Delhi High Court
Manju Devi Poddar vs Hari Prakash Poddar on 28 November, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28.11.2016
+ CS(OS) 2281/2013 & C.C. 39/2014
MANJU DEVI PODDAR ..... Plaintiff
Through: Mr. Shiv Khorana and Mr. Ashish
Khorana, Advocates.
versus
HARI PRAKASH PODDAR ..... Defendant/Counter Claimant
Through: Mr. Umesh Mishra, Advocate
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
MS. JUSTICE DEEPA SHARMA
%
C.C. 39/2014
1.
The plaintiff Manju Poddar has filed the present suit for injunction,
eviction, possession and mesne profit in respect of premises of first floor of
KU-160, Pritam Pura, New Delhi- 110 034 and also terrace with right to
construction of third floor along with indivisible right in land underneath
(hereinafter referred to as "the suit property").
2. The plaintiff has claimed the ownership of the said property by virtue
of registered gift deed dated 25.09.2010. The defendant Hari Prakash
Poddar has filed his written statement and also filed a counter claim seeking
declaration to the effect that the said gift deed is a void document. The
counter claim was filed on 24.03.2014. In reply to the counter claim,
CS(OS) 2281/2013 Page 1
plaintiff raised certain preliminary objections including that the counter
claim is under-valued and the defendant was liable to pay the ad valorem
court fee on his counter claim and that the counter claim was barred by the
limitation as the same is filed beyond the period of three years of accrual of
right to sue on 25.09.2010, the date of registration of gift deed.
3. Following issues i.e. Issue no. 5 and Issue no. 6 to that effect were
framed by this Court on 27.02.2015.
Issue no. 5 : Whether the counter claim filed by the defendant is
barred by limitation? OPD
Issue no. 6: Whether the defendant has not paid sufficient
court fee on the counter claim? OPP
4. Subsequently vide order dated 17.08.2016, the court had ordered that
issue no. 5 and issue no. 6 shall be treated as preliminary issues. Thereafter,
the court heard arguments of the parties on these two issues.
Issue no. 6: Whether the defendant has not paid sufficient
court fee on the counter claim?
5. It is contended by the plaintiff that by way of counter claim, the
defendant is seeking a declaration that gift deed which is a registered
document was void and thereby is claiming his right and title in the suit
property and he is liable to pay ad valorem court fee but has only paid the
court fee of Rs. 20,000/- under Article 17 (iii) of Schedule II of the Court
CS(OS) 2281/2013 Page 2
Fees Act. Reliance is placed upon the judgment of Supreme Court in
Suhrid Singh Alias Sardool Singh vs. Randhir Singh & Ors. reported in
(2010) 12 SCC 112.
6. The defendant, on the other hand, has alleged that he is already in
possession of the suit premises and present counter claim for declaration
without consequential relief of possession is maintainable and accordingly
the defendant has paid the court fee under Article 17(iii) of Schedule II of
the Court Fees Act, and he is not liable to pay ad valorem court fee under
Section 7 (iv) (c) of the Court Fees Act.
7. I have given thoughtful consideration to the rival contentions.
Section 7 (iv) (c) of Court Fees Act, 1870 is reproduced as under:-
"7. Computation of fees payable in certain suits-The
amount of fee payable under this Act in the suits next
hereinafter mentioned shall be computed as follows:-
(iv) In suits-
for a declaratory decree and consequential relief-(c) to
obtain a declaratory decree or order, where
consequential relief is prayed.
according to the amount at which the relief sought is
valued in the plaint or memorandum of appeal;
Article 17 (iii) of Schedule II of Court Fees Act is reproduced
hereunder:-
Number Proper fee
17. Plaint or memorandum of
CS(OS) 2281/2013 Page 3
appeal in each of the following
suits:- Ten rupees
(iii) to obtain a declaratory
decree where no consequential
relief is prayed.
8. It is apparent that the defendant in his counter claim has only sought
declaration without consequential relief. He is already in possession of the
suit property. For that purpose, his claim does not fall under Section 7 (iv)
(c) of Court Fees Act. The Supreme Court in the case of Chhabi Dushadh
and Anr vs. Bhuneshwar Pandey and Anr. reported in AIR 2004 Jhar 92,
has discussed Section 34 of the Specific Relief Act dealing with the suits for
declaration and held as under:-
"Question of applicability was raised for the first time in
the appeal before this Court. Section 34 of the Specific
Relief Act runs thus:-
".......Section 34. Discretion of Court as to declaration of
status or right - Any person entitled to any legal character,
or to any right as to any property, may institute a suit
against any person denying, or interested to deny, his title to
such character or right, and the Court may in its discretion
make therein a declaration that he is so entitled, and the
plaintiff need not in such suit, ask for any further relief:
Provided that no Court shall make any such declaration
where the plaintiff, being able to seek further relief than a
mere declaration of the title, omits to do so......"
