Delhi High Court
M/S Delton Cables Ltd. vs Sh. Kishore Kumar Sharma & Ors. on 21 July, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
CM (M)No. 894/2010 & CM No. 12237/2010
% Judgment reserved on: 16th July, 2010
Judgment delivered on: 21st July, 2010
M/s Delton Cables Ltd.
Delton House, Bharat Ram Road,
24, Daryaganj,
New Delhi-110002.
....Petitioner
Through: Mr. N. K. Kaul, Sr. Adv. with
Mr. Rajesh Gupta and Mr.
Harpreet Singh, Adv.
Versus
1. Sh. Kishore Kumar Sharma.
2. Sh. Ashok Kumar Sharma.
3. Sh. Anup Kumar Sharma.
4. Sh. Vinod Kumar Sharma.
All sons of Sh. Amar Nath Sharma,
R/o 19/2-B, Shakri Nagar,
Delhi-1100007.
....Respondents
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
CM (M) No.894/2010 Page 1 of 8
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
Present petition has been filed under Article 227 of the Constitution
of India, on behalf of the petitioner, in which it is prayed that impugned
Order dated 2nd July, 2007, passed by Additional District Judge, Delhi, be
set aside. Vide impugned order, application of the petitioner filed under
Order 7 Rule 10 and 11 Read with Section 151 Code of Civil Procedure (for
short as „Code‟) was dismissed. In the application, petitioner itner alia
made the prayer to direct the respondents to pay court fee on market value
of suit premises and allow him to proceed with the suit only after he has
paid the requisite court fee for the relief of possession of suit property in
accordance with Section 7 Clause (v) of the Court Fee Act.
2. Brief facts of this case are that respondents herein, filed a suit for
recovery of possession, rent etc against the petitioner herein, in the year
1994. Petitioner filed his Written Statement in the year 1996. Parties have
led their respective evidence and matter is listed before trial court for final
arguments, when present application was filed.
3. It is contended by learned counsel for the petitioner that trial court
has mis applied Section 7 (xi) of Court Fee Act, 1870 to the suit whereas in
terms of specific pleadings of the plaintiffs/respondents the suit was
governed under Section 7 (v) of the Court Fee Act. The resultant effect of
the impugned order is that it erroneously alters the jurisdiction of the suit. In
case Section 7 (v) of the Court Fee Act is applied, the suit has to be valued
on basis of market value of the suit property which undoubtedly is much
more than Rs.20,00,000/- today as well as on the date of filing the suit. The
error therefore, attains seriousness since it results in giving jurisdiction to
the Court, which otherwise does not have the pecuniary jurisdiction to try
and entertain the suit. In support of its contentions, Learned counsel cited
following judgments;
1. Maiden Pharmaceuticals Ltd Vs. Wockhardt Ltd.
157 (2009) Delhi Law Times 65;
2. Biswanath Agarwalla Vs. Sabitri Bera and others,
(2009) 15 Supreme Court Cases 693.
3. Ravinder Kumar Rishi Vs. Sushma Rishi
102 (2003) Delhi Law Times 219.
4. Present petition has been filed under Article 227 of the Constitution
of India. It is well settled that jurisdiction of this Court under this Article is
limited.
5. Article 227 of The Constitution of India reads as under;
"227. Power of superintendence over all courts by
the High Court- (1) Every High Court shall have
superintendence over all courts and tribunals
throughout the territories in relation to which it
exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing
provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and
prescribe forms for regulating the practice
and proceedings of such courts; and
(c) prescribe forms in which books, entries
and accounts shall be kept by the officers of
any such courts.
(3) The High Court may also settle tables of fees to be
allowed to the sheriff and all clerks and officers of
such courts and to attorneys, advocates and pleaders
practicing therein;
Provided that any rules made, forms prescribed or
tables settled under clause (2) or clause (3) shall not be
inconsistent with the provision of any law for the time
being in force, and shall require the previous approval
of the Governor.
(4) Nothing in this article shall be deemed to confer on
a High Court powers of superintendence over any court
or tribunal constituted by or under any law relating to
the Armed forces."
6. In Waryam Singh and another Vs. Amarnath and
another, AIR 1954, SC 215, the court observed;
"This power of superintendence conferred by Article
227 is, as pointed out by Harries, C. J., in -„Dalmia
Jain Airways Ltd. V. Sukumar Mukherjee‟, AIR 1951
Cal 193 (SB) (B), to be exercised most sparingly and
only in appropriate cases in order to keep the
Subordinate Courts within the bounds of their
authority and not for correcting mere errors."
7. In Mohammed Yusuf Vs. Faij Mohammad and Ors.,
2009 (1)SCALE71, Supreme Court held;
"The jurisdiction of the High Court under
Article 226 & 227 of the Constitution is limited.
