Arjun Chowdhry vs Capital Land Builders & Ors
2018 Latest Caselaw 4007 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of Decision 17.07.2018

+      C.R.P. 141/2018 and CM Nos. 27756-57/2018

       ARJUN CHOWDHRY                       ..... Petitioner
                   Through:            Mr.Ashok Chhabra and
                                       Mr.Hem Kumar, Advocates
                          versus

       CAPITAL LAND BUILDERS & ORS                  ..... Respondents
                          Through:     Mr.Viraj Datar, Mr.Vineet
                                       Jhanji and Mr.Imran Moulaey,
                                       Advocates for R-1 on advance
                                       notice
       CORAM:
       HON'BLE MS. JUSTICE ANU MALHOTRA

                   JUDGMENT (ORAL)

1. On behalf of the petitioner, at the outset, reliance has been placed on the verdict of this Court in Oil and Natural Gas Corporation Ltd. v. Vijay Mahajan, 237 (2017) DLT 158 whereby it has been observed to the effect that instead of returning the petition giving an opportunity to the petitioner to file a fresh petition under Article 227 of the Constitution of India, it would be in the interest of justice that the Registry be directed to renumber the present petition as CM(M) treating the present petition as a petition under Article 227 of the Constitution of India. As per the Roster of this Court, such petitions are also being heard by this Court. On behalf of the respondent No.1 who is the main contesting party, it is submitted that

there is no opposition to the said prayer. In view thereof the present petition is directed to be treated as a petition under Article 227 of the Constitution of India and the Registry is directed to renumber the same.

2. At the outset, it has been submitted on behalf of either side that the respondent No.1 is the only contesting respondent in the instant case.

3. Vide the present petition, the petitioner has assailed the impugned orders dated 2.6.2018 and 5.7.2018 of the Court of the Additional District Judge-02, Karkardooma Courts, in CS-174/16 whereby vide order dated 2.6.2018, an application under Order VI Rule 17 CPC filed by the plaintiff, i.e., the respondent No.1 to the present petition, seeking an amendment in paragraph 19 of the plaint in relation to the aspect of valuation of the suit property for the purpose of court fees and jurisdiction was allowed and apart from the same, there was another amendment also allowed in relation to bringing on record the new authorized representative of the plaintiff, i.e., the respondent No.1.

4. The petitioner, as already observed herein above, has also assailed the impugned order dated 5.7.2018 of the learned Trial Court which reiterated the order dated 2.6.2018 of the learned Trial Court whereby an application under Section 114 r/w Order XLVII Rule 1 CPC was declined observing inter alia to the effect that the plaintiff was the master of his case and the valuation of the relief is always within the domain of the plaintiff subject to provision of Section 10 of

the Court Fees Act and the Suit Valuation Act. It was categorically observed by the learned Trial Court vide order dated 5.7.2018 to the effect that the trial had not commenced in the matter in as much as before filing the application under Order VI Rule 17 CPC by the plaintiff, i.e., the respondent No.1 to the present petition, the defendants No.1 and 2 of the said suit, of whom the defendant No.2 is arrayed as the present petition to the present petition, had filed an application under Order VI Rule 17 CPC seeking an amendment in the written statement in the year 2015 before commencement of the cross- examination of the plaintiff and that the defendant No.2, i.e., the present petitioner had now objected to the plaintiff to seek an amendment under Order VI Rule 17 of the Code of Civil Procedure.

5. On behalf of the petitioner reliance has been placed on the verdict of this Court in Anuradha Gupta vs. Veena Devi; CM(M) 1069/2016 decided on 24.7.2017 with specific reliance qua observations in paragraph 14

"14. Be that as it may in the light of the judgment of the Supreme Court in Suhrid [email protected] Singh supra, paras 7 & 8 whereof are as under:

"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by

the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-

executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-

executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.

