Delhi High Court
Shailendra Ghai vs Anil Ghai & Ors on 31 January, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 31st January, 2022
+ CS(OS) 1470/2010
SHAILENDRA GHAI ..... Plaintiff
Through: Mr. Prag Chawla, Advocate
versus
ANIL GHAI & ORS ..... Defendants
Through: Mr. Atul Nigam. Advocate
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
O.A.30/2021 (by the plaintiff under Chapter II Rule 5 Delhi High
Court (Original Side) Rules, 2018 read with Section 151 CPC),
I.As.16272/2021 (by the respondent under Section 5 of the Limitation
Act read with Section 151 CPC for condonation of delay of 3 days in
filing the accompanying chamber appeal) & 16273/2021 (by the
respondent under Chapter IV Rule 3 (e) read with Section 5 of the
Limitation Act and Section 151 CPC for condonation of delay of 10
days in filing the accompanying chamber appeal)
1. This is an appeal that has been filed by the plaintiff being
aggrieved with the orders of the Joint Registrar dated 8th October, 2021
directing the plaintiff to pay the deficient Court Fees without fail before
the next date of hearing.
2. I.A. no.16272/2021 has been filed seeking condonation of delay of
three days in filing the appeal.
3. Mr. Prag Chawla learned counsel for the plaintiff submits that the
suit has been filed for partition and the Fixed Court Fees has already been
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:31.01.2022
18:12:26
paid. It is his contention that merely because the Registry raised an
objection, the learned Joint Registrar could not have directed the plaintiff
to pay the deficient Court Fees without first applying its mind to
determine whether in fact the Court fees paid was deficient or not.
Learned counsel submitted that in the plaint, the plaintiff has asserted that
he was in possession of part of the properties that constituted the estate of
the deceased father. Therefore, the plaintiff had only to pay Fixed Court
Fees and not ad-valorem Court Fees on market value of the properties.
Learned counsel pointed out that in the written statement, the factum of
possession has been admitted by the defendants. Hence, it was submitted
that the impugned orders be set aside and the plaintiff be exempted from
filing further Court Fees.
4. Mr. Atul Nigam, learned counsel on behalf of the defendants on the
other hand, contended that the first order in this regard was passed on 18th
January, 2020 but that order has not been challenged. Several other orders
were passed repeating the direction to the plaintiff to file the deficient
Court Fees. On 8th October, 2021, a final opportunity seems to have been
granted to the plaintiff by the learned Joint Registrar as by that date, the
application filed by the defendants on 13th September, 2021 under Order
VII Rule 11 had also been filed. It is only thereafter, that this appeal has
been preferred. Technically, according to the learned counsel, this appeal
was not maintainable. On merits, learned counsel submitted that no claim
in the plaint had been made by the plaintiff of being in part possession of
the properties and thus the appeal be dismissed.
5. It is settled law that in a suit for possession and partition, if the
plaintiff pleads that he is the co-owner of the properties sought to be
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Signed By:MANJEET KAUR
Signing Date:31.01.2022
18:12:26
partitioned and joint possession is pleaded, only fixed Court Fees would
be payable under Article 17 (vi) of the Schedule II of the Court Fees Act,
1870 even presuming the joint possession of the plaintiff, even if the
plaintiff is not in actual possession. Unless, there is a clear case made out,
by the defendants of ouster of the plaintiff or the plaintiff himself pleads
such ouster, there would be, in fact, no occasion for the plaintiff to pay
ad-valorem fees on the market value of his share as provided under
Section 7 (iv) (b) of the Court Fees Act, 1870. This Court has in several
cases applied this principle of law while dealing with partition suits.
6. Turning to the plaint, it is clear that the plaintiff has sought
partition, declaration, possession, permanent injunction alongwith mesne
profits and damages in respect of several properties as listed in Para
No.18. The plaintiff has specifically pleaded that he was in possession of
the Basement, ground floor and roof of the residential property at 28/75,
West Punjabi Bagh, New Delhi, along with roof, except for two servant
rooms on the roof and a plot situated at Kotdwara Road, Najibabad,
District Bijnor, U.P, admeasuring 1500 sq. yds. which has been leased out
to M/s. Ghai Housing and Agro Industries Pvt. Ltd. and which was
inducted as a tenant in the premises by the late father of the parties during
his lifetime as mentioned in para no.36 of the plaint.
7. These are clear and specific averments made in the plaint that the
plaintiff is in part possession of the estate comprising of several
properties of which he is seeking partition. Learned counsel for the
defendants has not pointed out to any plea set up by the defendants of the
clear ouster of the plaintiff from the entire estate.
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:31.01.2022
18:12:26
8. In these circumstances, despite the technicalities that have been
pointed out by the learned counsel for the defendant/respondent and
particularly in view of the fact that an application under Order VII Rule
11 CPC is also pending, the delay in filing the appeal is condoned and the
appeal is allowed. The order of the learned Joint Registrar directing the
plaintiff to pay deficient Court Fees is set aside.
9. It is underlined that when an objection as to adequacy of Court
Fees is raised, it is incumbent upon the learned Joint Registrar to consider
the question independently of any objections recorded by the Registry
and to pass appropriate orders.
10. The appeal is, accordingly, allowed.
11. List before the Joint Registrar on 20th April, 2022.
12. The order be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
JANUARY 31, 2022
ak
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:31.01.2022
18:12:26
