JUDGMENT
Swatanter Kumar, J.
1. The plaintiff has filed a suit for partition of properties and rendition of accounts as stated in paragraph 5 of the plaint against the defendants. It is the case of the plaintiff that she is the daughter of Shri Ram Kishan Garg (deceased), while defendant No. 1 is the son, defendant No. 2 is the widow and defendant No. 3 is the daughter of the deceased. He died intestate on18.9.1988 at Delhi leaving behind the movable and immovable properties as stated in paragraph 5 of the plaint. It is the case of the plaintiff that she is entitled to one-fourth share in all the properties and thus, is also entitled to that share in the income from the said properties for all the years as the defendants have to come forward and divide the properties equally among all the heirs of the deceased father of the plaintiff. She had even written letters to them on 06.01.2005 and 18.01.2005 but of no consequence. The conduct of the defendants compelled her to file the present suit for partition and rendition of accounts.
2. The suit was contested by the defendants. They have filed different written statements. In the written statements, they have raised various preliminary objections as to the maintainability of the suit, including that the suit is barred under the provisions of Order 2 Rule 1 of the Civil Procedure Code; that the suit is liable to be rejected under Order 7 Rule 11 of the CPC for non-payment of proper court fee; that the plaintiff has no locus standi to file the suit for partition and that the suit is already barred under Section 23 of the Hindu Marriage Act.
3. On merits, it is stated that some of the properties, as mentioned in paragraph 5 were even purchased after the death of the deceased and that they cannot be, in any case, the subject matter of a suit for partition before this court. It is also the case of the defendants that late Shri Ram Kishan had expressed his desire to give a flat at Azad Apartments to the plaintiff after the entire estate being bequeathed in favor of defendant No. 2. However, as the said flat was rented out and could not be got vacated, property No. 17, Empire Estate, Town Hall, Mehrauli, New Delhi was purchased by defendant No. 2 for the plaintiff.
4. On 28th October, 2005, the court passed the following order:
I have heard the counsel for the parties. On the pleadings of the parties, following issues arise and are framed:
(i) Whether the deceased Sh. Ram Krishan Garg had not executed the will dated 07.09.1888, of which a valid and proper probate was granted in probate case No. 23/89? If so, what is its effect? - OPP
(ii) Whether the present suit of the plaintiff is barred by the principles of res judicata or constructive res judicata in view of the judgment in probate case No. 23/89? - OPD
(iii) Whether the plaintiff has not paid the proper court fee, as alleged in the preliminary objections by defendant No. 2 in his written statement? - OPD
(iv) Whether the suit of the plaintiff is barred by the Law of Limitation? - OPP
(v) Whether the plaintiff is entitled to claim partition of the properties as mentioned in para 5 and schedule A of the plaint? If so, to what effect, in which of the properties and in what share? - OPP
(vi) Whether the jurisdiction of this Court is barred with respect to the lands governed by Delhi Land Reforms Act? - OPD
(vii)Whether the plaintiff is in joint possession of the properties mentioned in paragraph 5 and Schedule A of the plaint? If so, to what effect? - OPP
(viii) Whether the assets and goodwill of M/s. R. K. Associates belonged exclusively to Shri Ram Kishan Garg? - OPP
(ix) Whether the plaintiff can lay any claim to the properties, partition of which is claimed on the strength of the will dated 07.09.1988? - OPP
(x) Whether the plaintiff is entitled to rendition of accounts from defendant Nos. 1 and 2? - OPP
(xi) Relief
No other issue arises or is framed.
Parties to file their list of witnesses within two weeks from today. List the case before the Joint Registrar on 08.12.2005.
Interim orders to continue.
IA Nos. 6810/05, 5166/05 & 5167/05 in CS(OS) No. 937/2005
IA Nos. 6810/05, 5166/05 & 5167/05 shall be listed for hearing before this Court on 23.11.2005, on which date it will also be examined whether issue No. 3 can be treated as preliminary issue and heard at that time.
5. The contentions raised on behalf of the defendants is that taking the averments made in the plaint to be correct, the Plaintiff has not valued the suit properly for the purposes of Court fee and jurisdiction and has not paid the required ad valorem court fee in accordance with law. Therefore, it is submitted that plaint of the plaintiff is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure and the suit is liable to be dismissed. In this regard the learned counsel has relied upon various judgments of this Court in the cases of Sudershan Kumar Seth v. Pawan Kumar Seth , Eastman Kodak Company v. M.R. Electronics and Ors. 56 (1994) Delhi Law Times 79, Jagdish Rai and others v. Smt. Sant Kaur , Prakash Wati v. Dayawanti and Ors. , Harjit Kaur and Ors. v. Jagdeep Singh Rikhy 2004 VII AD (Delhi) 567 and Sudhir Joshi (Shri) and Ors. v. Smt. Shanta Joshi and Ors. 2004 VI AD (Delhi) 131.