It could have set aside the orders passed by the
Learned trial court and Revisional Court only on
limited ground, namely, illegality, irrationality
and procedural impropriety".
8. In State of West Bengal and Ors. Vs. Samar Kumar Sarkar,
JT 2009 (11) SC 258 Supreme Court held;
„10. Under Article 227, the High Court has
been given power of superintendence both in
judicial as well as administrative matters over
all Courts and Tribunals throughout the
territories in relation to which it exercises
jurisdiction. It is in order to indicate the
plentitude of the power conferred upon the High
Court with respect to Courts and the Tribunals
of every kind that the Constitution conferred the
power of superintendence on the High Court.
The power of superintendence conferred upon
the High Court is not as extensive as the power
conferred upon it by Article 226 of the
Constitution. Thus, ordinarily it will be open to
the High Court, in exercise of the power of
superintendence only to consider whether there
is an error of jurisdiction in the decision of the
Court or the Tribunal subject to its
superintendence.
12. In Bathutmal Raichand Oswal Vs.
Laxmibai R. Tarta (AIR1975SC1297) this Court
again reaffirmed that the power of
superintendence of the High Court under Article
227 being extraordinary was to be exercised
most sparingly and only in appropriate cases.
High Court‟s function is limited to see that the
subordinate court or Tribunal functioned within
the limits of its authority. The Court further said
that the jurisdiction under Article 227 could not
be exercised as the cloak of an appeal in
disguise.‟
9. In Laxmikant Revchand Bhojwani and Anr. Vs. Pratapsing
Mohansing Pardeshi Deceased through his Heirs and Legal
representatives, JT 1995(7)SC400, Apex Court observed;
"The High Court under Article 227 of the
Constitution of India cannot assume unlimited
prerogative to correct all species of hardship or
wrong decisions. It must be restricted to cases
of grave dereliction of duty and flagrant abuse
of fundamental principles of law or justice,
where grave injustice would be done unless the
High Court interferes."
10. In light of principles laid down in the above decisions, it is to be seen
as to whether present petition under Article 227 of the Constitution of India
against impugned orders is maintainable or not.
11. It is apparent from the record that, petitioner who filed its Written
Statement as early as in the year 1996, never took any objection with regard
to the Court Fee.
12. Nevertheless record of this case speaks for the conduct of the
petitioner, who has been moving one application after the other and his only
intention is to delay the proceedings when the matter has reached the stage
of final arguments. In this regard, observations made by the trial court in
impugned order are very much relevant and the same are reproduced as
under;
"I have given my thoughtful consideration to the rival
submissions of the counsels for the parties. I have also
carefully perused the entire relevant material placed on
record and in my considered opinion there is substance
in the contentions of Ld. Counsel for the plaintiffs that
the instant application as filed by Ld. Counsel for
defendant is nothing but an abuse of the process of
law. The application is not only misconceived and
unnecessary but also motivated too which has been
filed with the sole intention to delay the proceedings
which is pending for the last 16 years and in this case
the Hon‟ble High Court of Delhi has already given
directions to dispose this case in the time bound
period. I also find myself in agreement with Ld.
Counsel for the plaintiff that the defendant is not the
rank trespasser but he is continuing in possession after
termination of his tenancy by giving the notice and in
this circumstances, the suit has been property valued
on the basis of this annual rent under the provisions of
section 7 clause (xi) of Court Fees Act.
It is well settled proposition of law that the landlord
can maintain a suit for ejectment and such a suit will
be governed by Section 7 (xi) (cc) Court Fee Act. The
suits which are contemplated by Section 7 (v) (e) are
suits based on title where a total stranger and usurper
has got into the possession of the house initially by an
overt act or claims and independent title.
In the instant case the circumstances are not such
where a total stranger and usurper has got into the
possession of the house initially by an overt act or the
independent title has been claimed. Rather, it is a case
where the defendant was the tenant and admittedly the
notice of the termination of tenancy was issued u/s 106
of Transfer of Property Act. Hence, it cannot be said
that the valuation of the suit has not been done
properly.
For the said reasons, I do not find any substance in
the application. As such, the same is liable to be
dismissed and same stands dismissed accordingly."
13. Under these circumstances, I find that there is no illegality, infirmity
or irrationality in the impugned order passed by the trial court. The
judgments cited by learned counsel for the petitioner are not applicable to
the facts of the present case. Hence, the present petition under Article 227
of the Constitution of India is not maintainable.
14. Nonetheless, as case is at the stage of final arguments, objections
with regard to Court Fee being legal one, the petitioner can take the same
during the course of final arguments, if permissible under the law.
15. Copy of this order be sent to the trial court.
CM NO. 12237/2010
16. Dismissed.
21st July, 2010 V.B.GUPTA, J.
ab
