Anu vs Suresh Verma & Ors.
2011 Latest Caselaw 3270 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 12.07.2011

+           CS(OS) No.2546/2010

ANU                                     .....Plaintiff

                           - versus -

SURESH VERMA & ORS.                     .....Defendants


Advocates who appeared in this case:

For the Plaintiff:           Mr. Ravi D. Sharma, Advocate
For the Defendant:           Mr. Dinesh Rohilla, Adv. for D-1
                             & 2.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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 Digest?


V.K. JAIN, J. (ORAL)

IA 4888/2011 (on b/o. defendant under Order 8 Rule 1 CPC for condonation of delay in filing the written statement)

1. This is an application by defendant No.2 for

condonation of delay in filing written statement. The

written statement has been filed after thirty days though

much before expiry of ninety days. As agreed by the learned

counsel for the plaintiff, the delay in filing written statement

is condoned.

2. The application stands disposed of.

IA 10693/2011 (O.7 R.11 CPC filed by D-1 & D-2)

1. This application has been filed by defendants No.1

& 2 for rejection of plaint.

2. This is a suit for partition. The plaintiff and

defendants are the children of late Shri Om Prakash Verma

and Smt. Chandra Wati. The case of the plaintiff is that

the properties detailed in Annexure-P1 were owned by her

parents and devolved on the parties to the suit, on their

death. It is further alleged that the defendants No.1 & 2

are living in one of the properties, i.e. X-2302,

Raghubarpura, Gandhi Nagar, Delhi, and portions of the

suit property as well as the other properties have been

rented out by defendants No.1 & 2 who are realizing rent of

about Rs.2.5 lacs per month. It is also alleged that

defendants No.1 & 2 have purchased various other

properties from the rented income of the joint properties

and one of such properties is occupied by the plaintiff, who

is deemed to be in possession of the suit properties. This is

also the grievance of the plaintiff that the defendants No.1 &

2 have refused to allow her to enter the property and get a

site plan prepared.

3. The contention of the learned counsel for the

applicants/defendants No.1 & 2 is that since the plaintiff is

not in possession of the properties alleged to be joint

properties of the parties, the suit is not properly valued for

the purpose of court fee and jurisdiction and, therefore, the

plaint is liable to be rejected.

4. It is settled proposition of law that while

considering application for rejection of plaint, the Court has

to consider only the averments made in the plaint and the

documents filed by the plaintiff. Defence taken by the

defendant or the documents filed by him cannot be

considered while deciding such an application. A Division

Bench of this Court in Inspiration Clothes & U Vs. Colby

International Ltd., 88 (2000) DLT 769, held that the power

to reject the plaint can be exercised only if the Court comes

to the conclusion that even if all the allegations are taken to

be proved, the plaintiff would not be entitled to any relief

whatsoever. It was also observed that where the plaint is

based on a document, the Court will be entitled to consider

the said document also to ascertain if a cause of action is

disclosed in the plaint or not though the validity of the

document cannot be considered at this stage. In Avtar

Singh Narula & Anr. Vs. Dharambir Sahni & Anr. 150

(2008) DLT 760 (DB), this Court reiterated that the power to

reject the plaint has to be exercised sparingly and

cautiously though it does have the power to reject the plaint

in a proper case.

In Popat and Kotecha Property v. State Bank of

India Staff Assn. 2005 7 SCC 510, Supreme Court noted

that the real object of Order 7 Rule 11 of the Code of Civil

Procedure is to keep irresponsible law suits out of the

Courts and discard bogus and irresponsible litigation. It was

further held that dispute questions cannot be decided at the

time of considering an application filed under Order 7 Rule

11 of CPC.

5. Section 8 of the Suits Valuation Act, 1887 provides

that where other than those referred to in the Court-fees

Act, 1870 Section 7, paragraph v, vi and ix, and paragraph

x, clause (d), Court-fees are payable ad valorem under the

Court-fees Act, 1870, the value as determinable for the

computation of court-fees and the value for purposes of

jurisdiction shall be the same. Section 9 of the above-

referred Act provides that when the subject-matter of suits

of any class, other than suits mentioned in the Court-fees

Act, 1870, Section 7, paragraph v and vi, and paragraph x,

clause (d) is such that in the opinion of the High Court it

does not admit of being satisfactorily valued, the High Court

may with the previous sanction of the State Government,

direct that suits of that class shall, for the purposes of the

Court-fees Act, 1870, and of this Act and any other

enactment for the time being in force, be treated as if their

subject-matter were of such value as the High Court thinks

fit to specify in this behalf.

In exercise of powers conferred by Section 9 of

Suits Valuation Act, Punjab High Court made rules which

are applicable to Delhi.

Suits for partition of property--

Court-fee--(a) as determined by the Court-fees Act, 1870

Value--(b) For the purpose of the Suit Valuation Act, 1887,

and the Punjab Court Act, 1918 the value of the whole of

the property as determined by Sections 3, 8 and 9 of the

Suits Valuation Act, 1887.

