by the plaintiff-respondent is Rs.200/- and effectuation of the court fee of Rs.25/- on the plaint is patently against Section 7(v)(e) of the Act. He has further alleged that amount of Rs.30,000/- has already been paid to the plaintiff-respondent and the defendant-petitioner was given the possession which is part performance of contract under Sections 53-A of the Transfer of Property Act, 1882.

On the other hand, Shri Pritam Saini, learned Counsel for the plaintiff-respondent has argued that the Civil Judge on 3.4.2001 vide impugned order dismissed the application of the defendant-petitioner only at that stage. He has argued that there is no final decision taken and the defendant-petitioner is at liberty to move a fresh application in that regard. In support of his contention, Shri Saini has relied on a judgment of Delhi Hihg court in Ashoka Builders and Promoters v. Edward Keventer (Successors) Pvt. Ltd. 1994 2 P.L.R.D. 29. He has drawn my attention to the last portion of para No. 13 and advanced the argument that if after filing the written statement objection is raised with regard to valuation of the suit for the purposes of court fee and jurisdiction a specific issue has to be framed by the Court and on the evidence led by both the parties the Court may reach an appropriate finding and if any directions are required to be issued to the plaintiff-respondent then the Court would be competent to issue those directions.

I have thoughtfully considered the submissions made by the learned counsel for the parties and am of the view that this revision petition is liable to succeed. The argument of the learned counsel for the plaintiff-respondent is that the case has not been finally decided under Order 7 Rule 1 l(b) of the Code, cannot be accepted in view of the fact that the Civil Judge has reached a categorical finding in the impugned order stating that there was no ground to direct the plaintiff-respondent to affix court fee as relief of mandatory injunction has been sought against the defendant-petitioner. The judgment relied upon by the defendant-petitioner lend substantial support to the suit is for possession as is apparent from the averments made in para 3 read with para concerning relief. The argument that an issue can be framed after filing of the written statement and to that effect the defendant-petitioner is required to move an appropriate application cannot be accepted because the impugned order would always cause obstruction in the success of such an application. Therefore, the judgment in the case of Ashoka Builders and Promoters (supra) has no application to the case in hand. Hence, the impugned order dated 3.4.2001 is liable to be set aside to the extent that it has dismissed the application of the defendant-petitioner for rejection of the plaint on the ground of insufficient payment of court fee.

For the reasons recorded above, this revision petition succeeds. The order dated 3.4.2001 is set aside. The Civil Judge is directed to determine actual court fee payable by the plaintiff-respondent by taking into consideration the averments made in para 3 and relief clause. Let this question be determined first as the valuation of the suit assessed by plaintiff-respondent is Rs. 200/- for the purposes of court fee and jurisdiction and Rs. 15/- has been paid as the court fee. The Civil Judge is further directed to take a decision on this question within a period of 2 months from the date of receiving copy of this order.