Jagdish Bhai Patel vs Raunak Patel
2025 Latest Caselaw 1331 Chatt

Chattisgarh High Court

Jagdish Bhai Patel vs Raunak Patel on 21 January, 2025

Bench: Rajani Dubey, Narendra Kumar Vyas

Digitally signed
by AMIT PATEL
Date:
2025.01.24
15:47:31
                                                         1
+0530




                                                                             2025:CGHC:3597-DB

                                                                                       NAFR

                               HIGH COURT OF CHHATTISGARH AT BILASPUR

                                                 FA No. 98 of 2023
                   Jagdish Bhai Patel S/o Shri Jashbhai Patel Aged About 55 Years R/o Ward
                   No. 9, Nagar Panchayat Chhuriya, Tahsil Chhuriya, District : Rajnandgaon,
                   Chhattisgarh
                                                                     ---- Appellant/Plaintiff
                                                      versus


                   1 - Raunak Patel S/o Jagdish Bhai Patel Aged About 30 Years R/o Ward No.
                   9, Nagar Panchayat Chhuriya, Tahsil - Chhuriya, District Rajnandgoan
                   Chhattisgarh. Present Address- Ashok M. Patel, 22 Indrapuri Society, Anand
                   (Gujarat) 388001.
                   2 - Smt. Rukhsana Qureshi W/o Shri Rajjak Qureshi Aged About 47 Years
                   R/o Ward No. 9, Nagar Panchayat Chhuriya, Tahsil - Chhuriya, District
                   Rajnandgoan Chhattisgarh.
                   3 - The Manager, Aadhar Finance, Rajnandgaon, Branch Office - Near Fursat
                   Ke Pal, Anupam Nagar, Thana Basantpur, Tahsil And, District : Rajnandgaon,
                   Chhattisgarh
                   4 - Rajjak Khan S/o Late Nazir Ahmede Qureshi Aged About 50 Years R/o
                   Ward No. 9, Nagar Panchayat Chhuriya, Tahsil - Chhuriya, District
                   Rajnandgoan Chhattisgarh.
                   5 - State Of Chhattisgarh Through Collector, District : Rajnandgaon,
                   Chhattisgarh
                                                                ---- Respondents/Defendants
                                       (Cause title taken from CIS System)
           For Appellant                   : Mr. Ravi Kumar Bodhani, Advocate appears through
                                             Video conferencing.
           For Respondents No. 1 & : Mr. Shikhar Bakhtiyar, Advocate.
           2
           For Respondent No. 3      Mr. Mitesh Jain, Advocate.
                                              2

For State                    Mr. Devesh G. Kela, PL
                        Hon'ble Smt Justice Rajani Dubey J. &
                    Hon'ble Shri Justice Narendra Kumar Vyas, J.

Judgment on Board

Per, Rajani Dubey, Judge

21.01.2025

1. Heard learned counsel for the appellant.

2. This appeal is filed against the order dated 11.05.2023 (Annexure P/1), passed by learned Third Additional District Judge, Rajnandgaon, District- Rajnandgaon (C.G.) passed in Civil Suit No. A/16/2021 (Jagdish Bhai Patel Vs. Raunak Patel & Others), whereby the learned Trial Court has rejected the Civil suit filed by plaintiff/appellant on the ground of non-payment of proper Court fees.

3. The facts of the case, as projected in the present appeal, in brief are that appellant/plaintiff has filed a civil suit against the respondents/ defendants for declaration and permanent injunction, also want declaration that registered gift deed dated 11.03.2016 and sale deed dated 08.09.2016 are not binding upon the appellant/plaintiff and therefore, null and void. Before learned Trial Court, defendant No. 3/respondent No. 3 had filed an application under Order 7 Rule 11 of the CPC on 22.11.2021 and learned Trial Court decided this application on 18.01.2023 and partly allowed the application with a direction to the appellant/plaintiff to pay the ad-valorem Court fees in accordance with the value of the impugned registered gift deed dated 11.03.2016 within a period of one month, failing which, plaint shall be rejected. Against this order, plaintiff/appellant had filed petition (WP227 No. 255/2023) before this Hon'ble Court and the said petition was dismissed by this Court on 28.03.2023 and the order passed by learned Trial Court is affirmed. On 27.04.2023, plaintiff had again filed an application under Section 35 of Court Fees Act, 1870 read with Section 151 of CPC and by impugned order dated 11.05.2023 (Annexure P/1), dismissed the application of the appellant/plaintiff and also dismissed the suit of

plaintiff on the ground of Order 7 Rule 11 (b) of CPC. Hence, this appeal filed by the appellant/plaintiff.

