* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:27.03.2012.
+ CM(M) 1191/2009 & CM No. 15058/2009
MAHARANI BAGH RESIDENT
WELFARE ASSOCIATION ..... Petitioner
Through Mr. Atul Nigam, Adv.
versus
MUNICIPAL CORP OF DELHI & ORS ..... Respondents
Through Mr. Ajay Arora, Adv. for MCD.
Mr. Amit Mehra, Adv. for DDA.
Mr. Prakash Chander, Adv. for
R-3 to R-6.
Mr.S.P.Pandey, Adv. for R-7 & 8.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 The order impugned is dated 17.08.2009; the Court had answered the preliminary issue which was with regard to the valuation and reads herein as under:-
"Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD"
2 The Court had noted that the requisite Court fee has not been affixed by the plaintiff and had directed him to comply with its CM (M) No. 1191/2009 Page 1 of 5 directions to affix the Court fee on all the reliefs claimed by him; the trial Court was of the view that what the plaintiff was seeking by way of this plaint was a declaration with consequential reliefs for which ad- valorem Court fee was required to be affixed.
3 Averments made in the plaint have been perused. Suit was filed by Maharani Bagh Resident Welfare Association against nine defendants; contention is that defendants No. 3 to 7 are in possession of the respective portions of property i.e. Khasra Nos.809/1/1 and 809/1/2 in the revenue estate of Kilokri, tehsil Hauz Khas renumbered as plots No. 7-B/1, 7-B/2, 7-B/3, 7-B and 7-C. These are admittedly five properties; contention of the plaintiff being that five defendants i.e. defendants No. 3 to 7 are proposing to raise illegal and unauthorized construction therein; the sanctioned plan granted by the MCD (defendant No. 1) in their favour be directed to the cancelled; they be restrained from transferring, alienating or parting with possession of this suit land; they also be injuncted from carrying out any construction in the aforenoted land; relief of permanent prohibitory injunction as also the injunction coupled with the prayer of cancellation of the sanctioned plan accorded by defendant No. 1 in favour of the said defendants has CM (M) No. 1191/2009 Page 2 of 5 been made.
4 There is no dispute to the proposition that the averments made in the plaint alone have to be perused to decide the question of valuation; a plaint which has been couched in a language which is actually to defeat the purpose of paying revenue and the prayer made in the plaint otherwise seeks to hide the real intent of the plaintiff has to be examined in the aforenoted light to determine the valuation which has to be accorded.
5 The averments made in the plaint including the averments made in para 35 coupled with the prayer clause clearly show that what the plaintiff is seeking is the relief of declaration; declaration being to the effect that the sanctioned plan granted by the MCD in favour of defendants No. 3 to 7 be declared null and void; their rights which have been accorded to them qua this suit property in terms of the sanction plan be declared as ousted and the said defendants be restrained from carrying out any construction activity in the aforenoted land or of creating any third party interest in the said land. The valuation is contained in para 42 of the plaint; for the relief of prohibitory permanent injunction, suit has been valued at Rs.5,05,000/- on which a court fee of CM (M) No. 1191/2009 Page 3 of 5 Rs.7,275/- has been paid; for the relief of cancellation of the sanction, the Court fee of Rs.13/- has been affixed; so also for the relief of other injunctions for which fixed Court fee has been affixed. These averments show that there are five properties which are involved and owned by five different sets of the defendants; learned counsel for the defendant fairly conceded that he is not raising the question of mis-joinder of parties but since there is more than one relief claimed under Section 17 of the Court Fee Act, the aggregate amount of the fee as per each subject should be directed to be paid by the plaintiff.
6 The Apex Court in AIR 1973 SC 2384 Shamsher Singh Vs. Rajinder Prashad & Others had noted that where the relief of injunction is prayed for but the relief cannot be granted without a declaration, an astuteness in drafting the plaint should not impede the Court from looking at the substance of the relief which is really asked for. Section 7(iv)(c) of the Court Fee Act and Section 8 of the Suit Valuation Act cogently show that the valuation of the suit for the purpose of court fee must correspond to the valuation for the purpose of jurisdiction. Present suit is in fact nothing but a suit for declaration with a consequential relief of injunction for which ad-valorem Court fee was rightly directed CM (M) No. 1191/2009 Page 4 of 5 to be paid by the plaintiff.
7 Reliance by learned counsel for the petitioner upon a judgment in AIR 1955 Mysore 65 H.R. Patel Vs. C.G. Venkatalakshamma & another is misplaced; facts of this case are distinct; in this case the plaintiff was asking for a declaration against the defendant who was making certain illegal constructions; in the instant case, the plaintiff has himself accorded a legal sanction in favour of the defendant; his grievance is that this legal sanction accorded by the MCD (defendant No. 1) in favour of the plaintiff be directed to be set aside; the legal character of the right of the defendant to construct on this suit land has been recognized by the plaintiff himself. This judgment is wholly inapplicable.
8 Impugned order suffers from no infirmity. This petition is an abuse of the process of the Court; it is dismissed with cost of Rs.10,000/-. Dasti.
INDERMEET KAUR, J MARCH 27, 2012 A CM (M) No. 1191/2009 Page 5 of 5