Sarabjit Prakash and Another vs Udyajit Prakash and Others

V.K. Shali, J.

IA No. 5066/2009

This order shall dispose of IA No. 5066/2009 u/s 151 of CPC filed by the plaintiff for recalling the order dated 29.01.2009 and 17.02.2009 and proceeding with the case on merits.

Briefly stated the facts of the case are that the plaintiffs who are two in number filed the present suit for partition, rendition of accounts and damages against the five defendants, namely, Udyajit Prakash, Chander Mohini Kochhar, Sushma Lal, Veena Uppal and Deepa Puri. The partition was sought in respect of property bearing No. 33, Sunder Nagar, New Delhi in which both the plaintiffs have claimed 1/7th share each as it belonged to their ancestors. It was stated in para 7 of the plaint that all the movable and immovable properties left behind by the deceased mother of the plaintiff Raj Mohini was in physical and actual possession of the defendant. In para 8 it was alleged that the defendant No. 1 is in physical possession of the suit property and he has deprived the plaintiffs from actual enjoyment of the same. It was alleged that the defendants are liable to pay damages to the plaintiffs as he was entitled to the same being the co-owner of the suit property.

On the basis of these averments my learned predecessors vide order dated 28.11.2008 had referred to these two paragraphs of the plaint and observed that the plaintiffs were admittedly ousted from the possession, therefore, the plaintiffs will have to pay ad valorem court fees. As they had prayed for possession, the court fee was payable on the same also. It was also observed that the learned Counsel for the plaintiffs had sought time to examine these aspects and also to consider amendment of plaint.

The matter was adjourned to 29.01.2009 on which date the learned Counsel for the plaintiff sought more time to pay the court fees and file the amendment application. The matter was adjourned to 17.02.2009. This Court gave one final opportunity to pay the court fees and file necessary application and the matter was adjourned to 13.04.2009. On 13.04.2009 the present application was filed and it was urged before the Court that the plaintiffs are not liable to pay ad valorem court fees, and therefore, the suit may be heard and decided on merits. It is this application which is under consideration.

The main contention made by the learned Counsel for the plaintiffs in the application is that the order dated 29.01.2009 and 17.02.2009 wherein the plaintiff has been directed to pay ad valorem court fees, deserves to be recalled and the case be proceeded on merits. This is on account of the fact that admittedly the suit property belonged to Raj Mohini. Since Raj Mohini died intestate, therefore, all her legal heirs numbering seven were in constructive possession of their respective undivided share of the property. So far as the first floor of the suit property is concerned, it is alleged that the same is under the tenancy of a tenant and although the defendant No. 1 is receiving the rent, however, the plaintiffs are also entitled to claim the possession as well as the rent in respect of the first floor. It is also alleged that the defendant No. 1 who is the main contesting defendant in the present suit had filed a probate petition on the basis of WILL purported to have been made by the deceased Raj Mohini, however, the said probate petition has been dismissed and therefore it is alleged by the learned Counsel for the plaintiff, that Raj Mohani having died intestate, which would mean that the plaintiffs are in constructive possession of the suit property, and therefore, no ad valorem court fees is payable. The learned Counsel for the plaintiffs in support of his arguments has referred the judgment of the Supreme Court title Neelavathi and Others Vs. N. Natarajan and Others, wherein it has been observed as under:

The general principle of law is that the case of co-owners, the possession of one is in law possession in all, unless ouster exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiff could be called upon to pay court fee u/s 37(1) of the Act on the ground that they had been excluded from joint possession, it is necessary that on a reading of the plaint that they had been excluded from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admissions that the plaintiff had been excluded from possession.

I have heard the learned Counsel for the plaintiffs and perused the judgment cited. So far as the proposition of law laid down by the Supreme Court in Neelavathi and Others Vs. N. Natarajan and Others, is concerned, there is no dispute about the same. The Supreme Court in the said case has categorically observed that for the plaintiff being called upon to pay the court fees u/s 39 of the Court Fees Act, he must have been excluded from the joint possession. In the facts of the said case the Court had in the light of averments made, in the plaint held that the plaintiffs could were in joint possession. In the case reported there was nothing mentioned in the plaint itself that the plaintiff is not in possession. On the contrary, he had stated that he is in joint possession and it was observed by the Apex Court that merely because the rentals in respect of the said suit property was being received by one of the co-owners it does not mean that the plaintiffs has been excluded from the possession.

On the contrary, in the case in hand the averments made by the plaintiffs in para 8 of the plaint are that he is not in possession and that the rent in respect of the first floor of the suit premises is being received by the defendant No. 1 though the plaintiff can recover the possession and rent from the tenant as a co-owner. If these are the averments then certainly, this clearly shows that the plaintiff admittedly of his own saying is not in possession and he is liable to pay ad valorem court fees with regard to the share which comes into his hand. There is no reason, much less any justification for recalling the order dated 29.1.2009 against the plaintiffs. In addition to this, the plaintiffs have curiously mentioned recalling of order dated 17.02.2009 while as the main order by virtue of which the plaintiff was asked to pay the ad valorem court fees is dated 28.11.2008 regarding which there is no reference at all. Apart from this the very conduct of the plaintiff also goes against him from recalling the said order dated 29.01.2008 because after the learned Judge observed that the plaintiff is liable to payment of ad valorem court fees the learned Counsel for the plaintiff had taken time twice to do the needful. Thus he had accepted that he would pay the ad valorem court fees. The question that the plaintiff is liable to pay court fees in view of the averment made by him that he is not in possession supported by the judgment in Chief Inspector of Stamps Vs. Indu Prabha Vachaspati (Smt) and Others,

Similarly, two of the judgments of our own High Court have also expressed similar views that if a party is not in a possession then he is liable to pay ad valorem court fees. These two judgments are Smt. Rani Devi Vs. Ashok Kumar Nagi and Another, and Prakash Wati Vs. Dayawanti and Others, .

For the reasons mentioned above, I am of the view that the application by the plaintiff is totally misconceived, and therefore, the same is dismissed. The suit not having been properly valued for the purpose of court fees and jurisdiction, the plaintiff in terms of Order VII Rule 11 Sub-clause (c) and (b) is given one final opportunity to value the suit properly for the purpose of court fees and jurisdiction and pay appropriate court fees on his share.

Let the needful be done within a period of four weeks. In the event of the ad valorem court fees is not paid, the suit shall be peremptorily treated as rejected under Order VII Rule 11 of the Code of Civil Procedure.

List on 01.11.2010 for further proceedings.