Delhi High Court

Neelam Batra vs Rakesh Bhatla on 23 January, 2014

Author: V.K.Shali

*           HIGH COURT OF DELHI AT NEW DELHI

+                       C.S. (OS) No.3291/2011

                                             Decided on : 23.01.2014

    NEELAM BATRA                                       ..... Plaintiff

               Through:        Mr. Arun Khosla &
                               Mr. Shreeanka Kakkar, Advocates.
                      versus

    RAKESH BHATLA                                      ..... Defendant

               Through:        Mr. Y.P. Narula, Senior Advocate with
                               Mr. Aniruddha Choudhury, Advocate.
    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

    V.K. SHALI, J. (ORAL)

IA No.4036/2012 (u/Order 7 Rule 11 r/w Section 151 CPC)

1. The question involved in the instant matter is as to whether

the suit is liable to be rejected on account of deficient court

fees having been paid under Order 7 Rule 11 (b) CPC.

2. Briefly stated, the facts of the case are that the

plaintiff/Ms.Neelam Batra has filed the present suit for

declaration and partition against her brother in respect of a

single story residential house constructed on a plot of land

bearing No.D-1017, New Friends Colony, New Delhi, admeasuring 500 square yards. In the plaint, the averment

which pertain to question of payment of court fees are as that

the plaintiff, after marriage with one Mr.Pradeep Batra, set

up permanent residence at 415, 18th Street, Los Angeles,

90402 and stayed with her mother and brother at the suit

property 2-3 times in the year that she visited India. It is

alleged that the mother of the plaintiff was not treated well

by the her son (defendant herein) and his wife as a

consequence of which she had been sending her letters and

narrating her woes and misery to the plaintiff while she was

in USA. This was also narrated to her on telephone as and

when her mother would speak to the plaintiff. The mother

unfortunately died on 20.01.2011 leaving behind the suit

property to the plaintiff. As per the Will dated 01.11.2008,

the mother had left her share to the plaintiff. It has been

alleged by her that her mother hand written this Will in her

own handwriting in mid-December, 2008 in the presence of

two witnesses. It is alleged by the plaintiff that on the basis

of the Will, the plaintiff is to get ½ share while as out of the

other ½ share which was owned by the father of the parties, she is to get another ½ share of the same which would make

her share to be 2/3rd on the bequest of the mother. It is

alleged that she had represented to the defendant, her

brother, for partition of the suit property so that it could be

beneficially exploited by building four storeys, to which the

defendant had shown resistance and contended that he would

live in the property all by himself.

3. In para 13 of the plaint, it has been alleged as under:

"13. That on her recent visit to India on 11.12.2011, the plaintiff and her husband along with common friends have once again sought to reason with the defendant but to no avail in the face of his intractable defiance and dangerous declaration made on the evening of 19.12.2011 that, exasperated by the plaintiff's repeated call for partition, he is in the process of disposing of the SUIT PROPERTY (despite the want of title) and the plaintiff may thereafter recover her share from the prospective hoodlums who deal in such properties.

It is submitted that the defendant is in dire straits financially and has never refurbished the SUIT PROPERTY that is in a state of disrepair sticking out as a sore thumb in a posh South Delhi Colony. It is feared therefore that an escapist defendant may very well fall prey to the builder mafia, even on the look out of taking possession of disputed properties at distressed rates.

It is further submitted that it is reliably learnt that the defendant has not paid the property tax for the SUIT PROPERTY for over 5 years and refuses to part with the requisite documents in order to enable the plaintiff to do the needful."

4. In para 15 of the plaint regarding cause of action, the

plaintiff has averred as under:

"15. That the cause of action accrued to the plaintiff when the late Dr.Prakash Chand Bhatla died on 14.02.2001. The cause of action further arose when Mrs.Rani Bhatla died on 20.01.2011 leaving behind her Will dated 01.11.2008 bequeathing her share in the SUIT PROPERTY to the plaintiff. The cause of action further arose on countless occasions when the plaintiff sought the partition of the SUIT PROPERTY and the defendant defiantly resisted. The cause of action is continuing and subsisting."

5. In para 17 of the plaint, the plaintiff has valued the suit

property at more than Rs.15 crores so far as the pecuniary

valuation is concerned and she has sought a declaration that

she is the owner of 2/3rd share of the suit property and further

that the suit property be partitioned and she be given her

share in the property.

6. The plaintiff has paid the fixed court fees of Rs.19.50 on the

entire suit. The question which arises for consideration is as

in none of the averments made by the plaintiff, she has

averred that she is in joint possession or constructive

possession or even that she is in part possession of any part

of the premises, the question arose as to whether she could

file the suit for partition by simply paying the fixed court

fees of Rs.19.50 or not.

7. The contention of the learned counsel for the plaintiff was

that the law regarding the payment of court fees in the suits

for partition is very well settled and until and unless the

defendant avers the ouster of the plaintiff from the suit

property, the plaintiff is under an obligation to pay the fixed

court fees. In this regard, the learned counsel for the

plaintiff has referred to the Division Bench judgment of this

court Saroj Salkan v.Capt.Sanjeev Singh & Ors.; 155 (2008)

Delhi Law Times 300 and Anil Kumar Bansal {Col. (retd.)}

and Anr. Vs. R.K.Bansal & Ors.; 198 (2013) Delhi Law

Times 723.

