Delhi High Court
Pooja vs Narender Kumar Sharma & Ors on 5 September, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 868/2017 & CM No.28945/2017 (for stay)
POOJA ..... Petitioner
Through: Mr. Prasouk Jain, Adv.
Versus
NARENDER KUMAR SHARMA & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 05.09.2017
1. This order is in continuation of the earlier order dated 16 th August,
2017.
2. The counsel for the petitioner has filed documents and has drawn
attention to the order dated 2nd May, 2016, in the suit from which this
petition arises, on an application under Order I Rule 10 of the Code of Civil
Procedure, 1908 (CPC). Though the application was under Order I Rule 10
of CPC but from a reading of the order dated 2nd May, 2016, it is clear that
the impleadment of the petitioner as defendant in the suit was on the demise
of her father and in substitution of her father and not owing to any
independent right of the petitioner. Merely because the nomenclature of
Order I Rule 10 of CPC has been used would not change the position in law,
of the petitioner having come into picture as an heir of her father.
3. What thus transpires is that the application under Order VII Rule 11
of CPC was filed after ten years from the institution of the suit.
4. Be that as it may, the merits of the matter have also been considered.
5. The suit filed by the respondent No.1/plaintiff from which this
petition arises, is for recovery of possession of immoveable property and for
permanent injunction restraining the defendants from selling, disposing of,
transferring, alienating and parting with possession of the said property.
6. The counsel for the petitioner has argued that the plaint is liable to be
rejected because the respondent No.1/plaintiff has not sought the relief of
declaration of his title to the property. It is argued, that the respondent
No.1/plaintiff in the plaint has claimed title to the said property as an heir of
his father and on the basis of documents executed in his favour by the other
heirs of his father. It is further contended that the petitioner / defendant and
the respondent No.2 in this petition who is defendant No.2 in the suit,
contested the title of the respondent No.1/plaintiff to the property to be
entitled to the relief of possession and permanent injunction and in the light
thereof, it was necessary for the respondent No.1/plaintiff to seek the relief
of declaration. Reliance is placed on Anathula Sudhakar Vs. P. Buchi
Reddy MANU/SC/7376/2008 particularly to para 11.3 thereof.
7. The aforesaid contention of the counsel for the petitioner suffers from
the basic fallacy that for the purpose of Order VII Rule 11 of CPC, the plaint
alone is to be looked into and no other material on record. Thus, the
question of looking into the written statement of the defendants, to find out
whether the defendants have admitted or disputed the title claimed by the
plaintiff in the plaint and to, on the basis thereof, decide whether the plaintiff
was entitled to maintain a suit for possession alone or was also required to
seek declaration, does not arise. Supreme Court recently in Kuldeep Singh
Pathania Vs. Bikram Singh Jaryal (2017) 5 SCC 345 has clarified the
difference between Order VII Rule 11 and Order XIV Rule 2 of CPC by
providing that while under Order VII Rule 11 of CPC, only the plaint and
the replication if containing any admissions of the averments in the written
statement can been seen, at the stage of decision on preliminary issue,
though also on law, all the materials on record can be seen.
8. The reliance placed on Anathula Sudhakar supra is also
misconceived. Supreme Court in that case was concerned with a finding of
title to an immoveable property having been returned in a suit for mere
injunction and the judgment has to be read in that context only. I may in this
regard refer to another recent judgment of the Supreme Court in Sundeep
Kumar Bafna Vs. State of Maharashtra (2014) 16 SCC 623 laying down
that with a plethora of orders and judgments emanating from the Supreme
Court and all orders and judgments being reported, the Courts have to be
careful in applying only the ratio of the judgment and not to misapply the
judgments. As far as para 11.3 of Anathula Sudhakar supra is concerned,
what has been observed therein was that where the plaintiff is in possession,
but his title to the property is in dispute, or under a cloud, in such case, the
plaintiff is required to claim declaration. It was further observed that where
the title of the plaintiff is under a cloud or in dispute and he is not in
possession or not able to establish possession, necessity for the plaintiff to
file a suit for declaration, possession and injunction will arise.
9. From the averments in the plaint in the present case, it cannot be said
that the title claimed by the respondent No.1/plaintiff is in dispute, for it to
be said that it was incumbent upon the respondent No.1/plaintiff to seek the
relief of declaration.
10. The counsel for the petitioner has next argued that the respondent no.1
/ plaintiff, by not claiming the relief of declaration, has avoided paying the
appropriate court fees. It is contended that if the suit was for the relief of
declaration-cum-possession, ad valorem court fees would have been payable.
11. The aforesaid argument is also in ignorance of law. It is not as if,
under Section 7(iv)(c) of the Court Fees Act, 1870, the court fees has to be
paid twice over, on declaration as well as for the consequential relief
claimed. It has been held in M/s Ranchhoddas Shamji Khirani Vs. Balwant
Kaur Malik AIR 1971 Del 249 (DB), Union of India through Chief
Commissioner Delhi State Vs. Sir Sobha Singh & Sons (P) Ltd. (1969) 5
DLT 464 and Mahant Purushottam Das Vs. Har Narain AIR 1978 Del 114
that as per the proviso added to Section 7(iv)(c) of the Court Fees Act, in
Delhi, the court fees payable on declaration accompanied with consequential
relief when relating to an immoveable property, is in terms of Section 7(v)
of the Court Fees Act. It shows that the court fees payable would remain the
same, whether under Section 7(iv)(c) or under Section 7(v) of the Court Fees Act.
12. The petition is thoroughly misconceived and is dismissed with costs.
13. The counsel for the petitioner at this stage states that it is a pro bono matter.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 05, 2017/bs..
