Smt. Surjit Kaur vs Harkirat Singh and Others

Jai Singh Sekhon, J.—The house in dispute is situated in Mohalla Preet Nagar, Ladowali road, Jalandhar city, and belonged to Naurang Singh father of Smt. Surjit Kaur, plaintiff, and defendants No. 2 to 8 Defendant No. 1 is the son of defendant No. 2, and defendant No. 9 is the sister of late Naurang Singh. Naurang Singh executed a will bestowing the house upon defendants No. 1, 2 and 7 only. On 27-10-1976, the parties arrived at a written compromise, whereby defendant No. 1 agreed to relinquish his share in favour of the plaintiff. Again on 22-6-1980 the parties agreed to divide the property in dispute in six equal shares in the names of defendants No. 1, 6, 7, 8 and 9 but a few days thereafter the plaintiff learnt that defendants No. 1, 2, 7 and 9 have entered into agreement dated 24-7-1982 to sell the house to defendant No. 10. She was thus forced to file a suit for declaration to the effect that she is owner of 1 /6th share in the house in dispute besides craving for permanent injunction that defendants be restrained from alienating the house in any manner whatsoever,

Defendants No. 3, 5 and 6 admitted the claim of the plaintiff but the remaining defendants resisted this suit by challenging the validity of the above referred two agreements. They also raised the preliminary objection of the suit being not properly valued for the purposes of Court fee and jurisdiction. It was also maintained that the property had been sold and that this suit has become infructuous.

The trial Court vide its order dated 20. 7. 1984 dismissed the suit of the plaintiff by holding that Harkirat Singh, defendant No. 1, a beneficiary under the will, being not a party to the above referred agreements these were of no consequence. It was also held that the plaintiff being not in possession of the suit property, suit for mere declaration is not maintainable in view of the provisions of Section 34 of the Specific Relief Act, 1963. Under issue No. 4, it was held that Harkirat Singh defendant No. 1, had sold the house for Rs. 1,30,00/to defendant No. 10 and that as the plaintiff being claiming l/6th share in the property, she was required to affix Court fee of Rs. 2,057 50 P. on the value of her share at Rs. 21,666/- but she only affixed a Court fee of Rs. 32.50 P. Thus "While dismissing the suit with costs, an intimation was sent to the Collector for recovery of the remaining Court fee from the plaintiff:

Against the above referred order of the trial Court, the plaintiff went in apppal. The learned Additional District Judge vide impugned order dated 27-3-1987 directed the plaintiff-appellant to make good the deficiency in Court fee on the plaint as well as on the memorandum of appeal up to 29-4-1987 Being aggrieved against that order, she has come up in revision petition.

Mr. M. S. Rani, the learned counsel for the plaintiff-petitioner, contended that the trial Court should have decided the issue regarding the payment of proper Court fee first and could have rejected the plaint under the provisions of order VII Rule 11 of the Code of Civil Procedure, 1908, if the plaintiff failed to make good deficiency in Court fee. Thus he maintained that no opportunity was given to the plaintiff to relinquish a part of the relief pertaining to permanent injunction as by then, defendant No. 1 had already sold the house in dispute to defendant No. 10. He further maintained that the appellant had abandoned a part of the relief pertaining to permanent injunction before the appellate Court and that the appellate Court has not taken into consideration this fact. Mr. J S. Bhatia, the learned counsel for the respondents, on the other hand maintained that the plaintiff having not abandoned her part of the claim before the trial Court as well as before the appellate Court specifically, the impugned order of the trial Court as well as first appellate Court cannot be said to be illegal it was also maintained, the plaintiff was well aware of abandoning her claim before the trial Court especially when the defendants had averred having already sold the property in dispute and thus there was no question of adjourning the case for making good the deficiency in Court fee.

The provisions of rule II order VII of the CPC relating to rejection of plaint where the relief claimed is under valued and the plaintiff fails to correct the valuation within time as required by the Court read as under :

"The plaint shall be rejected in the following case"

(a) ......... .....

(b) 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 ;

(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so ;

(d) Where the suit appears from the statement in the plaint to be barred by any law :

(Provided that time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff)."