4. Learned counsel for the appellant/plaintiff submits that impugned order passed by learned Trial Court is perverse and contrary to the facts of the case and the learned Trial Court has committed a grave error of law in passing the order rejecting the entire suit of the appellant along with the application for this reason, it would be justified to interfere with the order passed by learned Trial Court. He further submits that when learned Trial Court dismissed the said application filed by the appellant/plaintiff, no proper opportunity of paying proper Court fees was afforded by learned Trial Court to the appellant/plaintiff. Learned Trial Court has failed to appreciate the provisions of law under Order 7 Rule 11 (b) of CPC and on the same day, dismissed the application of the appellant/plaintiff and also dismissed the suit. So, the impugned order dated 11.05.2023 (Annexure P/1) passed by learned Trial Court is illegal, contrary to the law and also against the facts of the case.

5. Learned counsel for the respondents supported the impugned order and submits that the learned Trial court has provided an ample opportunity of paying the Court fees to the appellant/plaintiff, but the appellant could not pay proper Court fees. Thus, learned Trial Court rightly dismissed the application and the suit of the appellant/plaintiff and this appeal is without any merit and is liable to be dismissed.

6. We have heard learned counsel for the parties and perused the material available on record including the impugned order.

7. It is vivid from record of learned Trial Court that learned Trial Court vide order dated 18.01.2023 partly allowed the application filed by defendant No. 3/respondent No. 3 under Order 7 Rule 11 and directed the appellant/plaintiff to pay Court fees within one month, failing which, his plaint shall be rejected. Against this order, the appellant/plaintiff had filed petition (WP227/255/2023) before this High Court and vide order dated 28.03.2023, the same has been rejected by affirming the order of learned Trial Court. It is clear from order-sheets of learned Trial Court

that on 26.04.2023, the case was adjourned for another date and stay was granted on the ground that writ petition is pending before this Hon'ble Court. On 27.04.2023, appellant/plaintiff had filed an application under Section 35 of Court Fees Act, 1870 read with Section 151 of CPC, 1908. On 08.05.2023, defendants' counsel sought adjournment to file reply of the said application filed by the appellant/plaintiff. On 09.05.2023, learned Trial Court heard arguments of both the parties and case was fixed for order on 11.05.2023 and vide impugned order dated 11.05.2023, learned Trial Court had dismissed the application filed by the appellant/plaintiff under Section 35 of Court Fees Act, 1870 and also dismissed the plaint filed under Order 7 Rule 11 (b) of CPC.

8. As per provision of Order 7, Rule 11 (b) of code of Civil Procedure, 1908, it is produced herein for ready reference as under:-

11. Rejection of plaint

The plaint shall be rejected in the following cases-

(a)xxxxxx

(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;

9. It is quite evident from all order-sheets that on previous dates of hearings, learned Trial Court had never directed to pay the Court fees and after passing previous order dated 18.01.2023 passed by learned Trial Court, the appellant/ plaintiff filed petition against the said order and stay was granted in favour of the appellant/plaintiff and when petition was dismissed by this Court vide order dated 28.03.2023. Appellant/plaintiff again filed an application on 27.04.2023 under Section 35 of Court Fees Act, 1870 read with Section 151 of IPC and the matter was fixed for reply and argument for the said application. By impugned order dated 11.05.2023, learned Trial not only dismissed the application of the appellant/plaintiff, but also dismissed the suit under Order 7 Rule 11 (b) of CPC and it is clear that before passing this

order, learned Trial Court did not direct to the appellant/plaintiff to pay Court fees as per Order 7 Rule 11 (b) of CPC, if he has failed to pay Court fees within a stipulated time as fixed by learned Trial Court, his plaint shall be rejected. So, impugned order dated 11.05.2023 passed by learned Trial Court is not sustainable in the eye of law.

10. Looking to the provision of Order 7 Rule 11 (b) of Code of Civil Procedure, 1908, this appeal is allowed and impugned order dated 11.05.2023 is hereby set aside and it is directed to learned Trial Court to fix the case for payment of Court fees and if the appellant/plaintiff fails to pay the Court fees, then his plaint shall be rejected.

11.The parties are directed to appear before learned Trial Court on 03.02.2025 and on that day, learned Trial Court shall give fixed date to the appellant/plaintiff for payment of Court fees.

12. With the aforesaid direction, the instant appeal is allowed.

                      Sd/-                                                 Sd/-

                 (Rajani Dubey)                                 (Narendra Kumar Vyas)

                     JUDGE                                               JUDGE

AMIT PATEL