8. As against this, the learned senior counsel for the defendant

contended that the plaintiff has to pay the ad valorem court

fees. In this regard, it was contended by him that in none of

the paras of the plaint, the plaintiff has stated that she is in

possession of any part of the suit property. It has also been

stated that she is not even claiming to be in joint possession

of the suit property. All that the plaintiff has stated in the

plaint is that as and when she visited in India 2-3 times when

her mother was alive, she would stay in the suit property

along with his mother who incidentally was staying with the

defendant in the suit property. In the light of these

averments, it has been contended by the learned senior

counsel that the plaintiff has to pay the ad valorem court

fees. He has drawn the attention of this court to the

judgment of this court in Sonu Jain v. Rohit Garg & Ors. 128

(2006) Delhi Law Times 633 wherein it has been observed

in para 18 as under:

"18. In the present case the plaint of the plaintiff clearly shows that plaintiff is neither in possession nor in control or management of the property, even jointly. The right of the plaintiff in regard to possession or management is apparently an admitted fact. Paragraph 25 of the plaint does not further the case of the plaintiff. The plaintiff therefore could not have valued the suit in regard to the relief of partition, for the purposes of jurisdiction of Rs.100 crores while valuing the same for the purposes of court fee at a fixed rate of paying only Rs.20/- in terms of Article 17 in Schedule II of the Court Fees Act. In these circumstances of the case and the plaintiff being not in possession, symbolic or otherwise, and having no role in the management of the said properties, the plaintiff would be required to pay ad valorem court fee at Rs.100 crores, the valuation stated for the purposes of jurisdiction. The arguments raised on behalf of the plaintiff violates the known principles governing this aspect and the plaintiff is obliged to pay the court fee, ad valorem, in accordance with law."

9. I have carefully considered the submissions made by the

learned counsel for the parties. I have also gone through the

judgments.

10.There is no dispute about the fact that in a suit for partition,

the fixed court fees is to be paid provided the plaintiff from

the averments of the plaintiff specifically states that he is in

possession of part of the suit property, be that constructive or

physical, or even joint possession, but this averment has to

be specific in the plaint. In the instant case, the plaintiff has not averred anywhere in the entire plaint that she in joint or

constructive or physical possession of any part of the suit

property. She has even not alleged that she is in control or

management of the suit property. In the absence of any such

averment, the consideration of question that there has to be

an allegation of ouster or the consideration of the said

question does not arise. Therefore, in my view, the ad

valorem court fees has to be paid by the plaintiff on her

share that is 2/3rd. The judgments relied upon by the learned

counsel for the plaintiff do not in any way help the plaintiff

for the simple reason that the facts of these cases were totally

different than the facts of the case in hand. The averments

made in Saroj Salkan's case (supra) were as under:

"3. The appellant had valued the suit for the purposes of jurisdiction for relief of partition at about Rs. 20 crores in para 48 of the plaint which is reproduced hereinbelow:

48. That the value of the suit for purpose of jurisdiction for the relief of partition is above 20 crores. The plaintiff is in possession of an undivided share in their suit properties and has been receiving cash compensation as her share. She is in constructive possession of the properties. The value of the plaintiff's share cannot be computed in terms of money since the share is to be ascertained as to whether it will be as co-parcener to the extent of - in General Budh Singh HUF or whether it will be 1/3rd in the half share of General Budh Singh. Thus a fixed fee under Schedule II Article 7(ii) of Rs. 20/- is being affixed. The plaintiff undertakes to pay the Court fee as and when her share is computed."

(emphasis supplied)

11. In para 13, it was observed as under:

13. It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the co- owner of the property sought to be partitioned, fixed court fees would be payable under Article 17(vi) of Schedule II of the Court Fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of co- owners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad- valorem court fees on the market value of this share as provided under Section 7(iv)(b) of the Court Fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession."

12. In Nisheet Bhalla and Ors. V. Malind Raj Bhalla & Ors.;

AIR 1997 Delhi 60, the learned single Judge in para Nos.9 &

10 had observed as under:

9. Following principles can be culled out from the aforesaid judgment : (a) in order to decide the question of Court-fee, averments made in the plaint are to be seen and decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits; (b) the general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved; and (c) to continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. It is also not necessary that he should be getting a share or some income from the property so long as his right to a share and his nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession.

10. Relying upon this judgment, this Court in Master Kunal, AIR 2003 Delhi 441 (supra) held that proper Court-fee had been paid. That was also a suit for partition and rendition of accounts and plaintiff has pleaded joint ownership and joint possession."

13. Ultimately, in para 15 it has been observed that if in no

uncertain and unambiguous terms, the plaintiffs admit their ouster or exclusion from the suit property, the plaintiffs are

liable to pay ad valorem court fees.

14. Now, based on the aforesaid principles of law, the plaintiff,

in the instant case, from the averments has clearly depicted

that she is not in possession of even a part of the property,

physically or constructively. Further, the same is reinforced

by the plaintiff unwittingly by saying that she is a permanent

resident of Los Angeles and used to visit India 2-3 times in a

year when her mother was alive. That was also way back in

2005. Admittedly, the mother of the plaintiff died in 2011.

It is not her case that she has visited India after 2008 at any

point of time or even in 2011 at the time of death of her

mother and that she was living or was in possession,

constructive or physical, in respect of the suit property.