A perusal of the above referred provisions leaves no doubt that it is mandatory for the trial Court to require the plaintiff to make good the deficiency in Court fee after coming to the conclusion that it was not correctly valued for the purposes of Court fee. This conclusion is further supported as the lapse on the part of the plaintiff to make good the deficiency in Court fee would entail rejection of the plaint itself. There is no dispute with the legal proposition that under the provisions of Rule 1 of Order XXIII, the plaintiff can abandon his claim or part of claim or withdraw the suit There is no doubt that the plaintiff could have abandoned a part of her claim in the present case regarding the relief of injunction for restraining the defendants from alienating the house in dispute especially when defendant No. 1 had already sold this house to defendant No. 10 but such option had to be exercised by her before the rejection of her plaint. The provisions of Rule 11 of Order VII of the CPC make it imparitive for the Court to ask the plaintiff to make good the deficiency in payment of Court fee within a stipulated period. Within that period, the plaintiff may by giving up a part of his claim or paying the deficiency in Court fee-legally avoid the legal consequences of rejection of the plaint. This view is supported from the decision of the Division Bench of East Punjab High Court in Gainda Mal v. Madan Lal and Ors.. (1948) 50 P. L. R. 118. In that case, the plaintiff applied to the Court for reducing his claim after the Court had directed him to make good the deficiency in Court fee but the trial Court did not allow him to do so and rejected the plaint. Under these circumstances, the High Court held that if the plaintiff wishes to withdraw his suit or abandon a part of his claim, he can do so at his sweet will and the Court cannot prevent him from doing so.

In the case in hand, the plaintiff could have abandoned her part of the claim regarding the permanent; injunction if the trial Court had given her the time to make good the deficiency in Court fee. Similarly, the plaintiff could have abandoned her part of the claim before the lower appellate Court where the appeal is still pending.

The question then arises whether the trial Court had committed any illegality in dismissing the suit on merits without affording the time to the plaintiff to make good the deficiency in Court fee. Under the circumstances of the case, it appears that the trial Court had committed an illegality in dismissing the suit of the plaintiff on merits without affording her times to make good the deficiency in Court fee because had it done so, then the plaintiff could have easily waived her part of the claim relating to permanent injunction.

The impugned order of the appellate Court reveals that the plaintiff-appellant was directed to make good the deficiency in Court fee on the plaint as well as on the memorandum of appeal by 29-4-1987. The first appellate Court has not considered the above referred aspect of the matter, but appears to have been swayed by the provisions of Section 12 of the Court Fees Act that such decision of the trial Court regarding the deficiency in Court Fee is final between the parties and cannot be challenged in appeal, it appears that the decision of the Supreme Court in Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, was not brought to the notice of the first appellate Court that the finality of the order passed u/s 12 of the Court Fees Act is limited only to the extent of valuation pure and simple and does not relate to the category under which a suit falls. It was further held that the order rejecting the plaint being a decree as defined u/s 12 of the Code of Civil Procedure, the appeal is maintainable against such order regarding the other aspects of the matter.

Thus in view of the law laid down by the Supreme Court, the first appellate Court had wrongly taken the view that the cognizance of the appeal cannot be taken unless the plaintiff-appellant makes good the deficiency in Court fee on the plaint as ordered by the trial Court as well as on the grounds of appeal. The appeal being in continuation of the suit, it can be well said that the plaintiff-petitioner can exercise her right of giving up a part of her claim regarding permanent injunction at appellate stage also as the trial Court had not afforded her any opportunity of making good the deficiency in Court Fee or giving up her part of the claim.

In view of the above findings, this revision petition succeeds and the impugned order of the appellate Court relating to making good the deficiency in Court Fee on the original plaint is set aside with the direction that the plaintiff appellant should be afforded an opportunity to amend her part of the claim if she so desires in the memorandum of appeal and plaint because remanding the case to the trial Court would result in unnecessary hardship to the parties especially when the trial Court had given its findings on the merits of the case also. The parties are left to bear their own costs in view of the peculiar circumstances of the case. The appellate Court shall decide the appeal on the merits of the case if after giving up the relief of permanent injunction, the suit and appeal are not undervalued for the purposes of Court Fee or otherwise, if the plaintiff-petitioner makes good the deficiency in Court Fee.

Parties through their counsel are directed to appear before the trial Court on 26-9-1989.