Delhi High Court
Maharani Bagh Resident Welfare ... vs Municipal Corp Of Delhi & Ors on 27 March, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:27.03.2012.
+ CM(M) 1191/2009 & CM No. 15058/2009
MAHARANI BAGH RESIDENT
WELFARE ASSOCIATION ..... Petitioner
Through Mr. Atul Nigam, Adv.
versus
MUNICIPAL CORP OF DELHI & ORS ..... Respondents
Through Mr. Ajay Arora, Adv. for MCD.
Mr. Amit Mehra, Adv. for DDA.
Mr. Prakash Chander, Adv. for
R-3 to R-6.
Mr.S.P.Pandey, Adv. for R-7 & 8.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 The order impugned is dated 17.08.2009; the Court had answered
the preliminary issue which was with regard to the valuation and reads
herein as under:-
"Whether the suit has not been properly valued for the purposes of Court fee and
jurisdiction? OPD"
2 The Court had noted that the requisite Court fee has not been
affixed by the plaintiff and had directed him to comply with its
directions to affix the Court fee on all the reliefs claimed by him; the
trial Court was of the view that what the plaintiff was seeking by way of
this plaint was a declaration with consequential reliefs for which ad-
valorem Court fee was required to be affixed.
3 Averments made in the plaint have been perused. Suit was filed
by Maharani Bagh Resident Welfare Association against nine
defendants; contention is that defendants No. 3 to 7 are in possession of
the respective portions of property i.e. Khasra Nos.809/1/1 and 809/1/2
in the revenue estate of Kilokri, tehsil Hauz Khas renumbered as plots
No. 7-B/1, 7-B/2, 7-B/3, 7-B and 7-C. These are admittedly five
properties; contention of the plaintiff being that five defendants i.e.
defendants No. 3 to 7 are proposing to raise illegal and unauthorized
construction therein; the sanctioned plan granted by the MCD
(defendant No. 1) in their favour be directed to the cancelled; they be
restrained from transferring, alienating or parting with possession of this
suit land; they also be injuncted from carrying out any construction in
the aforenoted land; relief of permanent prohibitory injunction as also
the injunction coupled with the prayer of cancellation of the sanctioned
plan accorded by defendant No. 1 in favour of the said defendants has
been made.
4 There is no dispute to the proposition that the averments made in
the plaint alone have to be perused to decide the question of valuation; a
plaint which has been couched in a language which is actually to defeat
the purpose of paying revenue and the prayer made in the plaint
otherwise seeks to hide the real intent of the plaintiff has to be examined
in the aforenoted light to determine the valuation which has to be
accorded.
5 The averments made in the plaint including the averments made
in para 35 coupled with the prayer clause clearly show that what the
plaintiff is seeking is the relief of declaration; declaration being to the
effect that the sanctioned plan granted by the MCD in favour of
defendants No. 3 to 7 be declared null and void; their rights which have
been accorded to them qua this suit property in terms of the sanction
plan be declared as ousted and the said defendants be restrained from
carrying out any construction activity in the aforenoted land or of
creating any third party interest in the said land. The valuation is
contained in para 42 of the plaint; for the relief of prohibitory permanent
injunction, suit has been valued at Rs.5,05,000/- on which a court fee of
Rs.7,275/- has been paid; for the relief of cancellation of the sanction,
the Court fee of Rs.13/- has been affixed; so also for the relief of other
injunctions for which fixed Court fee has been affixed. These averments
show that there are five properties which are involved and owned by
five different sets of the defendants; learned counsel for the defendant
fairly conceded that he is not raising the question of mis-joinder of
parties but since there is more than one relief claimed under Section 17
of the Court Fee Act, the aggregate amount of the fee as per each subject
should be directed to be paid by the plaintiff.
6 The Apex Court in AIR 1973 SC 2384 Shamsher Singh Vs.
Rajinder Prashad & Others had noted that where the relief of injunction
is prayed for but the relief cannot be granted without a declaration, an
astuteness in drafting the plaint should not impede the Court from
looking at the substance of the relief which is really asked for. Section
7(iv)(c) of the Court Fee Act and Section 8 of the Suit Valuation Act
cogently show that the valuation of the suit for the purpose of court fee
must correspond to the valuation for the purpose of jurisdiction. Present
suit is in fact nothing but a suit for declaration with a consequential
relief of injunction for which ad-valorem Court fee was rightly directed
to be paid by the plaintiff.
7 Reliance by learned counsel for the petitioner upon a judgment in
AIR 1955 Mysore 65 H.R. Patel Vs. C.G. Venkatalakshamma & another
is misplaced; facts of this case are distinct; in this case the plaintiff was
asking for a declaration against the defendant who was making certain
illegal constructions; in the instant case, the plaintiff has himself
accorded a legal sanction in favour of the defendant; his grievance is
that this legal sanction accorded by the MCD (defendant No. 1) in
favour of the plaintiff be directed to be set aside; the legal character of
the right of the defendant to construct on this suit land has been
recognized by the plaintiff himself. This judgment is wholly
inapplicable.
8 Impugned order suffers from no infirmity. This petition is an
abuse of the process of the Court; it is dismissed with cost of
Rs.10,000/-. Dasti.
INDERMEET KAUR, J
MARCH 27, 2012
A
