Bharat Bhushan Sabharwal vs Rama Bhasin & Ors.
2010 Latest Caselaw 884 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CM(M) No.1601/2007 & CM A. No.2119/2008 (u/S 151 for Stay)

%                                        Date of decision:16th February, 2010

BHARAT BHUSHAN SABHARWAL                        ..... Petitioner
            Through: Mr. Sandeep Sethi, Sr. Advocate with Mr.
                     Sanjay Chhabra, Advocate.
                                     Versus
RAMA BHASIN & ORS.                                        ..... Respondents
                     Through:      Mr. Y.P. Bhasin, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may
        be allowed to see the judgment?                    No

2.      To be referred to the reporter or not?             No

3.      Whether the judgment should be reported            No
        in the Digest?

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 227 of the Constitution of India has been

preferred by one of the defendants in the suit filed by the respondent No.1

plaintiff and pending before the court of the Civil Judge, Delhi and with

respect to the order dated 13th July, 2007 dismissing the application of the

petitioner/defendant under Order 7 Rule 11 of the CPC. This Court vide

order dated 12th February, 2008 stayed further proceedings before the Civil

Judge, Delhi. Subsequently vide order dated 29 th April, 2009 which

continues to be in force, the Learned Civil Judge, Delhi was permitted to

proceed with the matter but was directed not to pass final judgment.

2. The respondent No.1/plaintiff instituted the suit claiming that she and

Major Dharam Bhushan Sabharwal were the only children of one Shri Sewa

Ram Sabharwal and Smt. Kaushayala Sabharwal; that on demise of Smt.

Kaushayala Sabharwal, Shri Sewa Ram Sabharwal remarried defendant

No.1 in the suit namely Smt. Savitri Sabharwal and from which marriage the

defendants No.2,3&4 and of which petitioner is one were born; that Major

Dharam Bhushan Sabharwal was not married and had no children and died

leaving the respondent No.1/plaintiff as his sister and only natural heir; it

was claimed that Major Dharam Bhushan Sabharwal had also executed a

Will bequeathing his assets to the respondent No.1/plaintiff. The suit was

filed only with respect to the one of the said assets being the property No.93,

Uday Park, New Delhi - 110 049 (excluding the first floor thereof which

was stated to have been sold off by Major Dharam Bhushan Sabharwal in his

life time). It is the case of the respondent No.1/plaintiff in the plaint that the

said property was in possession of Major Dharam Bhushan Sabharwal and

after his death is lying locked; that the defendants though having no right to

the said property being not the legal heirs of Major Dharam Bhushan

Sabharwal were trying to forcefully occupy the said property. The

respondent No.1/plaintiff thus sued for declaration that she, on demise of

Major Dharam Bhushan Sabharwal, was the owner of the said property and

for injunction for restraining the defendants from entering the said property

and from interfering with the respondent No.1/plaintiff entering and

occupying the said property. The petitioner/defendant filed an application

under Order 7 Rule 11 of the CPC contending that the respondent

No.1/plaintiff in the garb of the reliefs claimed in the plaint was seeking

possession of the property and was bound to pay court fees on ad valorem

basis.

3. The respondent No.1/plaintiff filed a reply to the said application

denying that the suit had not been valued correctly for the purpose of court

fees and jurisdiction or that appropriate court fees had not been affixed on

the plaint. It was further stated in the said reply that at the time of institution

of the suit the said property was in possession of a third party i.e. Shri M.

Sundaram who was looking after the affairs of Major Dharam Bhushan

Sabharwal and the said Shri M. Sundaram had, after the institution of the

suit delivered the possession of the property to the respondent No.1/plaintiff.

4. The Learned Civil Judge has in the short order impugned in this

petition observed that to ascertain the cause of action only the plaint and the

supporting documents have to be looked into and not the written statement

and further held that on a reading of the plaint, it discloses a cause of action

as the suit is valued properly as per the averments in the plaint.

5. The petitioner has in the petition preferred before this Court though

not denying that the respondent No.1/plaintiff since the institution of the suit

has been put into possession of the property pleaded the aforesaid Mr.M.

Sundaram to be in collusion with the respondent No.1/plaintiff. It is also

pleaded that the respondent No.1/plaintiff is in fact not the sister of Major

Dharam Bhushan Sabharwal and claimed that he was also born out of the

second marriage of Shri Sewa Ram Sabharwal with defendant No.1. It is

also pleaded that the respondent No.1/plaintiff by way of the suit is seeking

a declaration of title to property and the said declaration ought to be

appropriately valued. The senior counsel for the petitioner at the time of

hearing has further contended that the relief of injunction claimed in the suit

is consequential to the relief of declaration and thus the plaint cannot be

valued as in a suit for declaration simplicitor and ought to have been valued

appropriately and is liable to be rejected if not so valued appropriately.

Reliance is placed on Renu Nagar Vs. Anup Singh Khosla 156 (2009) DLT

723, Automatic Electric Limited Vs. R.K. Dhawan 57 (1994) DLT 49 &

M/s Maharaji Educational Trust Vs. Punjab & Sind Bank 2006 (127) DLT

161.