8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the

value of the property calculated in the manner provided for by clause (v) of Section 7."

the issue does not require any further debate. It has been lucidly held by the Supreme Court that if the executant of the deed seeks cancellation thereof he has to pay ad volarem court fees on the consideration stated in the sale deed; Supreme Court has not made payment of ad valorem court fees dependent upon the fact whether the executant, on the date of suit had possession of the property or not. Only in the case of a suit by non- executant of a sale deed, is the factum of possession relevant i.e. the non-executant not in possession is required to pay ad valorem court fees but if in possession is not required to pay ad valorem court fee and can pay fixed court fees."

submitting to the effect that such an amendment as sought by the plaintiff, i.e., respondent No.1, qua the valuation of the suit for the purpose of the Court fees and jurisdiction cannot be permitted. Reliance was also placed on behalf of the petitioner on the verdict of this Court in Sujata Sharma v. Manu Gupta and Ors.; CS(OS) 2011/2006 decided on 8.2.2010 submitting to the effect that the fixed court fee only was required to be paid and thus the amendment sought by the respondent No.1 was actually seeking forum stopping which cannot be permitted and that there can be no permission granted for the amendment sought by the respondent No.1 on the basis of the market value of the property which the respondent No.1 through an application under Order VI Rule 17 CPC at the outset had since increased. Reliance was also placed on behalf of the petitioner on the

verdict of the Supreme Court in Vidyabai and Ors. v. Padmalatha and Anr.; AIR 2009 SC 1433 submitting to the effect that the trial in the instant case had already commenced and that in terms of the amendment w.e.f. 1.7.2002 in the Code of Civil Procedure, 1908, in terms of the Proviso to Order VI Rule 17 CPC there was nothing on the record to indicate that there has been any exercise of due diligence by the plaintiff i.e., respondent No.1 before seeking the amendment sought.

6. On behalf of the respondent No.1 at the outset it has been submitted that on the basis of the pleadings of the parties issues had been framed when the matter was pending in this Court before the change of pecuniary jurisdiction vide order dated 28.5.2009 which issues read to the effect:

"1. Whether the plaint has been signed, verified and instituted by a duly authorized person on behalf of plaintiff? OPP

2. Whether the plaintiff is entitled for cancellation of sale deed dated 24th April, 2006? OPP

3. Whether the plaintiff is entitled for a decree for declaration as prayer for ? OPP

4. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for ? OPP

5. Whether the plaintiff is entitled for damages, if so, how much and from which of the defendants?

OPP

6. Whether the Civil Court does not have jurisdiction to try the suit as alleged by the defendants? OPD

7. Whether the defendant NO.3 is the bona fide purchaser of the property in dispute as alleged by the defendant No.3? OPD3

8. Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction and appropriate Court fees has not been paid by the plaintiff? OPD

9. Relief."

7. Issue No.8 was specifically in relation to the objections raised on behalf of the defendant No.2, i.e, the present petitioner qua the aspect of the suit having not been properly valued for the purpose of court fees and the jurisdiction and whether the appropriate court fee had not been paid by the plaintiff and that the objection raised by the defendant No.2 i.e. the present petitioner herein was to the effect that the suit had been under valued by the plaintiff for the purpose of the Court fee and the jurisdiction and that taking the said aspect into account and the enhancement of the market value of the suit property,the respondent No.1 i.e. the plaintiff of the suit in question had sought the amendment as prayed before the learned Trial Court which was so granted vide impugned order dated 2.6.2018.

8. Reliance has been placed on behalf of the respondent No.1 on the verdict of the Supreme Court in Mount Mary Enterprises v. Jivratna Medi Treat Private Limited; (2015) 4 Supreme Court Cases

182, wherein qua the specific reliefs qua observation in paragraphs 4 to 7 which read to the effect:

"4. It had been also submitted by the learned counsel that in normal circumstances an amendment application is always granted unless by virtue of the amendment, nature of the suit is changed or some irreparable harm is caused to the defendant. According to him, in the instant case neither nature of the suit was changed nor was the defendant being put to any hardship. The amendment was also not likely to cause any prejudice to the defendant. The amendment which was sought to be made was just and proper because actual market value of the said property was Rs.1,20,00,000/-. For the aforesaid reasons, it had been submitted by him that the impugned judgment confirming the order rejecting the amendment application should be set aside and the appellant should be permitted to amend the plaint.

5. On the other hand, the learned counsel appearing for the respondent- defendant had submitted that the amendment application was filed at a belated stage with an oblique motive. According to him, in pursuance of the said amendment, the suit was to be transferred to the High Court and only with an intention to see that the suit is transferred to the High Court on its original side, the plaintiff wanted to amend the plaint. It had, therefore, been submitted by him that the amendment application was rightly

rejected by the trial court and the High Court had rightly confirmed the said order.

