Prabhash Verma @ Kuku vs Anil Bansal & Anr.
2010 Latest Caselaw 4273 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CS(OS) NO. 1284/2008

                                         Date of Decision 14.09.2010

Prabhash Verma @ Kuku                           ......   Plaintiff
                              Through:    Mr.    Manmeet    Singh,
                                          Advocate

                                Versus

Anil Bansal & Anr.                         ...... Defendants
                              Through:    None

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                         YES
2.     To be referred to the Reporter or not ?               NO
3.     Whether the judgment should be reported
       in the Digest ?                                      NO

V.K. SHALI, J.

IA No. 8053/2010

1. This order shall dispose of application bearing No. 8053/2010

under Order 47 Rule 1 read with section 151 CPC for review

of orders dated 25.05.2010.

2. Briefly stated the facts of the case that the plaintiff has filed

the present suit for declaration, possession, mesne profits,

damages and permanent injunction with regard to the suit

property bearing no. 3, Park Avenue, Maharani Bagh, New

Delhi. It has been alleged in the plaint that the plaintiff was

having business transaction with the defendants and that on

account of some reasons, the plaintiff went into financial

difficulties because of which he had to borrow the money from

the defendant. The defendant is alleged to have got various

documents like GPA, WILL and agreement to sell executed in

his favour in respect of the first and second floors of the suit

property from the plaintiff reflecting the sale value at

Rs.40,00,000/-. All the documents were got duly registered

in the Sub Registrar Office. The plaintiff has in the prayer

clause prayed for declaration of all these documents like GPA,

WILL and agreement to sell etc. to be declared as null and

void.

3. The plaintiff has also prayed for a declaration that he be

declared as the sole owner/lessee in respect of property

bearing no. 3, Park Avenue, Maharani Bagh, New Delhi apart

from claiming mesne profits, damages @Rs.3,00,000/- per

month for depriving him of the benefit of the first floor of the

suit premises.

4. The defendants has filed its written statement and contested

the claim of the plaintiff. It has taken the plea that the

plaintiff has sold the suit property in favour of the defendant

and handed over the possession to him of the entire first floor

consisting of three bed rooms with a attached toilets, one

drawing cum dining room, one dressing room, one kitchen,

entrance lobby, family lounge, one pooja room, front and rear

balconies, two servant quarters with common W.C. on the top

terrace, 50% share in driveway on ground floor with common

right of parking therein and also entire terrace over and above

the entire first floor, with 50% undivided, indivisible and

impartible sub-lease ownership right in the said plot of land

measuring 500 sq. yards.

5. After completion of the pleadings no admission/denial could

be conducted as the original documents were not filed.

6. On 25.05.2010, the matter was listed before this Court for

framing of issues, however, on perusal of the prayer clause it

was noticed that as the plaintiff was claiming physical

possession in respect of the first and second floors of the suit

property and in para 29 of the plaint neither any valuation for

the purpose of possession has been given nor any court fees

has been paid, accordingly, the plaintiff was directed to pay

deficient court fees and rectify the deficiency. This order

was passed in the presence of the counsel for the plaintiff in

view of Order VII Rule 11 sub clauses b and c of the CPC. As

a matter of fact, the plaintiff was given some time to pay the

deficient court fees at the request of the learned counsel for

the plaintiff and the matter was adjourned to 27.07.2010.

Instead of paying the deficient court fees the plaintiff has filed

an application on 02.06.2010 for review of the order dated

25.05.2010. Alternatively, it has been prayed that the order

dated 25.05.2010 be recalled, modified or varied and/or apart

from other proposed issues, an issue regarding the valuation

of the suit be framed and the case may be put to trial. It is

stated that this course be followed because the possession

which is being claimed by the plaintiff is only a consequential

relief, and therefore, he is not required to pay the court fees.

7. I have heard the learned counsel for the plaintiff on the

application and perused the record.

8. At the outset, this must be pointed out that the application of

the plaintiff deserves to be summarily rejected because by

virtue of the present application the plaintiff is seeking review

of orders dated 25.05.2010 and yet in the application he has

not mentioned even a single fact which would show that

there is any error apparent on the face of record which would

warrant the review of the orders dated 25.05.2010. There is

no dispute about the fact that the review of an order in terms

of Order 47 Rule 1 CPC would lie only if there is an error

apparent on the face of the record or some new fact or

document has been discovered by a party which was not in

the knowledge or possession of the said party earlier at the

time when the order was passed. None of these two

contingencies have been averred in the application. On the

contrary, the ground for recalling modifying or varying the

order is that the relief of possession which is claimed by the

plaintiff is a consequential relief to the declaration which is

sought by the plaintiff, and therefore, in terms of Section

7(iv)(c) Court Fees Act, he is not required to pay the court

fees with regard to the suit for possession. It is stated that

the suit has been valued at Rs.40,00,000/- which is the sale

transaction reflected in the agreement to sell of which a court

fees of Rs.40,000/- has already been paid.

