Chanderpal Singh vs Surjeet Kaur & Ors.
2012 Latest Caselaw 6910 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM (M) 750/2010

                                         Date of Decision: 04.12.2012

CHANDERPAL SINGH                                 ...... Petitioner
                Through:              Ms. Nandni Sahni, Advocate.

                                Versus

SURJEET KAUR & ORS.                             ...... Respondent
                 Through:             Mr. Rajiv Bansal, Advocate for
                                      DDA.
                                      Mr.Gagan       Preet     Singh,
                                      Advocate for the respondent No.
                                      2.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution seeks assailing the order dated 5.4.2010 of learned Addl. District Judge (ADJ), Delhi, whereby the application filed by the petitioner under Order 7 Rule 11(b) and (c) read with Section 151 CPC, was dismissed.

2. The respondent Surjeet Kaur had filed a suit for declaration, cancellation and mandatory injunction against the petitioner and defendants namely Ankur Mittal and Delhi Development Authority (DDA). The case of the respondent was that her husband purchased the house bearing No. 918, Pocket 3, Sector 19, Pappan Kalan,

Dwarka, New Delhi from its original allottee Mr.Ankur Mittal on 10.07.2007. On 14.10.2008, she came to know that the petitioner herein, on the basis of forged signatures of original allottee Mr. Mittal, got executed conveyance deed of the suit property in his (petitioner) favour from the DDA. She also averred that a complaint in this regard against the petitioner was lodged with the police vide FIR No.818/2008, under Sections 420/468/471/511/120B IPC, P.S. Dwarka. She sought the under-mentioned reliefs in the suit:

"(a) Pass a decree of declaration in favour of the plaintiff and against the defendant thereby declare the document i.e. general power of attorney allegedly notarized in the month of September, 2000 and conveyance deed executed on the basis of forged and fabricated documents in favour of the defendant no. 1 as null and void and ab initio.

(b) Pass a decree of permanent injunction restraining the defendant no. 1 and 4, their agents, servants and associates may be not restrained of dispossessing the plaintiff from the suit property i.e. DDA Flat No. 918,situated at Pocket -3, Sector 19, Pappan Kalan, Dwarka, New Delhi and from entering within and around 100 mtrs. of the suit property and from taking possession of the suit property forcibly and creating nuisance and interference with the exclusive possession of the plaintiff in and around the suit property and selling alienating disposing off, transferring, mortgaging etc. the suit property on the basis of the forged and fabricated documents.

(c) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendant no. 1 and 4 thereby directing the defendants no. 3 to cancel the

conveyance deed executed on the basis of forged and fabricated documents in favour of defendant no. 1".

3. The case that was set up by the petitioner was that Mr. Mittal had sold the suit premises to him in September, 2000. He denied that the signatures of Mr. Mittal were forged, as alleged.

4. The suit was initially filed before the court of Senior Civil Judge. Since the value of the suit for the purpose of court fee and jurisdiction being more than his jurisdiction, the Sr. Civil Judge placed the matter before the District Judge for transfer of the same to the court of appropriate jurisdiction. That is how the case came to the court of learned ADJ.

5. The petitioner herein filed an application under Order 7 Rule 11

(b) (c) read with Section 151 CPC, alleging therein that since the respondent/plaintiff had failed to make good the deficiency in the court fee despite repeated orders, and since in view of the amendment in Section 148 CPC, the court could not extend the period of payment of court fee beyond 30 days, the plaint was liable to be rejected. This application came to be dismissed vide impugned order, which is under challenge in the instant petition.

6. I have heard learned counsel for the petitioner and for the respondent/plaintiff and DDA. The submissions which have been made by the learned counsel before me are the same which were made before the ADJ, that in view of Section 148 CPC, the court could not extend the period for payment of court fee beyond 30 days from the date of order. It was submitted that vide orders dated 12.08.2009, 27.08.2009 and 22.09.2009, the respondent/plaintiff was called upon to pay the deficient court fees, but the plaintiff failed to do the same. It was also submitted that in any case, the value of the suit premises, as per conveyance deed was Rs. 6,40,900/- and not Rs. 3 lakhs, as was declared by the respondent/plaintiff. It was thus submitted that the suit ought to have been valued under Clause '(e)' and not under Clause '(c)' of Section 7 (iv) of the Court Fees Act. It was also the grievance of the petitioner that the learned ADJ erred in suo moto directing the respondent/plaintiff to do the amendments in the plaint. In this regard reliance was placed on the decision of this court in Jagdish Chander & Anr. Vs. Bakshi Chatarpal Singh & Ors., 11 (1975) DLT 97.

7. On the other hand, learned counsel for the respondent/plaintiff controverted all the submissions of the learned counsel for the petitioner and submitted that the court was within its power to extend the time and condone the delay in filing the court fee, which has occasioned due to mediation proceedings. With regard to the plea regarding valuation, it was submitted that the suit was properly valued

for the purpose of declaration, cancellation and mandatory injunction inasmuch the plaintiff wanted to make out a case that the documents, on the basis of which the suit premises was got transferred by the petitioner, were forged. Since she was not a signatory to the GPA, she, therefore, wanted a simple declaration that the conveyance deed based on forged and fraudulent GPA, be declared null and void and cancelled. With regard to the plea that the court had no power to suo moto call upon the party to do the necessary amendments, it was the submission of the respondent that what was directed to be done was not the amendment in the pleading, but it was for removing the defects of the pleadings.

