* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 10.08.2011
+ CM(M) No. 928/2011 & CM No. 14917-18/2011
SHRI JAIPAL CHANDEL & OTHERS ........... Petitioners
Through: Mr.M.S.Rohilla, Advocate.
Versus
SH. SHRI KRISHAN & OTHERS ..........Respondents
Through: Mr.Jatan Singh, Advocate for
R-1 to R-4.
Counsel for MCD.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. The petitioner is aggrieved by the order dated 16.07.2011 whereby he has been directed to pay ad-valorem court fee on the plaint filed by him.
2. Record shows that the present suit is a suit for declaration, permanent and mandatory injunction. The averments in the plaint are relevant. The contention of the plaintiff is that there was a CM(M) No.928/2011 Page 1 of 4 common gali/road measuring 19" in between house of the plaintiff and the defendants; defendants are strong and influential persons; they have raised an illegal and unauthorized construction in this common gali to block the free passage of the local residents including the plaintiff. Criminal complaints had also been filed. In para 13 of the plaint it has been averred that a writ petition had also been filed earlier in time wherein the defence of the defendants was that they have purchased this suit land. Contention is that the defendants are encroaching upon the public land which is not permissible in law. Prayer made in the plaint is that a declaration be made that the power of attorney, agreement to sell and receipt dated 08.03.1989 relied upon by the defendants to substantiate their defence that they have purchased this suit property be declared null and void; decree of perpetual injunction be passed against the defendants restraining them from raising any unauthorized or illegal construction in the suit land; decree of mandatory injunction be also passed against the defendants directing them to demolish the wall which they have wrongly made in the common gali. These averments in the plaint had been construed in the impugned order; the impugned order had noted that the plaintiff not being in possession, by way of the present suit is actually seeking a relief of possession although it has been CM(M) No.928/2011 Page 2 of 4 couched as a suit for declaration and mandatory injunction; in this view of the matter, the fixed court fee filed by the plaintiff had been disallowed. The impugned order had directed the plaintiff to make up the deficiency in the Court fee and pay ad-valorem court fee.
3. On advance notice, counsel for the respondents have put in appearance. Learned counsel for respondents No. 1 to 3 has submitted that the impugned order in no manner calls for any interference; his submission being that the trial Court had correctly relied upon the judgments to hold that the suit filed by the plaintiff was a suit actually seeking a relief of possession.
4. Submission of learned counsel for the respondents has no force. The question as to whether ad-valorem court fee has to be paid or fixed court fee has to be paid has to be deciphered by reading the averments made in the plaint; plaint has to be read as a whole; reliefs as noted supra are that a decree of declaration be passed that the documents relied upon by the defendants claiming their title to the common gali/public land be declared null and void; decree of perpetual injunction be passed against the defendants restraining them from interfering in this public land/ gali; mandatory injunction be also passed against the defendants CM(M) No.928/2011 Page 3 of 4 directing them to demolish the wall wrongly made in the gali. Admittedly the plaintiff is not in possession of the common passage/gali. His contention in the plaint is that this is a common passage in between the house of the plaintiff and the defendants and this passage is common for the user of public persons; it is public land. The plaintiff has nowhere averred in the plaint and nor has it been specifically prayed that he seeks possession of the public land; his contention being that it is public land. The impugned order recording this finding clearly suffers from an illegality for which interference is called for.
5. The plaintiff not seeking the relief of possession; nothing prevented him from filing the suit in the present form by paying a fixed court fee; his case falls within the ambit of Section 7(iv)(d) and Article 17 (iii) of Schedule II and of the Court Fee Act which provides that a fixed Court fee has to be affixed on such a suit. Impugned order suffers from an infirmity on this count. It is set aside. Petition is allowed.
Order Dasti.
INDERMEET KAUR, J.
AUGUST 10, 2011 a CM(M) No.928/2011 Page 4 of 4