Delhi High Court
Om Prakash Malik vs Pawan Kumar Malik on 5 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
[
% Date of decision: 5th October, 2018.
+ RSA 146/2018 & CM No.41229/2018 (for stay).
OM PRAKASH MALIK ..... Appellant
Through: Mr. Surendra Mishra and Ms. Sonal
Mishra, Advs.
versus
PAWAN KUMAR MALIK ..... Respondent
Through: Mr. Bhavneet Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Caveat No.928/2018.
1. The counsel for the caveator appears.
2. The caveat stands discharged.
RSA 146/2018 & CM No.41229/2018 (for stay).
3. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 19 th May,
2018 in MCA/DJ/31/2017 of the Court of the Additional District Judge-05
(West)] of dismissal of First Appeal under Section 96 of the CPC preferred
by the appellant against the judgment and decree [dated 12th April, 2017 of
the Court of Civil Judge (West)] on admissions, under Order XII Rule 6 of
the CPC, of ejectment of the appellant/defendant from Shop No.WZ-6/1,
Jawalaheri Market, Paschim Vihar, New Delhi.
4. The counsel for the appellant/defendant has argued that the
appellant/defendant, on 1st October, 2018, has already been ejected from the
subject shop. He states that no notice was given to him of execution. The
counsel for the appellant/defendant further states that he personally asked
the bailiff the date when the bailiff was coming, but the bailiff did not
inform him and suddenly came to the shop and removed all the goods of the
appellant/defendant therefrom and took possession.
5. I have enquired from the counsel for the appellant/defendant, under
which law was the appellant/defendant/judgment debtor expecting to be
informed.
6. No answer is forthcoming.
7. Under Order XXI Rule 22 of the CPC, when an application for
execution is filed within two years of the date of the decree, no notice is
required to be sent to the judgment debtor. The grievance of the
appellant/defendant in this context is without any basis in law.
8. The counsel for the appellant/defendant has next drawn attention to
the questions of law proposed in para 17 of the memorandum of appeal as
under:-
"a) Whether the 1st Appellate Court is correct in
passing the impugned judgment without
considering the objection of the appellant with
regard to cause of action, valuation of suit,
jurisdiction, court fee and non termination of
tenancy?
b) Whether the 1st Appellate Court is correct in
passing the impugned judgment without
considering the provision of Order 12 Rule 6
CPC and judgment relied upon by the
appellant?
c) Whether the 1st Appellate Court is correct in
passing the impugned judgment without
considering the issue wrong site plan filed by
the respondent?
d) Whether the Decree dated 19.05.2018 is non
executable due to under valuation of suit and
deficient payment of court fee and wrong site
plant of the suit property?"
and has also drawn attention to page 73 of the paper book, being para
17 as under:-
"17. That the value of the suit for the purpose
of Court fees for Arrear of Rent, possession and
mesne profit and damages at Rs.95,000/- for which
court fee of Rs.1,950/- is been paid and Court fee.
The plaintiff undertake to pay the deficient court fee
if any."
of the plaint in the suit from which this Second appeal arises and has
contended that the appellant/defendant raised objection that the suit had not
been properly valued for the purposes of court fees and jurisdiction; that no
separate valuation for each of the reliefs claimed in the suit had been given
and that there was no valuation for the purposes of jurisdiction, but neither
the Suit Court nor the First Appellate Court have dealt with the said aspects.
9. I have enquired from the counsel for the appellant/defendant that as
per which law, according to him, the valuation as done is wrong.
10. Again no answer is forthcoming.
11. Section 7 (xi) of the Court Fees Act, 1870 provides for valuation of a
suit, between landlord and tenant, for the purposes of court fees, to be of
annual rent payable for the premises. Section 8 of the Suits Valuation Act,
1887 provides that the valuation for the purposes of jurisdiction shall be the
same. It was the case of the respondent/plaintiff in the plaint that the
appellant/defendant was a tenant on last paid rent of Rs.5,500/- per month
i.e. at an annual rent of Rs.66,000/-. It was further the case in the plaint that
the appellant/defendant had not paid rent amounting to Rs.93,000/-.
12. Judgments of as far back as in Kishori Lal Roy Vs. Sharut Chunder
Mozumdar MANU/WB/0047/1882 and consistently followed in (i)
Reference under the Court Fees Act, 1870, s. 5 1894 SCC OnLine ALL
56; (ii) Nauratan Lal Vs. Wilford Joseph Stephenson AIR 1922 Pat 359;
(iii) In re. Parameswara Patter AIR 1930 Mad 833 (FB); (iv) In re. D.
Lakshminarayana Chettiar AIR 1954 Mad 594 (FB); (v) S.V.
Narasimham Vs. P.V.G. Raju Rajah of Vizianagaram 1958 SCC OnLine
AP 322; (vi) Balmer - Lawrie Vs. Bank of Maharashtra 1999 SCC
OnLine Cal 522; and, (vii) Krishna Prakash Vs. Dilip Harel Mitra
Chenoy (2001) 93 DLT 777 (DB) have held, that in a suit for ejectment
and for arrears of rent and mesne profits, composite court fees can be paid
on valuation for the purposes of ejectment and valuation for the purposes of
recovery of arrears of rent and mesne profits. The respondent/plaintiff was
thus entitled to club valuation of Rs.66,000/- with the amount of arrears of
rent and mesne profits claimed.
13. Though in para 10 of the plaint, an amount of Rs.93,000/- was
pleaded to be due towards arrears, but in the prayer paragraph in the plaint,
the claim was only for Rs.75,000/-. Thus the respondent/plaintiff was
entitled to club Rs.75,000/- with Rs.66,000/-. The valuation given of
Rs.95,000/- was deficient.
14. However the same cannot be fatal to the suit and if the Suit Court,
while admitting the suit did not scrutinize the said aspect, the only effect
thereof would be that the respondent/plaintiff, either before executing the
decree for arrears of rent/mesne profits which has not been passed till now,
will have to pay the deficient court fees or be entitled to recover arrears of
rent/mesne profits proportionate to the court fees paid. It has been held by
the Supreme Court in Mannan Lal Vs. Chhotaka Bibi 1970 (1) SCC 769
that Section 149 of CPC is to be read as a proviso to Section 4 of the Court
Fees Act and which reading allows the Court to fix a period of time in
which deficiency in court fees can be made good. Similarly, in A. Nawab
John Vs. V.N. Subramaniyam (2012) 7 SCC 738 it has been held that any
amount of lapse of time does not fetter the authority of the court to direct
the payment of deficient court fees. The same can thus not be reason for
framing any substantial question of law.
15. Else, the relationship of landlord and tenant and the rate of rent being
Rs.5,500/- per month was not disputed in the written statement and it was
not the case that there was any registered Lease Deed entitling the
appellant/defendant to continue as a tenant in the shop. The Suit Court was
thus entitled to decree ejectment on admissions and the First Appellate
Court justified in dismissing the appeal.
16. No other argument has been raised qua other substantial questions of
law as framed in the memorandum of appeal. The same, even otherwise, do
not arise.
17. The appeal does not raise any substantial question of law and has no
merit and is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
OCTOBER 05, 2018
'pp'..