6. Referring to the afore-stated judgments and paragraphs 3,8,9,12,13 and 31 of the plaint, it is contended by the counsel for the defendants that the plaintiff has incorrectly valued the suit for the purposes of rendition of accounts, for the purposes of jurisdiction at Rs. 10 crores and Court fee at Rs.20/- and that the said payment of a fixed court fee is contrary to law. It is further contended that even on the relief of partition, the suit has been incorrectly valued for the purposes of court fee and jurisdiction in as much as the plaintiff is not in possession of any property or part thereof, either physically or even symbolically and has no control over any of the properties, which are subject matter of the present suit. The plaintiff, having valued the suit for that relief at Rs.10 crores, could not pay a fixed court fee of Rs. 20/- under Article 17 of Schedule II of the Court Fee Act, but is required to pay the ad valorem court fee on the said amount.
7. On the other hand, the learned counsel appearing for the plaintiff while relying upon the judgments in the cases of Aloysia Muttunayagam and another v. Margaret Brito AIR 1918 Privy Council 277 and Hardit Singh and Others v. Gurmukh Singh and others AIR 1918 Privy Council 1 contended that correct court fee has been affixed by the plaintiff on both the reliefs claimed and the plaintiff is not required to pay the ad valorem court fee, as contemplated under Article 17 of the Schedule II of the Court Fee Act. He also stated that the plaintiff was only required to pay a fixed court fee and the same has been paid on the reliefs claimed, with a specific undertaking that upon determination of the amount the plaintiff would pay the court fee required, in accordance with law. It is further stated that the defendants are controlling the entire properties in a fiduciary capacity under the right of management to which the plaintiff had agreed. It is also contended that being the owners in law of the property, each owner would be in possession of every inch of the property, which is jointly owned by the parties. The mere fact that there is an exclusive possession of joint estate, would not amount to exclusion of other interested members of the family, as such, appropriate court fee has been affixed.
8. In order to examine the merits of the respective contentions raised in relation to this preliminary objection relating to court fee, the plaint, as filed in this Court will have to be taken as correct. The averments made in the plaint constituting a cause of action, paragraphs relating to the pecuniary jurisdiction and the value stated by the plaintiff for the purposes of court fee and jurisdiction are the relevant paragraphs which the Court would have to look into for determining this issue. Reference can be made to the following paragraphs of the plaint:-
3. That Shri Ram Kishan Garg died intestate on 18.9.1988 at Delhi and was survived by the following legal heirs:
i. Plaintiff (Daughter)
ii. Defendant no.1 (son)
iii. Defendant no.2 (Wife)
iv. Defendant no.3 (Daughter)
8. That the plaintiff was minor at the time of death of her father and she was married in the month of February 1992. Defendant no.3 was also minor at the time of death of her father. She was married in 1999.
9. That as the plaintiff and defendant No.3 got married all the aforesaid properties remained under the management of defendants No.1 and 2 after the death of the father of the plaintiff.
12. That being the daughter of the deceased and the fact that the properties were being managed by the plaintiff's mother and her brother, plaintiff trusted them and did not interfere with the management of the aforesaid properties or the recovery of the income there from by them as the plaintiff chershed the hope that defendants No. 1 and 2 on their own would come forward and divide all the properties equally among all the heirs of the deceased father of the plaintiff.
13. That out of respect and because of old tradition of Hindu family the plaintiff as the daughter left the management of all the properties in the hands of defendants No.1 and 2 in the belief that defendants No.1 and 2 on their own would give the share of the plaintiff by partition of the properties. The plaintiff did not wish to disturb here filial relations with her mother or with her brother by assailing her right to separate possession of here 1/4th share in the aforesaid properties as well as her right to share in the income/mesne profits of the properties.
31. That the suit has been valued for the purposes of court fee and jurisdiction as under:
a. RELIEF OF PARTITION
The suit has been valued for the purpose of jurisdiction at Rs. 100.00 crores on which a fixed court fee of Rs.20/- under Article 17 of Schedule II of the Court Fee Act has been affixed.
b. RELIEF OF RENDITION OF ACCOUNTS
The suit for the purpose of jurisdiction is valued at Rs. 10.00 crores which the plaintiff estimates as required under Order VII Rule 2 is likely to be found due to her.
