* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.133/2012
% 10th May, 2012
GUR MEHAR SWANNI ..... Appellant
Through: Mr. Vivek B. Saharya, Adv.
versus
VIRENDER KUMAR BHATNAGAR & ORS. ..... Respondents
Through: Mr. Pramod Gupta with Mr. Udit Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment of the Trial Court dated 5.4.2008 rejecting the plaint on account of non-compliance of the earlier order dated 10.9.2007, and which earlier order dated 10.9.2007 directed the plaintiff to pay proper Court fees on the plaint as per the causes of action and reliefs claimed in the plaint.
2. If we look at the amendment application as has been filed by the appellant/plaintiff after the passing of the order dated 10.9.2007, it is found that the application partly does not inspire confidence inasmuch as so RFA No.133/2012 Page 1 of 5 far as the relief of cancellation of documents is concerned, it is alleged that the fixed Court fees is payable though however when a document is sought to be cancelled, Court fees will be payable on the value of the document, to the extent the document is sought to be cancelled and in this case which would be the appellant's/plaintiff's share of `12,31,250/-. Therefore, the amendment application is not correct in averring that only a fixed Court fees is payable.
3. At this stage, counsel for the appellant/plaintiff states that the appellant/plaintiff agrees to pay Court fees on `12,31,250/- in addition to the Court fees already paid on that very value of Rs,12,31,250/- inasmuch as so far as the existing relief of cancellation of the sale deed for the value of the share of the appellant/plaintiff at Rs,12,31,250/- is concerned, Court fees has already been paid of `16449/-, and therefore, now Court fees of `16449 will be paid qua the relief of possession which is claimed. So far as the relief of pendente lite damages is concerned, Court fees will only be payable when the decree is passed and the amount of damages is assessed. So far as the relief of declaration is concerned, the same, in my opinion, may be redundant once the relief of cancellation of the documents qua the appellant's/plaintiff's share is sought and Court fees is already paid ad valorem on the appellant's/plaintiff's share of `12,31,250/-. RFA No.133/2012 Page 2 of 5
4. Accordingly, this appeal is disposed of with the following directions:
i) The appellant/plaintiff is granted opportunity to make payment of the Court fees on the amount of `12,31,250/-, and which will be the value for the purposes of additional relief of possession, i.e. in addition to the relief of cancellation of documents which is already valued at `12,31,250/- and on which Court fees of `16,499/- has already been paid. Additional Court fees of `16,499/- will be paid.
ii) The subject suit will be a suit seeking reliefs of cancellation of the documents and possession qua the share of the appellant/plaintiff, and which will naturally imply the pre condition of grant of partition because only thereafter, possession would be delivered, assuming that is the relief which can be granted in law.
iii) The further reliefs in the suit will be towards declaration valued at `200/- on which Court fees of `20/- has already been paid.
5. The observations made in the present manner are in no manner reflection on the merits of the case of either or the parties and issues of merits including the issue (if the same arises) of maintainability of the suit, will be decided by the competent Court in accordance with law. RFA No.133/2012 Page 3 of 5
6. Since it is the appellant/plaintiff who has caused this litigation, inasmuch as the appellant/plaintiff failed to comply with the earlier order of the Trial Court dated 10.9.2007 by not paying the Court fees, the appellant/plaintiff will be liable to pay costs of `20,000/- to the respondent no.1. Costs shall be paid within a period of 8 weeks from today.
7. The appeal is disposed of in terms of the aforesaid observations. Appellant/plaintiff in terms of the aforesaid observations agrees to file an amended plaint before the District and Sessions Judge, Delhi alongwith the additional Court fees on 23.7.2012, the date which is fixed before the District and Sessions Judge, Delhi.
8. Parties to appear before the District and Sessions Judge, Delhi on 23.7.12, and on which date, the District and Sessions Judge, Delhi will mark the suit to a competent Court for disposal in accordance with law.
9. At this stage, counsel for both the parties state that as a result of the plaint being amended to claim the reliefs of cancellation of documents and possession, the pecuniary jurisdiction value will total to at least `24,62,500/-, and since the Court of an ADJ will not have the pecuniary jurisdiction to try the suit, the pecuniary jurisdiction will be of this Court in exercise of its ordinary civil jurisdiction. Accordingly, the District and Sessions Judge, Delhi on the date fixed, will call for the records of the RFA No.133/2012 Page 4 of 5 complete suit, and will send the suit as a whole to the Original Side of this Court by fixing a date for appearance before the Registrar General (Original Side) of this Court. With the consent of the parties, I am exercising these powers under Section 24 CPC.
10. Appeal is disposed of in terms of the aforesaid observations.
VALMIKI J. MEHTA, J MAY 10, 2012 ak RFA No.133/2012 Page 5 of 5