Rajesh Gupta vs Harish Gupta & Ors
2015 Latest Caselaw 1954 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Date of decision: 05.03.2015
+      CS(OS) 1855/2012
       RAJESH GUPTA                                  ..... Plaintiff
                           Through       Ms.Payal Jain, Adv.
                versus
       HARISH GUPTA & ORS                           ..... Defendant
                       Through           Mr.Shiv K.Tyagi, Adv.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

IA No.18541/2013

1. This is an application under Order 7 Rule 11 CPC for rejection of the plaint for want of adequate Court Fees. The suit is filed for partition of suit property No.2573, A/1 Gali No.11, Near Jain Mandir, Govardhan Bihari Colony, Shahdara Delhi-32. For the purpose of Court Fee the Court fee of Rs.20 has been affixed. In the application various grounds for rejection of the plaint on the ground of inadequate court fees have been urged. They are as follows:

(i) It is averred that in paragraph 20 of the plaint the value of the suit for the purpose of jurisdiction has been valued at Rs.80 lacs and the plaintiff has allegedly 1/4th share in the suit property. Yet it is stated that a Court Fee of only Rs.20 has been affixed. It is further stated that the plaintiff was not in possession of any of the suit properties on the date of filing of the suit. Hence, Court Fees had to be affixed ad valorem on the valuation given and

not on a fixed court fees of Rs.20/- as done.

(ii) It is further urged that the fact that the plaintiff is not in possession of any portion of the suit property is clear from the orders passed by this Court previously. Reliance is placed on an order passed by this Court on 10.09.2013 where a prima facie conclusion was reached that it is not possible on the basis of documents placed on record by the plaintiff to conclusively establish that the plaintiffs are in physical possession of property at Shahdara.

(iii) The defendant also relies on judgments of this Court in Sushma Tehlan Dalal vs. Shivraj Singh Tehlan & Ors. (2011) IV AD (DELHI) 341 and Sudhershan Kumar Seth (Sh) vs. Pawan Kumar Seth (Sh) and Ors., (2005 AD (DELHI) 710 to support his contentions.

2. We may look at the legal position. This Court in the case of Sushma Tehlan Dalal vs. Shivraj Singh Tehlan & Ors. (supra) stated the legal position regarding Court Fees in a suit for partition after going through various judgments as follows:-

11. The following legal proposition of law emerges from the above-referred decisions:

(i) In order to ascertain whether the suit has been property valued for the purpose of Court fee or not, only the averments made in the plaint have to be seen, without reference to the plea taken by the Defendants;

(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed Court fee in terms of Article 17(vi) of Court-fees Act.

(iii) If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is

required to claim possession and also pay ad valorem Court fee on the market value of his share in the suit property.

3. A perusal of the plaint shows that there is a categorical averment in the plaint that the plaintiff is doing business on the ground floor, residing on the second floor and having possession of a tin shed at the third floor of the suit property.

Paragraph 6 and 11 of the plaint read as follows:-

"6. The plaintiff is doing his business in the hall at ground floor measuring 50 sq.yds with the help of his labourers, while residing at second floor. The plaintiff is also in possession of tin shed at third floor. The defendants are residing and in possession at first floor and ground floor except the hall aforesaid. The portion in possession of plaintiff has been shown in green colour of site plan, while the portion in possession of defendants has been shown in pink colour and common portion has been shown in sky blue. However, the defendant no.3 Ms.Jyotsna Gupta is an employee under Kurukshetra University.

11. That there after the defendants are disturbing in the business running by plaintiff in hall at ground floor of suit property here at Delhi, through his labourers, as the plaintiff is a handicapped after suffering from accident, by threatening or labelling false allegation and also of dire consequences."

4. Hence, a perusal of the plaint shows that as per the plaint the plaintiff is in possession of a part of the suit property. In view of the legal position as stated above, the plaintiff has rightly affixed the fixed Court Fees of Rs.20/.

5. I will however deal with the contention of the defendant.

6. As far as the second contention raised by the applicant i.e. reliance on the order of this Court in IA No.5116/2012 dated 10.09.2013 is concerned, the said reliance is misplaced. The said order clearly states that the conclusions drawn are only for the purpose of adjudication of the said

application filed under Order 39 Rule 2A CPC. The issue as to whether the plaintiff was dispossessed prior to filing of the suit is an issue which has to be gone into at the time of adjudication after the final evidence between the parties is over. Hence, based on the said order dated 10.9.2013 it cannot be concluded that the plaintiff is ousted from the possession of the suit property.

7. I will deal now with the judgments relied upon by the applicant. In the case of Sushma Tehlan Dalal vs. Shivraj Singh Tehlan & Ors.(supra) the facts were that the plaintiff claimed to be in possession of two rooms, two verandahs, two stores etc. of the property in Roop Nagar, Delhi. Based on such an assertion the Court noted that the plaintiff has specifically alleged that he is in exclusive possession of the said house meaning thereby that the plaintiff has undisputedly claimed joint possession with respect to one of the properties in respect of which partition has been sought. The Court hence concluded that if partition is sought in respect of more than one property and one of the co-owners possesses one property or a part of it and the co- owners possess the remaining properties, all of them will be deemed to be in joint possession of the properties subject matter of partition. This Court also noted that there is no averment in the plaint that the plaintiff has been ousted from the possession of the other properties. Therefore, this Court rejected the application seeking rejection of the plaint. As far as Court fee on the relief of partition is concerned the Court Fee of Rs.20/- in that case was found to be in order. Hence, the judgment though cited by the learned counsel for the defendant actually supports the case of the plaintiff.

8. In the case of Sudershan Kumar Seth (Sh) vs. Pawan Kumar Seth (Sh) and Ors.(supra) the Court came to a conclusion that there was complete

ouster of the plaintiff from the suit property. Hence, the said judgment is based on those facts. In the present case, it is not possible to conclude that there is complete ouster of the plaintiff from the suit property.

9. There is no merit in the present application. As already stated, the plaint is adequately stamped with court fees. The application is dismissed. CS(OS)1855/2012

10. Learned counsel for the defendant requests for an opportunity to file written statement to the amended plaint.

11. The amendment of the plaint was allowed on 1.11.2013. The defendant has still not filed his written statement to the amended plaint. Learned counsel for defendant submits that no effective hearing has taken place after the amendment to the plaint was allowed.

12. The ground for non filing of written statement is without merits. Subject to payment of R.10,000/- the defendants are given a last opportunity to file the written statement to the amended plaint within four weeks from today.

13. List on 1st May, 2015 before the Joint Registrar for completion of pleadings and admission/denial of documents.

JAYANT NATH, J MARCH 05, 2015 n