For the purpose of Court fee it is valued at Rs.200/- on which a court fee of Rs.20 has been affixed as the plaintiff is not in a position to ascertain the exact amount of rental income, profits, sale proceeds which have been earned by defendants No.1 and 2 nor is there any objective material on the basis of which the same can be estimated by the plaintiff. The plaintiff submits that the plaintiff shall pay the additional court fee on the amount which will be found due to her on rendition of accounts and a decree is passed in her favor to recover the said amount from defendants No. 1 and 2.
33. That the value of the suit is more than Rs.100 crores. Therefore this Hon'ble Court has pecuniary jurisdiction to entertain the suit."
9. A bare reading of the above paragraphs indicate that the plaintiff was not in physical possession of any of the properties and in fact, had been deprived of any role in the management of the said properties, which could give some control or a kind of joint possession, even symbolically, to the plaintiff. The only relevant paragraph wherein the plaintiff has claimed that they are in joint possession of all the properties, movable and immovable, mentioned in Schedule 8 of the plaint, is paragraph 25 which reads as under:-
25. That the plaintiff submits that the plaintiff is in joint possession of all the properties movable and immovable mentioned in Schedule 'A' annexed to the plaint.
10. Paragraph 25 apparently is in obvious variation to what has been stated in other paragraphs. The plaint has to be read as a whole. One vague averment, which in fact, destroys the specific paragraphs and stand taken by the plaintiff in other paragraphs and even the letters which were written prior to the institution of the suit, and are referred to in paragraphs 15 and 17, show that the plaintiff had been deprived of all the advantages of the left out property. Specific reference about the deprivation of all advantages and no steps being taken for a long time, was made by the plaintiff. If a plaintiff is not in actual physical possession of the property or is not even involved in joint management of the properties, it obviously would not satisfy the ingredients of a joint possession.
11. Once there is complete ouster even of a joint owner from possessory management and any other direct involvement in the affairs of the properties in question, it would be necessary for that person to pay the requisite ad valorem court fee and he would not be in a position to take advantage of paying a fixed court fee. In somewhat similar circumstances, in the case of Sudershan Kumar Seth (supra) the Court held as under:-
It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the Court fees shall be payable under Article 17(6) of Schedule II of the Court fees Act i.e. fixed Court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under Section 7(iv)(d) of the Court fees act i.e. on the value of plaintiff's share. 1977 Rajdhani Law Reporter 54, Jamila Khatoon v. Saidul Nisa (supra), Smt. Prakash Wati v. Smt. Dayawanti (supra), Ms. Ranjana Arora v. Satish Kumar Arora (supra); Harjit Kaur v. Jagdeep Singh (supra); Rajiv Oberoi and Ors. v. Santosh Kumar Oberoi and Ors. can be referred to.
The plaintiff in the plaint has categorically stated in paragraph 11 that the defendant No.1 does not allow plaintiff access to the records relating to the business and other movable assets as well as immovable properties. In the same paragraph it has been alleged that he has 1/6th share in cash, jewellery and movable and immovable properties left behind by late Sh. O.P. Seth, which are at present in the power, custody and possession of defendant No.1 as custodian and agent on behalf of the plaintiff and defendant Nos. 2 to 5. In paragraph 14 of the plaint the plaintiff contends that he has legal right to possession, occupy and take custody of any of the assets of late Sh. O.P.Seth presently in the power and possession and in custody of defendant no.1. The plaintiff has also sought partition of the porperties by meets and bounds and consequently on the reading of entire plaint, inevitable inference that the plaintiff is not in possession of any movable and immovable properties of late Sh. O.P. Seth and he is claiming possession being a co-sharer.