In a suit under this Section the plaintiffs first must be a
person entitled to any legal character or to any right as to
any property and secondly the defendant must be a person
denying or interested to deny the plaintiffs titled to such
CS(OS) 2281/2013 Page 4
character or right and thirdly the declaration sued for must
be declaration that the plaintiffs are entitled to a legal
character or to a right to property and fourthly where the
plaintiff is able to seek further relief than a mere
declaration of title, he must seek such relief. If any of the
first three conditions is not fulfilled the suit should be
dismissed. If those three conditions are fulfilled but fourth
is not, the Court shall not make the declaration sued for.
The proviso to Section 34 aforesaid is imperative and makes
it obligatory on every Court not be make any declaration in
cases where the plaintiff being able to seek further relief
omits to do so but objection to the maintainability of the suit
on the ground that he does not seek consequential relief
must be taken with promptitude. Here in this case the
question of application of Section 34 of the said Act has
been raised for the first time in the Second Appeal. It is the,
settled law that if the plaintiff is out of possession of the suit
land and only seeks to have his title declared, his suit for
mere declaration will not lie without the consequential relief
of recovery of possession. Thus a plaintiff out of possession
suing for a declaration of title to land ought to pray for
possession if the defendant is in possession but he is not
obliged to do so if the defendant is not in possession or the
plaintiff is in lawful possession of the suit land The plaintiff
in possession of the property, when seeks a declaration of
the title, the suit without a prayer for possession is
maintainable."
9. In the present case, since the defendant is already in possession of the
suit property, his suit for declaration without consequential relief is therefore
maintainable and he has rightly computed the court fee, his claim falls under
Article 17(iii) of Schedule II of the Court Fees Act.
CS(OS) 2281/2013 Page 5
10. This issue stands decided in favour of the defendant and against the
plaintiff.
Issue no. 5 : Whether the counter claim filed by the defendant
is barred by limitation?
11. It is urged by the plaintiff that the defendant has placed his knowledge
to the existence of the gift deed upon the information in the notice of the
plaintiff dated 29.04.2011, he however has not denied the averment of the
plaintiff in the notice wherein the plaintiff has clearly stated that in
December 2010, defendant was asked to vacate the premises. It is argued
that the defendant was aware of existence of gift deed when in December
2010, he was asked to vacate the premises, he was told that the plaintiff was
owner of suit property by virtue of gift deed. The counter claim of
defendant is therefore barred by limitation as raised after expiry of three
years.
12. The defendant placed his knowledge to the existence of a gift deed on
receipt of the notice of the plaintiff dated 29.04.2011 and argues that it was
in this notice that the plaintiff for the first time disclosed the existence of a
gift deed and before that he had no knowledge of the existence of this
document.
13. I have given due consideration to the rival contentions of the parties.
CS(OS) 2281/2013 Page 6
14. While the plaintiff contends that the defendant came to know of the
existence of the gift deed in December 2010 when he was asked to vacate
the suit premises, the defendant has denied any such knowledge and reposed
his knowledge to the existence of the gift deed only on the notice of the
plaintiff dated 29.04.2011. The plaintiff, to substantiate her claim, brought
to the notice of this court the averments of the said notice dated 29.04.2011
and argues that since the defendant has admitted the notice, he has admitted
the facts therein.
15. The relevant portion of the notice is reproduced herein:-
"That in or about 2nd fortnight of December 2010 on being requested
by my client through her husband you assured her husband that you would
quit the licence portion of the said premises to my client very soon....to my
client."
16. It is clear that the admission/denial of the documents in this case has
been completed. During the admission/denial of the documents while the
defendant has admitted the receipt of said notice, he has denied the contents
of the notice. Also, it is apparent that in the notice dated 29.04.2011, the
plaintiff has not stated that in December 2010, she had told the defendant
about the gift deed. The plaintiff therefore is required to prove the fact that
CS(OS) 2281/2013 Page 7
in December 2010 when the defendant was asked to vacate the suit
premises, he had the knowledge of existence of the gift deed.
17. From the above, it is clear that the date of knowledge of existence of
the gift deed is a disputed question of fact which can be decided only on the
basis of evidences to be led by the parties.
18. This issue therefore be decided along with the main suit i.e. CS(OS)
2281/2013.
CS(OS) 2281/2013
List the matter before the Joint Registrar on 10.01.2017 for recording
of evidence.
DEEPA SHARMA
(JUDGE)
NOVEMBER 28, 2016
sapna
CS(OS) 2281/2013 Page 8
