Shri Niren Nagpal vs Shri Nitin M. Nagpal
2014 Latest Caselaw 3326 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         C.R.P.No. 5/2014
%                                              24th July , 2014

SHRI NIREN NAGPAL                                          ......Petitioner
                          Through:       Mr. Ashish Kapur, Advocate.


                          VERSUS

SHRI NITIN M. NAGPAL                                     ...... Respondent
                   Through:              Mr. Virendra Rawat, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.             This revision petition under Section 151 Code of Civil

Procedure, 1908 (CPC) is filed by the defendant/petitioner impugning the

order of the trial court dated 14.10.2013 by which the trial court has

dismissed the application under Order 7 Rule 11 CPC filed by the

defendant/petitioner. In the application under Order 7 Rule 11 CPC, the

defendant-petitioner claimed that the suit was not properly valued for the

purpose of court fee and jurisdiction because as per circle rates, the suit

property was worth more than Rs.41 crores and consequently, the suit which



C.R.P.5/2014                                                                  Page 1 of 5
 is valued at Rs.11,36,400/- for declaration alongwith another valuation of

Rs.130 for injunction is not correct and the plaint is under valued.


2.             The subject suit is a suit between two brothers. As per the

plaint, plaintiff and defendant who are brothers are said to have purchased

six bighas of land i.e 6048 sq. yards by means of a registered sale deed dated

11.3.1983. The case of the respondent/plaintiff was that after constructing a

boundary wall both the brothers partitioned the land in two portions and

constructed two separate residential units which are separately assessed for

house-tax in the name of each of the brothers. Respondent-plaintiff claims

to be an exclusive owner and in possession of his share. The defendant-

petitioner has also constructed his house on which he is being assessed

separately for the purpose of house-tax. The subject suit came to be filed

because defendant-petitioner was creating hurdles in repairing the property

owned by the respondent-plaintiff.


3.             By an earlier order dated 8.2.2012, the trial court had directed

that the respondent-plaintiff must properly value the suit property for the

purpose of court fees and jurisdiction because the relief of declaration cannot

be valued at Rs.200 and court fee of Rs.20 paid inasmuch as, no plausible

reason was given by the respondent/plaintiff as per the trial court for valuing

C.R.P.5/2014                                                                Page 2 of 5
 the relief which is not merely for declaration simplicitor but there is a

consequential relief of injunction.


4.             No doubt, the order dated 8.12.2012 is final, however, I note

that the same proceeds on an incorrect legal basis. Once the respondent-

plaintiff is in exclusive possession of his property which is said to have

come to his share after partition, and both the parties are assessed separately

for their portions in the house tax assessment proceedings, really the relief of

declaration and injunction are independent of each other. If the respondent-

plaintiff was not in possession or respondent-plaintiff needed necessarily to

claim declaration without which he could not have obtained the relief of

injunction, only then the relief of injunction would be consequential to the

relief of declaration. If the relief of injunction can be independently claimed

then the relief of injunction is not consequential to the relief of declaration.

Once the respondent-plaintiff avers in the plaint that he is in actual physical

possession of his half share of the property pursuant to a partition, and that

the respondent-plaintiff has constructed his own residential portion on his

property, and that the petitioner-defendant has constructed his residential

property on his own share, and the factum with respect to two separate

properties on two separate portions is not disputed in the written statement,

C.R.P.5/2014                                                                 Page 3 of 5
 then, it was not even required to direct the respondent-plaintiff to re-value

his suit for the purpose of court fees and jurisdiction inasmuch as reliefs of

declaration and injunction in the facts of this case are independent and can

be claimed independently of the other. Even taking that the earlier order

dated 8.2.2012 as final, yet, once the admitted facts are that there is a

division of the property and separate portions have been constructed by both

the brothers and both of them are in possession of the respective portions

and house tax is being assessed separately, therefore, respondent-plaintiff is

entitled to put any reasonable valuation which he thinks on the relief of

declaration and injunction.      In doing so, the respondent-plaintiff has

committed no illegality and therefore, though not for the reasons as stated in

the impugned order, but for the reasons which I have given above, no fault

can be found in the conclusion of rejecting the application under Order 7

Rule 11 CPC.


5.             In view of the above, this revision petition is dismissed with

costs of Rs.50,000/- considering that not only the respondent has had to

incur costs of this litigation, parties are of that strata who can afford and so

must pay costs.       Costs shall be paid as condition precedent to the




C.R.P.5/2014                                                                 Page 4 of 5
 petitioner/defendant pursuing his defence in the trial court. Costs be paid

within a period of six weeks from today.




JULY 24, 2014                              VALMIKI J. MEHTA, J.

ib