Chattisgarh High Court

Samar Singh Bisen vs Chhattisgarh Kiraya Bhandar on 3 January, 2023

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                                                                 AFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                      WP227 No. 106 of 2020

    Samar Singh Bisen S/o Late Shri R.S. Bisen Aged About 50 Years
     Resident To House No. A-4, Ravi Nagar, Raipur, Chhattisgarh

                                                       ---- Petitioner

                              Versus

   1. Chhattisgarh Kiraya Bhandar Through its Sole Proprietor
       Shashank Yadu, Son Of Late Shri Prabhat Yadu, Aged About 31
       Years, C/o CG Kiraya Bahadar, Marine Bhadar, Marine Drive,
       Telibandha, Raipur, Chhattisgahr

   2. Krishna Computer Through Its Owner Harish Verma, Aged About
       50 Years, Shop No. 2, Babuji Complex, In-Front Of Marine Drive,
       Beside Gurudwara, Telibandha, Raipur, Chhattisgarh

   3. Ambience, Dealer Of Phillips Company Through Its Owner
      Harpal Joshi, Through Its Manager Atulesh Gupta, Shop No. 3,
      Babuji Complex, In-Front Of Marine Drive, Beside Gurudwara,
      Telibandha, Raipur, Chhattisgarh

   4. Madrasi Hotel Through Its Owner Mohammad Shafiq Ahmed,
      Basement And First Floor, Babuji Complex, In-Front Of Marine
      Drive, Beside Gurudwara, Telibandha, Raipur, Chhattisgarh

                                                     ---- Respondent

For Petitioner Mr. K. Rohan and Mr. Abhyuday Singh, Advocates For Respondent No.1 Mr. Kshitij Sharma, Advocate For Respondent No.3 Mr. Ankur Agarwal, Advocate For Respondent No.4 Mr. Shobhit Mishra, Advocate

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board

3/1/2023

1. Learned counsel for the parties would submit that respondent

No.2/defendant No.2 was ex-parte before the Court below,

which is also reflected from the order sheet dated 27.11.2019

in Civil Suit No.294 A/2018. The notice issued by this Court to

respondent No.2 is also returned unserved with a note that

respondent No.2 is not living in the said address.

2. Learned counsel for the parties would submit that at present,

the main contesting party is defendant No.1, who has moved an

application under Order 7 Rule 11 of CPC.

3. In view of the above, notice to respondent No.2 is dispensed

with.

4. With the consent of the learned counsel for the parties, the

matter is heard finally.

5. Being aggrieved with the order dated 5.12.2019 passed by the

Seventh Additional Judge to First Civil Judge Class-II, Raipur in

Civil Suit No.294A/18, whereby, the application preferred by

defendant No.1/respondent No.1 under Order 7 Rule 11 read

with Section 151 of CPC on the grounds that the suit was not

properly valued and also there is deficiency in the Court Fees,

was allowed and the petitioner/plaintiff was directed to pay the

Court Fees on the basis of the market value of the suit property

as per Section 7(v) of the Court Fees Act, 1870 (in short "the

Act, 1870").

6. Brief facts of the case are that the petitioner/plaintiff has

preferred a civil suit seeking relief(s) of possession, permanent

injunction and declaration asserting that he has acquired the

title over the suit property by way of lease deed executed by

the owner of the property on 10.1.2007 for a period of 29 years

and he holds a title as a tenant over the suit property and

enjoying his limited rights. He further asserted that the

defendants/respondents 1 to 4 entered into forceful possession

over the suit property, therefore, the suit was filed for eviction

of the defendants. In the said suit, defendant No.1 preferred an

application under Order 7 Rule 11 read with Section 151 of CPC

on the ground that the proper court fees has not been paid by

the plaintiff, which has been allowed. Hence, this petition.

7. Mr. K. Rohan, learned counsel for the petitioner/plaintiff would

submit that the plaintiff/petitioner has a limited right as a

tenant and there is a specific provision under Section 7(xi) of the

Act, 1870, which stipulates a special status for the tenant to

enforce his right without any undue financial burden. He

submits that in reply of the application, the plaintiff has

categorically stated that he is ready to pay the court fees

according to the valuation under Section 7(xi) of the Act, 1870

However, the trial Court has committed a serious error and

directed for payment of court fees under Section 7(v) of the Act,

1870. He would further submit that in such a situation, if there

is a dispute between the landlord and the tenant, it would be

very easy for the landlord to evict the tenant by resorting to

illegal means of inducing third party over the suit property and

thereby, the tenant would succumb to the heavy court fees. He

submits that considering the limited rights of the tenant, the

relief can be claimed by paying the court fees under Section

7(xi) of the Act, 1870. He would place reliance on the judgment

rendered in the matter of Janab E.M. Ghulam Dastagir Saheb

Vs. Marudai Pillai and another, C.R.P. No.1462 of 1947 and

submit that the said judgment was also relied by the Nagpur

High Court in the matter of Pralhad Narayan Vs. Smt.

Mankuarbai, 1952 SCC OnLine MP 22. Hence, he would pray to

set-aside the impugned order and allow the petitioner/plaintiff

to deposit the Court Fees under Section 7(xi) of the Act, 1870.

8. Per contra, Mr. Kshitij Sharma, learned counsel for respondent

No.1 would submit that while deciding the application under

Section 7 Rule 11 of CPC, only the plaint averments have to be

seen and the plaintiff has categorically stated in the plaint that

the defendants are the trespassers and sought the relief of

possession. He submits that in view of the above, the trial Court

has rightly come to the conclusion that to obtain a declaratory

decree or order, where consequential relief is prayed and the

subject-matter is a house or garden, the valuation has to be

done according to the market value of the house or garden as

per Section 7(iv)(c) read with Section 7(v)(e) of the Act, 1870.

He submits that as per the averments made in the plaint, the

case does not attract the provisions contained under Section

7(xi) of Act, 1870. He places reliance on the judgment rendered

in the matter of Suhrid Singh alias Sardool Singh Vs. Randhir

Singh and others, (2010) 12 SCC 112 and prays to dismiss the

petition.

9. Mr. Ankur Agarwal, learned counsel for respondent No.3 and Mr.

Shobhit Mishra, learned counsel for respondent 4 would adopt

the submissions of Mr. Kshitij Sharma, learned counsel for

respondent No.1, and would also support the impugned order

and pray for dismissal of the petition.

10. Heard learned counsel for the parties and also perused the

documents annexed along with the petition.

11. In Suhrid Singh (supra), the following was observed vide para 6

&8:

6. The second proviso to Section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under sub-clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under sub-clause (e) thereof.

8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.

12. Revering back to the facts of the present case, in light of the

aforesaid legal proposition propounded by Hon'ble the

Supreme Court, it is quite vivid that the trial Court has rightly

come to the conclusion that the valuation has to be done

according to the market value of the house.

13. The first case law (Janab E.M. Ghulam Dastagir Saheb) relied

by learned counsel for the petitioner, is distinguishable facts as

learned counsel for respondent No.1 has rightly pointed out

that in the said matter, when the first defendant objected about

the market value, the plaintiff has amended the suit accordingly

and in such circumstances, the suit was covered under Section

7(xi) of the Act, 1870, but in the present case, no such pleading