6. Per contra, the counsel for the respondent No.1/plaintiff has

contended that as far as the relief of declaration claimed in the suit is

concerned, the same is within the ambit of Article 17(iii) of Schedule II to

the Court Fees Act and as far as the relief of injunction is concerned, the

relevant provision is contained in Section 7 (iv) (d) and the relief of

injunction is independent from the relief of declaration and not consequent

to the relief of declaration. The respondent No.1/plaintiff has in the plaint

valued the relief of declaration for the purposes of court fees at Rs.19.50 and

at Rs.130/- for the reliefs of injunction.

7. I may notice that the arguments raised before this Court qua valuation

are different from the ground on which the application under Order 7 Rule

11 of the CPC was filed. The only ground therein was of the relief claimed

in the suit being in fact of possession and being required to be so valued.

The impugned order is also in terms thereof only. No error can be found in

the order of the Learned Civil Judge, Delhi qua the said objection. The plaint

cannot be read as for the relief of possession. In this regard, it is significant

that the petitioner/defendant also in the application under Order 7 Rule 11 of

the CPC did not claim to be in possession of the property and/or did not

expressly take a plea that the suit for declaration alone was not maintainable

under Section 34 of the Specific Relief Act. The case with which the

respondent No.1/plaintiff approached the court was that on the demise of

Major Dharam Bhushan Sabharwal, she being his only heir had become the

owner of the property and the defendants were threatening to forcefully enter

the same and/or interfering in the respondent No.1/plaintiff entering the

same. The title to a property, in law, devolves and/or is deemed to devolve

on the rightful heir on the very moment of the demise. No letters of

administrations or probate of Will are necessary in the City of Delhi for

devolution of title. Reference in this regard may be made to Behari Lal Ram

Charan Vs Karam Chand Sahni AIR 1968 P&H 108, Rajan Suri Vs The

State AIR 2006 Delhi 148 and Banwari Lal Charitable Trust Vs UOI

MANU/DE/2575/2009. The respondent No.1/plaintiff, thus if the only heir

of the aforesaid Major Dharam Bhushan Sabharwal, became the owner on

the very moment the said Major Dharam Bhushan Sabharwal died. It is also

the plea of the respondent No.1/plaintiff that Major Dharam Bhushan

Sabharwal was in possession of the said house as owner and as such the

respondent No.1/plaintiff at the moment of the demise of Major Dharam

Bhushan Sabharwal would also be deemed to be in possession of the

property. In such eventuality the heir cannot be asked to claim the relief of

possession. The only grievance of the respondent No.1/plaintiff was of the

defendants in the suit disputing her title and on which account declaration

was claimed and of interfering in her use and occupation of the property and

on which account the relief of injunction was claimed. In fact the respondent

No.1/plaintiff could have simply claimed the relief of injunction. A

declaration is inherent in all claims for injunction in as much as without

establishing a right or title, no injunction can be issued. The ambiguity if any

in the plaint in any case is clarified by the subsequent admitted events of the

respondent No.1/plaintiff having been put into possession of the property. It

would be a travesty of justice to, in view of such circumstances hold that in

spite of being in possession of the property, the respondent No.1/plaintiff is

required to sue for possession and/or to pay court fees therein.

8. As far as the contentions raised by the petitioner/defendant No.1

before this Court are concerned, I do not find that the relief of injunction

claimed by the respondent No.1/plaintiff was consequential to the relief of

declaration or that a simplicitor declaration would not have served the

purpose of the respondent No.1/plaintiff. The two reliefs are thus found to be

disjunctive and injunction is not found to be consequential to the relief of

declaration so as to take away the relief of declaration from the ambit of

Article 17(iii) of Schedule II to the Court Fees Act.

9. The judgments relied upon by the senior counsel for the petitioner are

also not found to be apposite. In Renu Nagar (supra) the suit for mandatory

injunction was found to be in fact a suit for possession and directed to be

valued as such. The respondent No.1/plaintiff though in the prayer para (b)

of the plaint in the present case has used the expression "mandatory

injunction" but the relief claimed is not of mandatory injunction directing

the defendants to do anything but a preventive injunction restraining the

defendants from entering the property. When the defendants admittedly

were/are not in possession of the property, the question of the respondent

No.1/plaintiff seeking a mandatory injunction against them for delivery of

possession does not arise. Automatic Electric Limited (supra) though laying

down that the valuation for the purpose of jurisdiction cannot be fixed

whimsically is in relation to a suit for injunction restraining infringement of

trademark and passing off and is in a different context. The whole purpose

of Article 17 (iii) (supra) was to not burden the plaintiff who was entitled to

a mere declaration, with ad valorem court fees leviable under the law if the

consequent relief such as of possession was not necessary for granting

complete relief to the plaintiff. In M/s Maharaji Educational Trust (supra)

the reliefs claimed were found to be intended to defeat the claims of the

bank against the plaintiff before the DRT and were as such ordered to be

valued so. The said principles cannot be applied to the facts of the present

case.

No ground is made out for interference under Article 227 of the

Constitution of India. The petition is dismissed. The interim orders are

vacated. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

February 16, 2010 pp