12. In the case of Prakash Wati v. Dayawanti and Ors. (supra), keeping in view the reliefs claimed in the plaint and the fact that the plaintiff was not in possession of the properties, the Court directed payment of ad valorem court fee while holding as under:-
Counsel for the plaintiff has made reference to Jagdish Pershad v. Joti Pershad 1975 Rajdhani Law Reporter 203, wherein it has been laid down that keeping in view the peculiar facts of the case that where the plaintiff claims to be in joint possession of the property of which partition is sought, the plaintiff is to pay only fixed court fee as per Article 17 (vi) in Schedule II. There is no dispute about this proposition of law. Counsel for the plaintiff has then placed reliance on Neelavathi and Ors. v. N. Natarajan and Ors. , wherein the Supreme Court has laid down that it is settled law that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. It was held that the general principle of law is that in the case of co-owners the possession of one is in law the possession of all unless ouster or exclusion is proved. I think these observations of the Supreme Court go against the case of the plaintiff because in the present case reading of the whole of the plaint makes it clear that the plaintiff is alleging ouster from possession and thus, the plaintiff has to pay ad valorem court fee on the value of her share. I order accordingly. The deficiency in the court fee be made up within ten days and the suit be listed for further proceedings on August 21, 1990, in 'Short Matters'.
Order accordingly.
13. A similar view was taken by the Court in the case of Harjit Kaur v. Jagdeep Singh (supra), where the court held as under:-
In view of the pleadings, I am satisfied that the Plaintiffs are neither in actual nor constructive possession of the property in suit. It cannot also be overlooked that the patriarch of the family who is the recorded titular owner thereof died in 1974 but the present suit has been filed as late as in 2001, i.e. a quarter of century later. It also appears that probate proceedings are pending since 1982 in which Defendant No.1 has set up exclusive claims thereto, based on the alleged Will of his Grandfather late Niranjan Dass Rikhy. Even this event has not galvanized the Plaintiff to file a suit forthwith. I am not presently concerned with the question of limitation but the conduct of the parties would be relevant in so far as ouster of possession and/or failure to be in joint possession of the suit property is concerned.
14. The condition precedent to availing the benefit of payment of fixed court fee is possession-actual, symbolic, and/or role in management of the property in question. Unless these ingredients have been clearly stated in the plaint and the Court is prima facie satisfied, the plaintiff would not be able to claim benefit of the payment of fixed court fee. The reading of the plaint and particularly the reliefs claimed by the plaintiff clearly shows that the plaintiff is not entitled to these advantages and is liable to pay ad valorem court fee in view of the judgments afore-referred. Common intention of management has to be inferred from the facts averred in the plaint and it obviously cannot be a presumption of law, but would ever be a factual matrix of the case to be pleaded and proved in accordance with law by, the parties.
15. Learned counsel appearing for the plaintiff while relying upon the concept of fiduciary relationship contended that the plaintiff had required the defendants to manage the property and the entire management was being held by the defendants in fiduciary capacity and as such equity imposed a duty upon the persons, in whom confidence was reposed by the plaintiff. It is also the contention that it was an entrustment by the plaintiff to the defendants to perform the job of management of the properties, as a joint venture. That being so, the joint possession has to be necessarily inferred. For this, he relied upon "Equity, Doctrines and Remedies, Second Edition, by R.P. Meagher, QC; W. M. C. Gummow and J. R. F. Lehane (published by BUTTERWORTHS).
16. This argument of the plaintiff is without any basis. Firstly, in the entire plaint, it is nowhere noticed that the plaintiff had required the defendants to manage the properties. Secondly, there was never an exhibited right of the plaintiff in the properties in question. Lack of specific pleadings would take the case of the plaintiff outside the ambit of the above principles. Fiduciary relationship again is a matter of fact and has to be established by specific pleadings. The reliance placed by the learned counsel for the plaintiff on the judgment of Privy Council in the case of Aloysia Muttunoyagam and another v. Margaret Brito (supra) is again of no consequence, as in that case the Court was concerned with the concept of adverse possession and it was held that between the co-owners, where a spouse inherits half the property, the co-owner cannot claim adverse possession against the other co-owner. That is not the issue in the present case. At this stage, the Court is not concerned with the exclusion of the rights of the plaintiff. The Court has to examine the plaint of the plaintiff as filed in the Court. If the averments made therein do not satisfy the above ingredients, then the plaintiff would be called upon to pay ad valorem requisite court fee. The plaintiff herself has chosen to value the suit for the purposes of relief of partition at Rs.100 crores and has also valued the suit for the purposes of jurisdiction at the same value, however, has opted to pay fixed court fee in terms of Article 17, Schedule II of the Court Fees Act.