8. Before adverting to the submissions of the learned counsel for the parties, I may reiterate that power of this court under Article 227 of the Constitution is limited, being supervisory in nature and not like an appellate court. It is settled proposition of law that if the discretion exercised by the courts below is not arbitrary, capricious or perverse and the findings are not contrary to the material available on record, this court will refrain from interfering with the same.

9. The contentions of the learned counsel for the petitioner, are highly misconceived. The learned counsel has unnecessarily laboured to contend as regard to the applicability of provisions of Section 148 CPC, which provides discretion to the court to extend the time for

doing any act as directed, from time to time, but not exceeding 30 days in total. As is noted above, it was the application under Order 7 Rule 11 CPC, which was filed by the petitioner for rejection of the plaint, and was under consideration before the court. Proviso to Rule 11 empowers the court to extend the time fixed for the correction of the valuation or supply of requisite stamp papers, for reasons to be recorded. Proviso widely empowers the court to extend the time, if it was satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.

10. Here is a case which was initially filed before the Sr. Civil Judge and, which was transferred to the court of ADJ on account of lack of jurisdiction. No doubt, orders were passed for proper valuation of the suit for the purpose of court fee and jurisdiction, but admittedly, the matter was referred by the court for mediation on 21.10.2009. The plaintiff had already purchased the court fee, but did not place it on record because of the matter being referred to the mediation. When the mediation failed on 18.1.2010, and the matter was placed before court on 15.2.2010, the plaintiff could not have filed the court fee before 15.2.2010. He had, however, filed an application on 27.1.2010 and immediately, filed the court fee on 15.2.2010. It is noteworthy that even on 15.2.2010, the parties again stated there to be likelihood of

settlement and then, the matter was adjourned to 15.3.2010. In view of all this, it was rightly recorded by the ADJ that due to intervention of the mediation proceedings, the plaintiff, who had already purchased the court fee on 21.10.2009, could not file the same.

11. Having seen that the learned ADJ was within his power under proviso to Rule 11 of order 7 to extend the time and, he being satisfied and so allowed, I do not see any infirmity or perversity in this discretion that was exercised by the ADJ.

12. When there was a specific provision as contained in the proviso to Rule 11 relating to correction of valuation or filing of requisite stamp papers, as also the extension of period for the same, the provisions contained in Section 148 CPC, could not be pressed into service. In any case, it cannot be forgotten that the civil court being a court of equity, justice and good conscience, is also vested with inherent powers under Section 151 CPC to avoid miscarriage of justice. It is always open to the civil court to exercise inherent powers provided such exercise is not totally derogatory to the main provisions of the Act and the Rules made thereunder.

13. With regard to the plea that the suit is not properly valued for the purpose of court fee and jurisdiction, it is noted that before the ADJ, both the parties had agreed that the value of the suit property and

documents executed is more than Rs. 3 lakhs. When the case was transferred to the court of ADJ, the plaintiff was under an obligation to amend the plaint with regard to the valuation to bring it in consonance with the submissions of the parties. The plaintiff filed the suit for declaration and consequential reliefs of injunction, and has paid the court fee of Rs. 10,150/- on 15.2.2010. It was not the case wherein the plaintiff was seeking cancellation of a document signed by her. Thus, no separate court fee was required for the relief of cancellation of conveyance deed as she being not a party to the same, she was not bound to get it set aside or cancel and a mere relief of declaration of the documents being null and void, was enough. In any case, she had filed the court fee of Rs. 10,500/-, which was sufficient for both the valuation i.e. Rs. 3 lakhs and Rs. 6,40,900/-. This was the ratio of various judicial pronouncements and the learned ADJ has rightly relied upon the case of Ram Bharose Lal Vs. Binda Devi, 1956, Patna 203 propounding such a legal proposition. Though both the parties had agreed the valuation of the suit property and documents being more than Rs. 3 lakhs, but, there being a conveyance deed for a sum of Rs. 6,40,900/-, the payment of court fee of Rs. 10,500/- was sufficient for valuing the suit at Rs. 6,40,900/-.

14. With regard to the plea that the court could not have called upon the plaintiff to do the requisite amendments in the plaint, it is enough to note that when the case was transferred to the court of ADJ on the ground of suit being not properly valued for the purpose of court fee

and jurisdiction, necessary changes were required to be done in the plaint. In the decision of Jagdish Chander & Anr. (supra) of our own High Court, which was relied upon by the petitioner, also it was held that under Section 153 CPC, the court is suo moto empowered to seek amendment to any defect or error in the plaint. There is no dispute that the court could not have suo moto asked the parties to amend their pleadings so far as the grounds of attack and the ground of defences are concerned, but, the court was within its powers to invite the attention of the parties to the defects of the pleadings, which, in this case, was amendment in the corresponding para in the plaint regarding valuation of the suit, so that they could be remedied and real issue between the parties be tried. On this count also, I do not see any merit in the submission of the learned counsel for the petitioner.

15. In view of my above discussion, I do not see any infirmity or illegality in the impugned order. The petition being without any merit is hereby dismissed.

M.L. MEHTA, J.

DECEMBER 04, 2012 akb