Mahesh Kumar Monga vs Rishi Raj And Ors.
1996 Latest Caselaw 153 Del

JUDGMENT

Manmohan Sarin, J.

(1) This is an application under Order Xiv Rules 2 and 5 Cpc by defendant No. 5 for framing of additional issues. The case of the defendant is that when issues were framed on 4th September, 1995 the Counsel for defendant No. 5 was not present and the pleas taken by the defendant No. 1 were only considered. The pleas and objections taken by the applicant/defendant No. 5 were not considered,while framing of issues.

(2) The plaintiff and defendant No. 1 were served with the notice of IA. No reply was filed. Counsels desired instead to argue the matter.

(3) Learned Counsel for the defendant/applicant defendant No. 5 contends that apart from the issues already framed the following four additional issues be framed:-

1. Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction and this Hon'ble Court has no pecuniary jurisdiction to try and decide the present suit?

2. Whether the plaintiff has not paid the proper Court fees for separate reliefs as prayed for? Opp

3. Whether the suit has not been signed and verified by a competent person? Opp

4. Whether the suit is without any cause of action against the defendant No. 5 and is liable to be dismissed under Order Vii Rule 11 Civil Procedure Code against defendant No. 5? Opd Further that additional issues Nos. 1 and 2 to be framed be treated as preliminary issues

(4) The plaintiff in the suit has sought inter alia decree of specific performance in respect of agreement dated 24.3.1993, a decree of declaration confirming the sale of the property in question by defendant No. 1 as well as a decree of possession against the defendants thereby directing defendant No 5 to hand over possession of the property in suit and in the alternative damages for the sum of Rs. 5.10 lacs have been claimed.

(5) Learned Counsel for the defendant/applicant argued that the plaintiff was claiming two separate reliefs against the defendants i.e. for specific performance of agreement to sell dated 24.3.1993 against defendants and for possession of property against the answering defendant but has not paid the value for Court fee separately Counsel for the defendant further argued that the plaintiff has to pay separate Court fee for relief of specific performance and the alternative relief of damages sought. In my view it is permissible to claim the alternative relief of damages in a suit for specific performance and the Court fee is liable to be paid only on the higher amount for which the relief has been valued in the suit. In a suit praying decree for specific performance the relief of possession is also sought. No additional Court fee is liable to be paid. However, in the present case the situation is on a different footing. The plaintiff does not have any privity of contract with defendant No. 5 so as to claim specific performance of contract against it, but is claiming a decree of possession since he claims to have been illegally dispossessed by defendant No. 5. Accordingly the question of suit being properly and separately valued for relief of possession against the defendant No. 5 would arise for consideration. In view of the foregoing discussion, the following additional issues which arise from the pleadings are framed:-

1. Whether the suit has been signed and verified by a competent person? Opp

2. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction, inasmuch as the plaintiff has not paid separate Court fee for the relief of possession sought against defendant No. 5 as set out in para 3 of written statement of defendant No. 5? Opd

3. Whether the suit is without any cause of action against defendant No. 5 and is liable to be dismissed under Order Vii Rule 11 Civil Procedure Code against defendant No. 5? Ofd The Ia is partly allowed and issues Nos. 2 and 3 are treated as preliminary issues.