Suresh Kapoor vs Shashi Krishanlal Khanna & Ors
2019 Latest Caselaw 4745 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision: October 01, 2019

+     CS(OS) 236/2010, I.As. 5415/2011, 23113/2014 & 14315/2016

      SURESH KAPOOR
                                                               ..... Plaintiff
                            Through:   Mr. Virender Goswami, Ms. Soni
                                       Singh and Mr. Shamik Saha, Advs.


                            versus

      SHASHI KRISHANLAL KHANNA & ORS
                                                              ..... Defendants
                            Through:   Mr. Sangram Patnaik, Mr. Swayam
                                       Sidha and Mr. Pranav Mundra, Advs.
                                       for D-1
                                       Mr. Manjit Singh Ahluwalia, Adv. for
                                       D-2 & D-3
                                       Mr. S. Sartanam Swaminathan and Mr.
                                       Kartik Malhotra, Advs. for D-7 & D-8
    CORAM:
    HON'BLE MR. JUSTICE V. KAMESWAR RAO

    V. KAMESWAR RAO, J. (ORAL)

I.A. 14315/2016

1. By this order I shall dispose of this application filed by the

plaintiff under Order VI Rule 17 read with Section 151 CPC for

amendment of the plaint. Vide the said amendment the plaintiff

intends to amend / replace paragraph 27(i) of the plaint in the

following manner:

"27(i) For the relief of partition of the suit property, the suit is valued at 13,03,27,088/- (Rs. Thirteen crores Three Lakhs Twenty Seven Thousand and eighty eight only) as per notified circle rates (of November 2011), the Plaintiff being owner of 1/9th share in the said property which is accordingly valued at 1,44,80,788/- (Rs. One crore Forty Four Eighty Thousand Seven Hundred and Eighty Eight only) upon which the court fee of Rs.1,44,000/- (Rs. One Lakh Forty Four Thousand only) is being paid. The plaintiff undertakes to pay further court fee, if any, payable or directed to be paid by this Hon'ble Court."

2. It is the case of the plaintiff and submitted by Mr. Virender

Goswami that this Court vide its order dated October 10, 2014

directed the plaintiff to pay ad valorem Court fee after specifying

the market value of his share in the suit property. The Court fee

was filed by the plaintiff promptly within the time granted by this

Court. According to him, the amendment as stated is necessary and

imperative / formal in order to determine the real controversy

between the parties to the present suit and the proposed amendment

does not in any manner alter or substitute a new cause of action on

the basis of which the original plaint was filed.

3. He states that the application is not mala fide as contended

by the defendant No.1. That apart, it is his submission that the ad

valorem Court fee has been paid by the plaintiff assessing the value

of the share of the plaintiff in the property as per the circle rate.

This discretion exists with the plaintiff in view of sub-section 4 of

Section 7 of the Court fee Act. The Court fee as paid by the

plaintiff has not been arrived at arbitrarily and / or whimsically as

sought to be contended by the defendant No.1. In other words, it is

his submission that the market value of the property as held by this

Court in its order dated October 10, 2014 can only be determined by

recognized principle which is the circle rate. In support of his

submission Mr. Virender Goswami has relied upon the following

judgments:

(i)      S.Rm.Ar.S.Sp.             Sathappa       Chettiar          v.
         S.Rm.Ar.Rm.Ramanathan                               Chettiar,
         MANU/SC/0003/1957;

(ii)     Sheila Devi and Ors. v. Kishan Lal Kalra and Ors.,
         MANU/DE/0073/1974; and

(iii)    Commercial Aviation and Travel Company and Ors. v.
         Vimla Pannalal, MANU/SC/0299/1988.