17. Determination of value of suit for the purposes of court fee and jurisdiction is a kind of discretion to be exercised by the plaintiff on some rationale and proper basis. Besides that, it must fall in one of the prescribed heads of payment of ad valorem court fee and apparent arbitrariness and violation, with the intention of forum shopping or without complying with the requirements of law, in regard to payment of ad valorem court fee and invoking the jurisdiction of the court would not be permissible. Dealing with one such contention, the Court in the case of CS(OS) No. 689/2004 titled as Bharat Sanchar Nigam Ltd. v. All India Bharat Sanchar Nigam Executives Association (Regd.) and Ors. decided on 12th January, 2006 held as under:-
8. The law enunciated by the courts in the above judgments can hardly be a matter of legal controversy. What has to be seen is that in the light of the well-enunciated principles of law whether the plaintiff has correctly valued the suit for the purposes of court fee and jurisdiction? Fixation of value of suit is in the discretion of the plaintiff but once he exercises such discretion on bonafide belief, he is obliged to pay the court fee in accordance with the provisions of the Court Fees Act, 1870 and Schedule attached thereto. At this stage, it will be appropriate to refer to a recent judgment of this court in the case of Fox Software Tech. Ltd. v. Siltap Chemicals Ltd. {IA No. 2581/2004 in CS(OS) 1747/2003} decided on 25th August, 2005, on this issue wherein the judgments of the Supreme Court and the High Courts including Full Bench judgment of this court and the judgment of the Punjab and Haryana High Court relating to the same issue, were discussed at great length:-
According to the defendant, the plaintiff was thus aware of the definite amount due from the defendant to the plaintiff which have been specifically referred to by the plaintiff in the aforereferred paragraphs and as such the plaintiff ought to have paid the court fee on the sums which were definitely falls due as claimed by the plaintiff at the time of institution of the suit. The plaintiff could not have valued the suit whimsically and arbitrarily to avoid the payment of advalorem court fee in accordance with the provisions of law. For this purpose, he relied upon the judgments of the Supreme Court in Commercial Aviation and Travel Co.v. Ms.Vimla Pannalal and A.KA.CT. V.CT Meenakshisundaram Chettiar v. A.KA.CT V.CT.Venkatachalam Chattiar , while learned counsel for plaintiff contended that the suit had been correctly valued for the purposes of court fee and jurisdiction as the amount claimed by the plaintiff would be dependent upon the true and correct rendition of accounts and upon determination of such amount, the plaintiff would estimate the court fee amount and as such the plaint cannot be rejected and the plaintiff cannot suffer on the sum mentioned in the plaint which is a mere reference and he relied upon the judgment of the Division Bench of this Court in the case of Commercial Aviation T.Co. v. H.L. Malhotra 1986 RLR 362. Section 7(i)(iv)(f) of the Court Fees Act provides for suits relating to amounts. It provides that the amount if payable under this act in such case would have to be according to the amount at which the relief sought is to be valued in the plaint by the plaintiff. It is the obligation of the plaintiff to state the amount at which he values the relief sought. Article 17 of Schedule II of the Act under Clause (i)(iv) states that every other suit where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided by this Act, the Court fee payable would be Rs.10/-.
The effect of both these provisions is that plaintiff has to show that it is not possible to ascertain the amount at the time of institution of the suit and then value the suit in terms of these provisions and pay the requisite court fee if not known at least of Rs.10/-. The real question that arises for consideration is whether the discretion given to the plaintiff is based on a definite criteria and it was not possible to ascertain the exact amount due to the plaintiff and recoverable at the time of institution of the suit. The estimation of the sum due would obviously dependent upon lack of exact determination. The plaintiff would be required to say in unambiguous language the ingredients of the above provisions as well as furnish an undertaking to the Court that on determination of the amount, the plaintiff would pay the requisite Court fee. The legislature commends nothing vainly and a good interpretation should be preferred over the bad interpretation, which would result in not further frustrating the cause of justice. A plaintiff must give definite reasons why the relief claimed by him is not capable of being computed in terms of exact money and should also support his estimation by some prudent principles to determine the valuation even for the purposes of jurisdiction. In the absence of such basic requirements, the exercise of such discretion by the plaintiff would normally will have to be termed as arbitrary. It is difficult to define qua modo of exercise of discretion by the plaintiff in its definite terms. But it could safely be stated in certain terms that exercise of such discretion has to be bonafide and within the prescribed norms of law. In the case of Minakshisunderam Chettiar (supra) the Supreme Court held as under :-
In the suit for accounts, the plaintiff is required to state the amount at which he values the relief sought. In suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to, for, when the plaintiff asks for accounting regarding the management by a power of attorney agent, he might not know the state of affairs of the defendants' management and the amount to which he would be entitled to on accounting. But it is necessary that the amount at which he values the relief sought for should be a reasonable estimate.