6. We have heard the learned counsel and have also considered the facts of the case.

7. In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs.13,50,000/- but as the market value of the property was actually Rs.1,20,00,000/-, the appellant-plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint."

9. Vide paragraph 7 of the said verdict relied upon, it has been specifically observed to the effect that the nature of the suit would not change by virtue of granting the amendment application where the property has initially been valued at Rs.13,50,000/- but as the market value was at Rs.1,20,00,000/- the applicant plaintiff therein had submitted an application for amendment so as to give the correct value of the suit property in the plaint and taking the same into account the amendment sought was granted.

10. Reliance was also placed on behalf of the respondent No.1 i.e., the plaintiff of the suit before the learned Trial Court, on the verdict of

the Hon'ble Supreme Court in Lakha Ram Sharma v. Balar Marketing Private Limited; (2008) 17 SCC 671 with specific reliance on the observation in paragraph 4 which reads to the effect

"4. It is settled law that while considering whether the amendment is to be granted or not, the Court does not go into the merits of the matter and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the Suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that Court is no ground for refusing that amendment. We, therefore, do not find any justifiable reason on which the High Court has refused this amendment. Accordingly, the impugned order is set aside and that of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from Rs. 1 Lakh to Rs. 10 Lakh, the trial court will determine, whether or not Court Fees are correctly paid."

wherein inter alia it has been observed to the effect that it was also a settled law that merely because the amendment may take the suit out of the jurisdiction of that Court is no ground for refusing that amendment, though it was clarified that as the plaintiff has raised the claim from Rs.1 lakh to Rs.10 lakhs, the trial will determine, whether or not court fees are correctly paid.

11. The issue No.8 as framed on 28.5.2009 would undoubtedly have to be determined by the trial court on the basis of the evidence

led. Reliance was also placed on behalf of the respondent No.1 on the verdict of this Court in Mehra Cosmetics v. Ram Kumar Gulati & Ors. in CS(OS) 196/2016 decided on 6.12.2016 wherein it has been categorically observed to the effect that in relation to an application seeking increase of valuation from Rs.10 lakhs to Rs.1 crore on payment of additional court fee which prayer had been opposed by the defendants to the effect that the question was no longer res integra and the judgment dated 6.9.2016 of the Hon'ble Full Bench of this Court in CS(OS) 1416/2009 in Subhashini Malik Vs. S.K.Gandhi and that as the said aspect was not relevant and germane at the stage.

12. On a consideration of the rival submissions on the verdicts relied upon on behalf of either side specifically in view of the verdicts of the Supreme Court in Mount Mary Enterprises v. Jivratna Medi Treat Private Limited (Supra), Lakha Ram Sharma v. Balar Marketing Private Limited (Supra) and Subhashini Malik Vs. S.K.Gandhi (Supra) and also the factum that the amendment sought by the plaintiff does not in any manner prejudice the defendant No. 2 i.e., the present petitioner in any manner and does not change the nature of the suit also in any manner and taking into account the factum that defendant No.2 has himself raised the issue in relation to the aspect of under valuation of the suit property and for the purpose of the court fees and jurisdiction qua which issue no. 8 was framed at the time of framing of the issues coupled with the factum that virtually the trial has yet to commence in as much as the testimonies of the witnesses are yet to be led, it is held that there is no merit in the prayer

made by the petitioner seeking the setting aside of the impugned order dated.2.6.2018 qua the amendment sought by the respondent No.1 in relation to the para 19 of the plaint.

13. As regards the other issue that was raised by the petitioner in relation to the substitution of the authorized representative of the respondent No.1 which was also allowed qua the plaintiff to the civil suit vide the impugned order dated 2.6.2018, the learned counsel for the petitioner has now submitted that he does not press the said prayer.

In view of the above observations, the petition is dismissed. A copy of this order be sent to the learned trial court.

Nothing stated herein above shall amount to an expression on the merits or demerits of the suit or evidence led in relation to issue No.8.

ANU MALHOTRA, J

JULY 17, 2018/SV