Bharat Bhushan Sharma & Anr vs Inder Bir Singh Uppal
2013 Latest Caselaw 5882 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Order delivered on: December 19, 2013

+                    C.R.P. 126/2012 & CM No.17658/2012

       BHARAT BHUSHAN SHARMA & ANR             ..... Petitioners
                   Through Mr.Ashok Bhalla, Adv.

                          versus

       INDER BIR SINGH UPPAL            ..... Respondent
                     Through None.
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of the present petition under Section 115 CPC, the petitioners have assailed the order dated 3rd September, 2012 passed by the learned Trial Court in a suit for possession and permanent injunction filed by the respondent against the petitioners.

2. The respondent contended in the said suit that the respondent had purchased the suit property from the petitioner No.1 and had also taken the physical possession thereof. However, owing to physical disability, the respondent could not visit the suit property, which was lying vacant, and had requested the petitioners to look after the suit property, as the parties had cordial relation with each other and the petitioners lived nearby the suit property. However, on one day when the respondent was out of town, his wife received a summon from the court in a suit for declaration in respect of the suit property filed by petitioner no.1. Consequently, the respondent filed the suit for possession and permanent injunction against the petitioners.

3. Vide the impugned order the learned Trial Court decided a preliminary issue framed in the matter i.e. "whether the suit has been properly valued for the purpose of jurisdiction of this court?"

4. It was the case of the respondent, he was the owner of the suit property which he had purchased from petitioner no.1 through a registered sale deed on 28th September, 2006 for the total consideration of ` 1,60,000/- and so valued the suit accordingly at ` 1,60,000/-

5. While as it was the case of the petitioners that though the petitioners had executed the said sale deed in favour of the respondent, it was only done at the gun-point of the respondent and that the value of the suit property was around ` 4 crore.

6. Considering the fact there was a registered sale deed in favour of the respondent for a total sale consideration of ` 1,60,000/- and that circle rates are applied to curb the practice of evasion of stamp duty and the sale deed with respect to a property is not registered if the property has been valued below the circle rate, the learned Trial Court did not deem it proper to decide the authenticity of the sale deed at that stage. It was also observed that the allegation of the petitioners that the said sale deed was signed under coercion was a matter of trial.

7. The learned Trial Court accordingly decided the said issue in favour of the respondent and against the petitioners, aggrieved whereof the petitioners have filed the present petition.

8. No doubt under the provision of Section 7(v)(e) of the Court Fees Act, 1870 when a suit for possession of constructed immovable property is filed, the court fee has to be affixed on the basis of market value. One of modes of

deciding the question of market value is to pay the court fees as per circle rate.

9. In the present case, the petitioner who is the defendant in trial court has admitted before the court that he has executed the sale deed of the property in question in favour of respondent. He has not denied his signature. He has not specifically pleaded that he has not received consideration mentioned in the sale deed. He is now challenging the sale deed by stating that it is executed under gun point by the respondent. As a matter of fact, he is challenging the validity of the sale deed registered with consent at that time. The allegations in the plaint are that the possession taken by him in good faith. The respondent in order to take back his possession has filed the suit for possession and injunction against the petitioner who has now raised the objection that the property is worth about four crores and the respondent is bound to pay the court fee at the current market value.

10. The learned trial court in the order has ruled that the circle rates have to be applied if there is an evasion of stamp duty and the sale deed with respect to the property is not registered if the same has been valued below the circle rate. But at the same time, it is held that court fees is to be paid as per consideration mentioned in the sale deed and if any contrary is done then it would go against the respondent (plaintiff in the suit proceedings). Lastly at the same time, learned Trail Court decided the issue in favour of the respondent and against the petitioner.

11. Once it is held that the circle rates are to be applied in order to curb the practice of evasion of stamp duty, the impugned order with the finding arrived ought not to have been passed by deciding the issue in the matter.

12. Considering the overall facts and circumstances of the present case, the impugned order is set-aside. The objection raised by the petitioners would be re-considered in view of the discussions in the matter after hearing both parties particularly by applying the provision of Section 7 (v)(e) of the Court Fees Act, 1870.

13. No costs.

(MANMOHAN SINGH) JUDGE DECEMBER 19, 2013