It would thus be seen that in view of the rules

framed by Punjab High Court under Section 9 of Suits

Valuation Act, which admittedly are applicable to Delhi,

there can be separate valuations for the purpose of Court

fee and jurisdiction. The valuation for the purpose of

jurisdiction has to be the value of the whole of the

properties subject matter of partition, whereas valuation for

the purpose of Court fee would be such as is provided by

the Court-fees Act.

Section 7(iv)(b) of Court Fees Act, provides that in a

suit to enforce the right to share in any property on the

ground that it is a joint family property, the amount of fee

payable under Court-fee Act, shall be computed according

to the amount at which the relief sought is valued in the

plaint or memorandum of appeal. It further provides that in

all such suits the plaintiff shall state the amount at which

he values the relief sought by him. Article 17(vi) of Schedule

II of Court-fees Act provides for payment of a fixed Court fee

in a suit where it is not possible to estimate at a money

value the subject matter in dispute, and which is not

otherwise provided for by this Act.

6. After examining the decision of Supreme Court in

S.Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm.

Ramanathan Chettiar AIR 1958 SC 245, Neelavathi &

Ors. v. N. Natarajan & Ors. AIR 1980 SC 691, Jagannath

Amin v. Seetharama (dead) by LRs & Ors. 2007(1) SCC

674 and Commercial Aviation and Travel Co. v. Vimla

Panna Lal AIR 1988 SC 1636 this Court in CS(OS) No.

2642/2008 and IA No. 10367/2010 decided on 4th March,

2011 summarized the legal position in this regard as under:

(ii) If the plaintiff claims to be in joint possession of

the suit property, he has to pay a fixed Court fee in

terms of Article 17(vi) of Court-fees Act.

(iii) If the averments made in the plaint show that

the plaintiff has been completely ousted from

possession and is not in possession of any part of

the suit property, he is required to claim possession

and also pay ad valorem Court fee on the market

value of his share in the suit property.

7. In my view, in order to constitute joint possession,

it is not necessary that the plaintiff should claim to be in

joint possession of each of the properties in respect of which

partition is sought by him/her. If she claims to be in joint

possession of even one of the properties either wholly or

partly, that would be sufficient to bring the case within the

ambit of Article 7(iv) of Court-fees Act, because what is

relevant is joint possession of the estate in respect of which

partition is sought. The plaintiff is seeking partition not with

respect to any one property, but with respect to all the

properties which were owned by her late parents. If partition

is sought in respect of more than one property and one of

the co-owners possesses one property or a part of it and the

other co-owners possess the remaining properties, all of

them will be deemed to be in joint possession of the

properties subject matter of partition. In this regard, the

following observations made by this Court in Sudershan

Kumar Seth vs. Pawan Kumar Seth & Ors. 124 (2005) DLT

305:

"It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the court fees shall be payable under Article 17 (6) of Schedule II of the Court fees Act i.e. fixed court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in

possession of any part of the properties then the plaintiff has to pay Court fees under section 7(iv)(b) of the Court fees Act i.e. on the value of plaintiff's share."

8. It does appear from para 8 of the plaint that the

plaintiff has been ousted from possession of the property

which according to her counsel refers to only property No.

X-2302, Raghubarpura, Gandhi Nagar, Delhi. But, this is

also the case of the plaintiff that one of the properties

purchased from joint funds of the parties is occupied by

him. That property is alleged to be property No. J-6(Ground

Floor), Jyoti Nagar(West), Delhi.

9. Therefore, if the property bearing No. J-6(Ground

Floor), Jyoti Nagar(West), Delhi was purchased from joint

income as alleged in the plaint and the plaintiff is in

possession of the aforesaid property, he will be deemed to be

in joint possession along with other defendants in respect of

all the properties alleged to be jointly owned by the parties

and he need not claim relief of possession as independent

relief and pay court fee on the market value of his share in

the jointly owned properties.

10. The learned counsel for the contesting defendants

state that in fact the sale deed of Jyoti Nagar property is in

the name of wife of defendant No.1 and a stranger namely

Smt. Sushila. Since, while considering the application

under Order 7 Rule 11 of CPC, the Court cannot go into the

defence taken by the defendant, it is not open to the Court

to go into the question of title of the aforesaid property at

this stage.

11. For the reasons given in the preceding paragraphs,

no ground for rejection in the plaint is made out. However,

the plaintiff is directed to give value of all the joint

properties for the purpose of Suit Valuation Act.

12. The plaintiff is permitted to amend para 12 of the

plaint for the purpose of giving appropriate valuation under

Suit Valuation Act. The amended plaint incorporating

valuation for the purpose of Suit Valuation Act will be filed

within two weeks.

The application stands disposed of.

CS(OS) No. 2546/2010 & IA No. 17049/2010 (u/O 39 R 1&2 CPC)

seek some time to file documents. The same be filed within

two weeks. List this case before the Joint Registrar on 2 nd

September, 2011 for admission/denial and before the Court

on 5th January, 2012 for disposal of IA. In the meantime

defendants No. 1 & 2 will maintain complete accounts of the

rent being realized by them from the tenants of the suit

properties and shall file those accounts in the Court by next

date of hearing. They will also keep aside 1/6th of the rent

realized by them for the plaintiff and 1/6 th of the rent for

defendants No. 3 to 5.

                                             V.K. JAIN,J
JULY         12, 2011
Sn/vn