4. On the other hand, Mr. Sangram Patnaik, learned counsel

for the defendant No.1 submits that the present amendment sought

by the plaintiff is totally misconceived untenable in fact it is in

violation of the order passed by this Court on October 10, 2014

wherein the Court had clearly held that the ad valorem fee on the

market value of the plaintiff share in the suit property need to be

filed. He laid stress on the fact that the Court has directed to deposit

the ad valorem court fee on the basis of the market value of his

share in the suit property which only means the value, which the

property shall fetch in the open market which according to him, is

surely different from the value as per the circle rate. Any order

contrary to order dated October 10, 2014 passed by this Court

justifying the payment of ad valorem court fee on the basis of the

circle rate shall amount to modifying / reviewing the said order

which is impermissible.

5. In substance, it is his submission that the market value and

circle rate of the property are completely two different concepts

which works on separate parameters for the purpose of fixing the

rate of the property. He would also state that it is not the case of the

plaintiff that the circle rate and the market rate of the property is one

and the same. In support of his submissions Mr. Sangram Patnaik

has relied upon the following judgments:

Sr.           Judgments                           Proposition
No.

1.                  Chander Kanta Bansal
                    v. Rajinder Singh
                    Anand, AIR 2008 SC




2.                  Lal Chand v. UOI and          Market Value is
                    Anr.,(2009) 15 SCC            different than that of
                    769,                          Circle Rate of the
                                                  Property.
3.                  Balwant Singh v. UOI          Circle Rate is lower
                    and Anr., 2016 SCC            than the actual
                    Online Del 154                market rate of the
                                                  property.
4.                  Thakur Kuldeep Singh          Locality         and
                    (death) through Lrs.          Prevailing factors
                    And Ors. v. UOI and           are the indicators of
                    Ors. (2010) 3 SCC 794         market value of
                                                  land.

6. Having heard the learned counsel for the parties, there is no

dispute that the Court in its order dated October 10, 2014 has clearly

held that the plaintiff is not entitled to pay fix court fee rather he is

to pay ad valorem court fee on the market value of his share. In

other words, the value of plaintiff's share has to be determined on

the basis of the rate, which the property would fetch in the open

market.

7. During the course of submissions an attempt was made by

Mr. Virender Goswami to contend that the circle rate would

determin the market value of the property. On a specific query

whether, has he stated in the application that the circle rate of the

property is equivalent to the market value of property, the answer is

in the negative. At the same time, even the defendant No.1 has not

placed any material on record to show that the circle rate of the

property is at variance with the market rate of the property. The

issue whether the market value of the property is higher than the

circle rate of the property is mixed question of fact and law. In the

absence of any documentary evidence, it is difficult to agree with

the respective submissions made by the counsel for the parties.

8. No doubt, they have relied upon the judgments in support of

their contentions, including the proposition of law that the plaintiff

is within his right to value the suit for the purpose of court fee and

jurisdiction but at the same time, the conclusion of this Court in the

order dated October 10, 2014 cannot be over looked. The said order

is conclusive, as I have been informed that even an appeal before

the Division Bench against the said order has been dismissed. So, it

follows the order to be passed by this Court in this application

cannot have the effect of modifying the order already passed on

October 10, 2014. So, the question would be whether in fact the

market value of the property is more than the circle rate. If yes,

surely the plaintiff is liable to pay the court fee over and above the

one he has paid now by valuing the property on the basis of the

circle rate. But the arguments of both the counsels are in air without

any material to support their respective contention. This issue can

only be decided on the basis of evidence to be placed before the

Court by the parties. In such a situation, appropriate shall be for the

Court to frame an issue whether the suit has been properly valued. I

have noted that the issues have still not been framed in the case. So,

such an issue can be framed as and when they are framed in the suit.

The application is allowed. The amendment as sought to be made is

allowed to be incorporated in the plaint. Let amended plaint be

filed in four weeks with documents. Written statement shall be filed

within four week thereafter with affidavit of admission / denial of

documents. Replication shall be filed within four weeks of filing of

the written statement with admission / denial of documents of the

defendants. The application is disposed of.

CS(OS) 236/2010, I.As. 5415/2011 & 23113/2014

List the suit along with applications for hearing on 18 th

November, 2019.

V. KAMESWAR RAO, J

OCTOBER 01, 2019/aky