If on the materials available before it the court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected under O.7 R.11(b). It is therefore necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. In coming to the conclusion that the suit is undervalued the court will have to take into account that in a suit for accounts, the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount, he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The plaintiff cannot arbitrarily and deliberately undervalue the relief.
A Full Bench of this Court in the case of Mahant Purshottam Dass and Anr v. Hari Narian and Ors. while accepting the right of the plaintiff to value its suits contemplated under section 7(iv) of the Act but obviously subject to the limitation stated therein, it was further held that the question has to be determined on the basis of the allegations made in the plaint and the prayer made therein. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for. In the case of Anil Rishi v. Gurbaksh Singh , the Court while looking into the substance of the plaint had directed the plaintiff to pay the court fee on the value reflected on the document in a suit for declaration and that such document was liable to be cancelled being result of a fraud and misrepresentation.
On the correct analysis of the judgments of the above court, it is clear that right of the plaintiff to value a suit for the purposes of court fee and jurisdiction and grant of relief cannot be absolutely arbitrary, unfounded and unreliable to the contents of the plaint. If the plaintiff oust to give some definite measures and sums in the plaint which according to the plaintiff are recoverable from the defendant, then defendant cannot be permitted to turn back to plead that the sum cannot be determined at the time of institution of the suit. In the case of H.L. Malhotra (supra), the Division Bench itself had relied upon the judgment of the Supreme Court in Minakshisundram Chettiar (supra) and held that the plaintiff is entitled to value the suit for the purposes of court fee at fixed value and for the purposes of jurisdiction, he can fix an estimated value which he thinks may be found due. This preposition of law can hardly be disputed. But what has to be seen is whether this judgment has any application to the present case. In the paragraph of the judgment above referred, the plaintiff had categorically stated that Commission would have worked out to about Rs.4 crores which was becoming payable immediately. Further more, it is stated that the defendant was supposed to make payment of Rs.40 lacs approximately to the plaintiff. This was apart from the commission from the Government orders from Orissa cyclone victims. Thereafter it is stated that sum of Rs.42 lacs was payable in relation to the matters of CWC orders. While referred to the meeting dated 23rd March, 2001, it is stated by the plaintiff that in the meeting he was told that the amount of approximately Rs.40 lacs was due and payable as commission and would be released only if the documents were signed. In face of these definite averments, it cannot be said that plaintiff was incapable of computing the figure exactly due to the plaintiff at the time of institution of the suit. Admittedly, the arrangement of commission between the parties cancelled on 23rd March, 2001 which is stated to be cause of action in favor of the plaintiff and against the defendant and by that time all transactions were known to the plaintiff and he was entitled to as per his own case 25% in terms of the commission agreement. The figures mentioned by the plaintiff in the plaint clearly show that plaintiff has actually claimed a sum of Rs.4 crores (para 19) + Rs.40 lacs (para 21) and another Rs.40 lacs (para 23). Thus the plaintiff ought to have paid court fee on these sums or on Rs.6 crores which have been estimated by him without giving any details. The estimation arrived at by the plaintiff appears to be without any basis and the plaintiff has taken recourse to complete arbitrariness in availing of the benefit available to him under the provisions of the Court Fees Act. Lack of bonafides on the part of the plaintiff would cloud this right available to the plaintiff and the Court would be compelled to examine the content of the plaint and require the plaintiff to pay the requisite ad valorem court fee on the actual amounts claimed in the suit. In view of the above discussions, I would allow the application of the defendant partly and in terms of provision to Order 7 Rule 11 CPC would grant an opportunity to the plaintiff to value the suit correctly as aforenoticed and pay the ad valorem court fee there upon within four weeks from the date of pronouncement of this order. The application is accordingly disposed of.
In the event, the plaintiff fails to comply with the conditions of this order, its plaint shall be liable to be rejected in terms of these provisions.
9. In the light of the above principles, now it will be proper to revert to the facts of the present case. The plaintiff has stated pecuniary value of the suit for 10 the purposes of jurisdiction at Rs. 25 lacs. How could it fix the value of suit for the purposes of payment of court fee at Rs.200/- is the basic question?
