Sarabjit Prakash & Anr. vs Udyajit Prakash & Ors.
2010 Latest Caselaw 4274 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CS(OS) NO. 2506/2000

                                        Date of Decision : 14.09.2010

Sarabjit Prakash & Anr.                            ......       Plaintiffs

                               Through:     Mr. Manu Payar with Mr.
                                            Karan Chauhan, Advs.
                                  Versus

Udyajit Prakash & Ors.
                                            ....... Defendants
                               Through:     Mr. Sanjiv Bahl, with Mr.
                                            Rajiv Dubey & Mr. Rajan
                                            Narain, Advs. for Defendant
                                            nos. 1 to 4.
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 ?                 YES
3.     Whether the judgment should be reported
       in the Digest ?                                        YES


V.K. SHALI, J.

IA No. 5066/2009

1. This order shall dispose of IA No. 5066/2009 under Section 151 of

CPC filed by the plaintiff for recalling the order dated 29.01.2009

and 17.02.2009 and proceeding with the case on merits.

2. Briefly stated the facts of the case are that the plaintiffs who are

two in number filed the present suit for partition, rendition of

accounts and damages against the five defendants, namely, Udyajit

Prakash, Chander Mohini Kochhar, Sushma Lal, Veena Uppal and

Deepa Puri. The partition was sought in respect of property

bearing no. 33, Sunder Nagar, New Delhi in which both the

plaintiffs have claimed 1/7th share each as it belonged to their

ancestors. It was stated in para 7 of the plaint that all the movable

and immovable properties left behind by the deceased mother of

the plaintiff Raj Mohini was in physical and actual possession of

the defendant. In para 8 it was alleged that the defendant no. 1

is in physical possession of the suit property and he has deprived

the plaintiffs from actual enjoyment of the same. It was alleged

that the defendants are liable to pay damages to the plaintiffs as

he was entitled to the same being the co-owner of the suit

property.

3. On the basis of these averments my learned predecessors vide

order dated 28.11.2008 had referred to these two paragraphs of

the plaint and observed that the plaintiffs were admittedly ousted

from the possession, therefore, the plaintiffs will have to pay ad

valorem court fees. As they had prayed for possession, the court

fee was payable on the same also. It was also observed that the

learned counsel for the plaintiffs had sought time to examine these

aspects and also to consider amendment of plaint.

4. The matter was adjourned to 29.01.2009 on which date the

learned counsel for the plaintiff sought more time to pay the court

fees and file the amendment application. The matter was

adjourned to 17.02.2009. This Court gave one final opportunity to

pay the court fees and file necessary application and the matter

was adjourned to 13.04.2009. On 13.04.2009 the present

application was filed and it was urged before the Court that the

plaintiffs are not liable to pay ad valorem court fees, and therefore,

the suit may be heard and decided on merits. It is this application

which is under consideration.

5. The main contention made by the learned counsel for the plaintiffs

in the application is that the order dated 29.01.2009 and

17.02.2009 wherein the plaintiff has been directed to pay ad

valorem court fees, deserves to be recalled and the case be

proceeded on merits. This is on account of the fact that admittedly

the suit property belonged to Raj Mohini. Since Raj Mohini died

intestate, therefore, all her legal heirs numbering seven were in

constructive possession of their respective undivided share of the

property. So far as the first floor of the suit property is concerned,

it is alleged that the same is under the tenancy of a tenant and

although the defendant no. 1 is receiving the rent, however, the

plaintiffs are also entitled to claim the possession as well as the

rent in respect of the first floor. It is also alleged that the

defendant no. 1 who is the main contesting defendant in the

present suit had filed a probate petition on the basis of WILL

purported to have been made by the deceased Raj Mohini,

however, the said probate petition has been dismissed and

therefore it is alleged by the learned counsel for the plaintiff, that

Raj Mohani having died intestate, which would mean that the

plaintiffs are in constructive possession of the suit property, and

therefore, no ad valorem court fees is payable. The learned

counsel for the plaintiffs in support of his arguments has referred

the judgment of the Supreme Court title Neelavathi & Ors. Vs. N.