9. There is no dispute about the fact that the plaintiff is claiming

the relief of declaration to the effect that the GPA, WILL and

agreement to sell in respect of the suit property dated

28.04.2005 be declared null and void. The plaintiff is also

seeking declaration to the effect that he is the owner of the

entire suit property bearing no. 3, Park Avenue, Maharani

Bagh, New Delhi. The plaintiff has also claimed that the

relief of possession in respect of the first floor and the second

floor of the suit property.

10. Seen in the light of of these reliefs, the plaintiff has not

correctly valued his suit for each of the relief claimed by him.

The valuation clause of the plaint reads as under:

"The value of the suit is fixed at Rs.40,00,000/- for the purposes of jurisdiction and declaring the GPAs dated 28.04.2005 registered as no. 6301 and 6302 on book no. 4 volume no. 2505 on page no. 32 to 38 and 39 to 45 and WILL the registered as no. 5941 in book no. 3 volume no. 1372 on page no. 69-70 dated 28.04.2005 along with the agreement to sell valued at Rs.40,00,000/- dated 28.04.2005 registered having registration no. 6359 in book no. 1 volume no. 4938 on pages no. 144- 164 in the office of Sub Registrar, Delhi to be null and void/redundant and for possession of the first floor of the suit premises and requisite court fee stands paid. The relief of declaration of title of the plaintiff qua his own property is valued at Rs.200/- and requisite court fee stands paid thereon. The relief of the injunction is valued at Rs.130/- and requisite court fee stands paid on the same. The plaintiff undertakes to make good any deficient court fee on any account as and when directed upon or found by this Hon'ble Court ad deficient."

11. A perusal of the aforesaid para would clearly shows that the

suit has been valued only for the purpose of declaration and

not for any other purposes while as individual valuation has

to be reflected in the para with regard to the payment of court

fees and then appropriate court fees has to be paid. In the

instant case, the declaration which is being sought by the

plaintiff is the cancellation of documents and the same being

declared as null and void and obviously as the sale

consideration which has changed the hands is

Rs.40,00,000/-, therefore, it has rightly been valued at

Rs.40,00,000/- and appropriate court fees has been paid.

Since the plaintiff has claimed second declaration with regard

to his being declared as the owner of the suit property also

the plaintiff in terms of the Section 7(C) has to value the said

declaration and pay an appropriate court fees on the same.

Further, the plaintiff has not valued the possession at all,

much less has he paid the court fees. The relief of plea of the

plaintiff that the possession of the first floor and the second

floor of the suit property in respect of which relief is being

claimed is a consequential relief cannot be accepted.

Consequential relief is the relief which automatically flows

from the principle relief which a party is claiming but in the

instant case the recovery of possession from the defendants

by the plaintiff cannot be said to be a consequential relief. It

is not to follow as a matter of consequence to the plaintiff

assuming for the sake of argument the plaintiff would not

claim this relief of possession he has to file a separate suit for

possession and value the relief and pay the court fees. The

relief of possession is an independent relief which is claimed

by the plaintiff, and therefore, the plaintiff had to give

valuation to the said relief of possession which may be based

on the circle rates of the properties fixed in that locality.

Further Section 7(v) also lays down that in a suit for recovery

of possession of land, house and garden, the Court fees will

be payable on the value of the subject matter which shall be

deemed as given in the Section thereunder. The said Section

gives various options as to what would be the value in

different situations like in cases specific performance, it

would be the sale consideration and in a case between the

landlord and tenant, it would be according to Section 7(xi) of

the Court Fees Act, while as in the present case, suit for

possession has not been valued at all. This is not

permissible.

12. It is in this context that the Court while framing the issues

under Order VII Rule 11 sub clauses (b) and (c) of the CPC

has to give an opportunity to the plaintiff to remove the

deficiency in payment of court fees to which the learned

counsel for the plaintiff had also not protested at that time

and as a matter of fact he had sought time to pay the

deficient court fees and now to turn around to say that no

court fees on possession is payable is not in consonance with

law.

13. For the reasons mentioned above, I feel that as there is no

error apparent on the face of record in the order dated

25.05.2010 which warrants its review. The deficiency of

court fees has to be rectified before the plaintiff can be

permitted to prosecute his remedy. So far as the prayer of

the plaintiff that an issue may be framed and he may be

permitted to adduce the evidence cannot be acceded to as this

is an issue which needs to be decided on the threshold in

terms of the Order VII Rule 11 CPC, therefore, alternative

prayer of the plaintiff is also rejected. Accordingly, the

application of the plaintiff is dismissed. The plaintiff is given

one last opportunity to pay the deficient court fee within a

period of four weeks from today.

14. Post the matter before the learned Joint Registrar on

01.11.2010 for further proceedings.

V.K. SHALI, J.

September 14, 2010 KP