10. Section 7 of the Court Fees Act, 1870 provides for computation of fees payable in suits. Under Section 7(iv)(d), to obtain an injunction, the plaintiff shall state the amount at which relief sought is valued and under Section 8 of the Suits Valuation Act, 1887, the plaintiff is obliged to value the suit for the purposes of court fee and jurisdiction identically except for the exceptions provided under Section 7 of the Court Fees Act, 1870. According to the plaintiff, in terms of Section 7(iv)(d), it has stated the amount at which it has valued the reliefs sought. The prayed relief is that of prohibitory and mandatory injunction. What are the basis for causing an exception in deference to the statutory provisions of the Suits Valuation Act, 1887 or the Court Fees Act, 1870, requires consideration. According to the plaintiff, it has valued the suit in terms of Section 7(iv)(d) read with entry 17(vi) of Schedule II of the Court Fees Act as applicable to Delhi. Clause (vi) of entry 17 of Schedule II of Court Fees Act states that in "every other suit where it is not possible to estimate at a money-value the subject matter in dispute, and which is not otherwise provided for by this Act", the plaintiff could pay the fixed court fee of Rs. 13/-. This argument besides being mis-conceived is also without any basis. It is the contention based upon mis-construction of law.
18. In the present case the plaint of the plaintiff clearly shows that plaintiff is neither in possession nor in control or management of the property, even jointly. The right of the plaintiff in regard to possession or management is apparently an admitted fact. Paragraph 25 of the plaint does not further the case of the plaintiff. The plaintiff therefore could not have valued the suit in regard to the relief of partition, for the purposes of jurisdiction at Rs. 100 crores while valuing the same for the purposes of court fee at a fixed rate of paying only Rs. 20/- in terms of Article 17 in Schedule II of the Court Fee Act. In these circumstances of the case and the plaintiff being not in a position, symbolic or otherwise, and having no role in the management of the said properties, the plaintiff would be required to pay ad valorem court fee at Rs. 100 crores, the valuation stated for the purposes of jurisdiction. The arguments raised on behalf of the plaintiff violates the known principles governing this aspect and the plaintiff is obliged to pay the court fee, ad valorem, in accordance with law.
19. The plaintiff cannot take any advantage of the judgment of the Supreme Court in as in that case there were averments and counter averments made by the parties in regard to exclusion from possession. In the present case the exclusion has certainly been admitted in the plaint, and the letters prior to the institution of the suit reproduced in the plaint, even demonstrate the same state of affairs. As far as the relief of rendition of accounts is concerned, the plaintiff has stated in the plaint that she is not in possession of any information which would help her in computing the amount due and payable to her in relation to the rent payable for the various properties, subject matter of the suit, as it is a pious hope of the plaintiff, as stated in paragraphs that she expects that on true and correct rendition of accounts the amounts may be Rs. 10 crores or more but as of today she cannot determine the exact amount due and payable to her. As such she has paid the fixed court fee with an undertaking to pay the balance court fee upon true and correct rendition of accounts.
20. In the case of Smt. Surinder Kaur and Ors. v. S. Rajdev Singh and Ors. [CS(OS) No. 1806/1999] decided on 27th October, 2005, the court held as under:-
16. Coming to the last contention raised on behalf of the defendants/applicants that the plaintiffs ought to have paid the ad valorem court fee in relation to the claim of rendition of accounts as well, it may be noticed that in the prayer clause, the plaintiffs have claimed a sum of Rs.54 crores which according to them could be payable to them in accordance with true and correct rendition for settlement of accounts. According to the applicants this sum of Rs.54 crores is based upon rational basis calculated by the plaintiffs and is not an imaginary figure. The plaintiffs, in fact, in their plaint have referred to the very basis of these Rs.54 crores including the letters exchanged between the parties. In this regard, reference has been made to some of the paragraphs in the plaint as well as paragraphs 15 and 32 of the replication filed by the plaintiffs.