Natarajan & Ors. AIR 1980 SC 691 wherein it has been observed

as under:

"The general principle of law is that the case of co- owners, the possession of one is in law possession in all, unless ouster exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiff could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from joint possession, it is necessary that on a reading of the plaint that they had been excluded from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admissions that the plaintiff had been excluded from possession."

6. I have heard the learned counsel for the plaintiffs and perused the

judgment cited. So far as the proposition of law laid down by the

Supreme Court in Neelavathi & Ors. Vs. N. Natarajan & Ors. AIR

1980 SC 691 is concerned, there is no dispute about the same.

The Supreme Court in the said case has categorically observed

that for the plaintiff being called upon to pay the court fees under

Section 39 of the Court Fees Act, he must have been excluded from

the joint possession. In the facts of the said case the Court had in

the light of averments made, in the plaint held that the plaintiffs

could were in joint possession. In the case reported there was

nothing mentioned in the plaint itself that the plaintiff is not in

possession. On the contrary, he had stated that he is in joint

possession and it was observed by the Apex Court that merely

because the rentals in respect of the said suit property was being

received by one of the co-owners it does not mean that the

plaintiffs has been excluded from the possession.

7. On the contrary, in the case in hand the averments made by the

plaintiffs in para 8 of the plaint are that he is not in possession

and that the rent in respect of the first floor of the suit premises is

being received by the defendant no. 1 though the plaintiff can

recover the possession and rent from the tenant as a co-owner. If

these are the averments then certainly, this clearly shows that the

plaintiff admittedly of his own saying is not in possession and he is

liable to pay ad valorem court fees with regard to the share which

comes into his hand. There is no reason, much less any

justification for recalling the order dated 29.1.2009 against the

plaintiffs. In addition to this, the plaintiffs have curiously

mentioned recalling of order dated 17.02.2009 while as the main

order by virtue of which the plaintiff was asked to pay the ad

valorem court fees is dated 28.11.2008 regarding which there is no

reference at all. Apart from this the very conduct of the plaintiff

also goes against him from recalling the said order dated

29.01.2008 because after the learned Judge observed that the

plaintiff is liable to payment of ad valorem court fees the learned

counsel for the plaintiff had taken time twice to do the needful.

Thus he had accepted that he would pay the ad valorem court fees.

The question that the plaintiff is liable to pay court fees in view of

the averment made by him that he is not in possession supported

by the judgment in Chief Inspector of Stamps Vs. Indu prabha

Vachaspati (Smt.) & Ors. (1998) 9 SCC 157.

8. Similarly, two of the judgments of our own High Court have also

expressed similar views that if a party is not in a possession then

he is liable to pay ad valorem court fees. These two judgments are

Smt. Rani Devi Vs. Ashok Kumar Nagi & Anr. 76 (1998) DLT

page 279 and Smt. Prakash Wati Vs. Smt. Dayawanti & Anr.

AIR 1991 DELHI 48

9. For the reasons mentioned above, I am of the view that the

application by the plaintiff is totally misconceived, and therefore,

the same is dismissed. The suit not having been properly valued

for the purpose of court fees and jurisdiction, the plaintiff in terms

of Order VII Rule 11 sub clause (c) and (b) is given one final

opportunity to value the suit properly for the purpose of court fees

and jurisdiction and pay appropriate court fees on his share.

10. Let the needful be done within a period of four weeks. In the event

of the ad valorem court fees is not paid, the suit shall be

peremptorily treated as rejected under Order VII Rule 11 of the

Code of Civil Procedure.

11. List on 01.11.2010 for further proceedings.

V.K. SHALI, J.

SEPTEMBER 14TH , 2010 KP