Shri Jaipal Chandel & Others vs Sh. Shri Krishan & Others
2011 Latest Caselaw 3885 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 10.08.2011

+             CM(M) No. 928/2011 & CM No. 14917-18/2011

SHRI JAIPAL CHANDEL & OTHERS                     ........... Petitioners

                         Through:    Mr.M.S.Rohilla, Advocate.

                    Versus

SH. SHRI KRISHAN & OTHERS                        ..........Respondents
                   Through:          Mr.Jatan Singh, Advocate for
                                     R-1 to R-4.
                                     Counsel for MCD.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. The petitioner is aggrieved by the order dated 16.07.2011

whereby he has been directed to pay ad-valorem court fee on the

plaint filed by him.

2. Record shows that the present suit is a suit for declaration,

permanent and mandatory injunction. The averments in the plaint

are relevant. The contention of the plaintiff is that there was a

common gali/road measuring 19" in between house of the plaintiff

and the defendants; defendants are strong and influential persons;

they have raised an illegal and unauthorized construction in this

common gali to block the free passage of the local residents

including the plaintiff. Criminal complaints had also been filed. In

para 13 of the plaint it has been averred that a writ petition had

also been filed earlier in time wherein the defence of the

defendants was that they have purchased this suit land.

Contention is that the defendants are encroaching upon the public

land which is not permissible in law. Prayer made in the plaint is

that a declaration be made that the power of attorney, agreement

to sell and receipt dated 08.03.1989 relied upon by the defendants

to substantiate their defence that they have purchased this suit

property be declared null and void; decree of perpetual injunction

be passed against the defendants restraining them from raising

any unauthorized or illegal construction in the suit land; decree of

mandatory injunction be also passed against the defendants

directing them to demolish the wall which they have wrongly

made in the common gali. These averments in the plaint had been

construed in the impugned order; the impugned order had noted

that the plaintiff not being in possession, by way of the present

suit is actually seeking a relief of possession although it has been

couched as a suit for declaration and mandatory injunction; in this

view of the matter, the fixed court fee filed by the plaintiff had

been disallowed. The impugned order had directed the plaintiff to

make up the deficiency in the Court fee and pay ad-valorem court

fee.

3. On advance notice, counsel for the respondents have put in

appearance. Learned counsel for respondents No. 1 to 3 has

submitted that the impugned order in no manner calls for any

interference; his submission being that the trial Court had

correctly relied upon the judgments to hold that the suit filed by

the plaintiff was a suit actually seeking a relief of possession.

4. Submission of learned counsel for the respondents has no

force. The question as to whether ad-valorem court fee has to be

paid or fixed court fee has to be paid has to be deciphered by

reading the averments made in the plaint; plaint has to be read as

a whole; reliefs as noted supra are that a decree of declaration be

passed that the documents relied upon by the defendants claiming

their title to the common gali/public land be declared null and

void; decree of perpetual injunction be passed against the

defendants restraining them from interfering in this public land/

gali; mandatory injunction be also passed against the defendants

directing them to demolish the wall wrongly made in the gali.

Admittedly the plaintiff is not in possession of the common

passage/gali. His contention in the plaint is that this is a common

passage in between the house of the plaintiff and the defendants

and this passage is common for the user of public persons; it is

public land. The plaintiff has nowhere averred in the plaint and

nor has it been specifically prayed that he seeks possession of the

public land; his contention being that it is public land. The

impugned order recording this finding clearly suffers from an

illegality for which interference is called for.

5. The plaintiff not seeking the relief of possession; nothing

prevented him from filing the suit in the present form by paying a

fixed court fee; his case falls within the ambit of Section 7(iv)(d)

and Article 17 (iii) of Schedule II and of the Court Fee Act which

provides that a fixed Court fee has to be affixed on such a suit.

Impugned order suffers from an infirmity on this count. It is set

aside. Petition is allowed.

Order Dasti.

INDERMEET KAUR, J.

AUGUST 10, 2011 a