17. Specific emphasis has been placed on the averments made in the plaint as well as paragraphs 26 and 29 of the reply to the preliminary objections and merits in the replication, that according to the plaintiffs, partners have invested about Rs. 50 crores in reconstruction and refurnishing of the hotel and also that the firm had invested more than Rs.50 crores in additions and alterations. Another averment made in the pleadings of the parties and the correspondence exchanged between them is that the defendants were ready to pay to the plaintiffs for such consideration in furtherance to the writing of the plaintiffs themselves. As such these provided definite data so as to value the suit for the purposes of court fee and jurisdiction. The plaintiffs could not have valued the suit for the purposes of pecuniary jurisdiction at Rs.54 crores and for the purposes of payment of court fee at a fixed sum of Rs.20/- . A reference was also made to the letter dated 13th May, 1999 in regard to the offer of the plaintiffs for valuation of the partnership properties. The learned counsel appearing for the applicant, while relying upon the judgment afore-referred as well as on the judgments of this court in the case of Wockhardt Veterinary Ltd. v. Raj Medicos and Anr. 1998 VI AD (Delhi) 1 argued that the plaint of the plaintiffs is liable to be rejected for non-payment of ad valorem court fee. With emphasis, he relied upon the following observations of the court:-
In the case before me the valuation for the purpose of jurisdiction has been quantified with the sole objective to confer jurisdiction on this Court as this Court will have pecuniary jurisdiction if the valuation of the subject matter is over Rs. 5 lakhs, otherwise in the normal course, the jurisdiction would lie with the District Judge. No doubt law provides that in case of relief for rendition of account when the amount is not ascertained the plaintiff cannot be asked to give a specific and ascertained figure of the amount on which relief is sought in the suit. But that does not give a license to the plaintiff to give a wholly arbitrary and unreasonable figure so as to divest a Court which has got the jurisdiction to try the suit and to invest a Court which for these aforesaid three lines would not have the jurisdiction to try the suit by giving a higher valuation so as to bring suit within the pecuniary jurisdiction of this Court.
18. On the other hand, the learned counsel appearing for the plaintiffs while relying upon the cases of Commercial Aviation and Travel Company and Ors. v. Mrs. Vimla Pannalal and Bombay Ammonia Pvt. Ltd. (supra) contended that it is only a fond hope of the plaintiffs that an amount of even more than Rs.50 crores may be due to the plaintiffs upon correct rendition of accounts by the defendants. There is no arbitrariness and the plaintiff's claim would be covered under Rule 4, the provisions of Section 7(4) of the Court Fee Act and the exception to the Rule of the Suit being valued identically for the purposes of court fee and jurisdiction. The principle of law cited on either side can hardly be a matter of dispute. The plaintiffs cannot act arbitrarily in valuing the suit for the purposes of court fee and jurisdiction. Wherever the suit for rendition of accounts is filed and it is not practically probable for the plaintiff to exactly value the suit for the purposes of court fee and jurisdiction, he can avail of the benefit of payment of fixed court fee with an undertaking to make up the deficiency in payment of court fee, once the accounts are settled and a definite amount is determined by the court, which the plaintiff would be entitled to receive. The application of the plaintiff to pay court fee on that amount can fully be protected by decree being subject to payment of court fee at that stage, of course, limited in such suits.
19. In the present case, the reference to Rs. 40 or 50 crores firstly relates only to renovation and furnishing of the hotel and does not even on the bare reading of the plaint, reflect to be the entire value of the assets and accounts of the partnership or as a true and correct depiction of the settled account or share of an individual partner. The figure arrived at by the plaintiffs should be definite and essentially must be based upon such determining factors which ex facie indicate an acceptable value of the assets of the partnership and its business, including all its aspect. Merely because some figure has been indicated in the pleadings or correspondence exchanged between the parties in regard to renovation and furnishing of the hotel, would not determine the complete settled accounts of the partnership so as to make the plaintiffs liable to pay the ad valorem court fee on the fond hope or an estimated figure. The plaintiffs would obviously be liable to pay the court fee on final determination arrived at by the court upon true and correct rendition of accounts, as admittedly the defendants are carrying on the business, though their pleading is that the partnership has already been dissolved.
20. In the circumstances aforestated, I find no merit in this objection raised on behalf of the defendants. In view of my above detailed discussion, the applications of the defendants are partially allowed and the plaintiffs are directed to make good deficiency in payment of court fee in relation to the relief of mesne profits within one week from today. In the event the deficiency is not made good, the plaint of the plaintiffs shall be liable to be rejected under the provisions of Order 7 Rule 11 of the Code of Civil Procedure. Other objections are rejected.
21. IAs No. 3144/2005 and 3145/2005 are disposed of accordingly, while leaving the parties to bear their own costs in these applications.
21. Consequently, in view of the above principles, it will be quite permissible to allow the request of the plaintiff for paying fixed court fee at this stage by accepting the undertaking given in the relevant paragraphs of the plaint. As such objection taken by the defendant is without any merit in this regard and is therefore dismissed. While rejecting the above objection of the defendants in regard to relief of rendition of accounts, the plaintiff is directed to pay ad valorem court fee in regard to relief of partition.
