Rajendra Singh Chauhan vs Smt Badami Devi Chauhan
2021 Latest Caselaw 983 MP

     THE HIGH COURT OF MADHYA PRADESH 1
                     MP 541/2021
 Rajendra Singh Chauhan Vs. Smt. Badami Devi Chauhan

Gwalior, Dated :23/03/2021

       Shri Anvesh Jain, Counsel for the petitioner.

       Shri HK Agrawal, Counsel for the respondent.

This miscellaneous petition under Article 227 of

Constitution of India has been filed against the order dated

25/01/2021 passed by 6th Civil Judge, Class-II, Gwalior in RCSA

No.536A/2020, by which the application filed by the petitioner

under Order 7 Rule 11 of CPC has been rejected on the ground

that the question of payment of Court fee as well as the valuation,

is a mixed question of fact and law which can be decided only

after recording the evidence.

The necessary facts for disposal of present petition in short

are that the respondent had filed a suit for declaration of title and

vacant possession as well as for permanent injunction against the

petitioner on the ground that she is the owner and is in possession

of House No.35/339 (renumbered as 270 Zone/Ward No.20/51 in

Ward No.2) situated in Gwalior. She has purchased the said house

by registered sale deed dated 09/02/1970. It is the case of the

plaintiff that the the said house was purchased out of Stridhan of

respondent and was not purchased by her husband in her name

and, therefore, the petitioner who is her son, has no right or title

over the property in dispute during her lifetime. In spite of that, THE HIGH COURT OF MADHYA PRADESH 2 MP 541/2021 Rajendra Singh Chauhan Vs. Smt. Badami Devi Chauhan

the petitioner is residing in the house as an encroacher without

making payment of mesne profit. It was further pleaded that the

petitioner along with wife and children use to quarrel with

respondent and use to behave with her indecently. The petitioner

is also not making payment of mesne profit for the purpose of

repairs of house and accordingly, the respondent does not wish to

keep the petitioner in her house. The respondent had also sent a

notice dated 24/07/2020 in this regard, however, the petitioner

has replied on the basis of false facts. It was further pleaded that

the petitioner has no legal right in the property during the life

time of respondent. The petitioner has never challenged the title

of the respondent and after death of his father, he is not entitled to

claim any share. It was further pleaded that the respondent has not

partitioned the property and has not relinquished her right or title

in the property and, therefore, the claim of the petitioner that he

has 1/5th share in the property, is contrary to law. It is further

pleaded that the respondent could have fetched mesne profit @

Rs.5,000/- per month but in spite of receiving the registered

notice, the petitioner has not paid the mesne profit @ Rs.5,000/-

per month and accordingly, the suit has been filed for the

following reliefs:-

v ;g fd] ?kksf"kr fd;k tkos fd] okfnuh oknxzLr THE HIGH COURT OF MADHYA PRADESH 3 MP 541/2021 Rajendra Singh Chauhan Vs. Smt. Badami Devi Chauhan

lEifRr dh LoRo] LokfeRo ,oa vkf/kiR;/kkfj.kh gksdj izfroknh ls fjDr vkf/kiR; izkIr djus dh vf/kdkfj.kh gSA c okfnuh ds fgr esa izfroknh ds fo:) LFkk;h fu"ks/kkKk bl vk'k; dh] fd izfroknh oknxzLr Hkou Hkkx dh rksMQksM u rks Lo;a djs vkSj uk fdlh vU; O;fDr ls djkos ,oa fdlh vU; O;fDr dks vf/kokflr u djs] ,slh LFkk;h fu"ks/kkKk izfroknh ds fo:) okfnuh ds i{k esa tkjh dh tksA Lk ;g fd] ehal [email protected] [email protected]& ¼ikap gtkj½ :i;s izfrekg rhu o"kZ 36 ¼NRrhl½ ekg½ dk okfnuh izfroknh ls izkIr djus dh vf/kdkfj.kh gSA n okn O;; okfnuh dks izfroknh ls fnyok;k tkosA bZ ;g fd] vU; U;k;ksfpr lgk;rk tks Jheku~ U;k;ky;

izdj.k dh ifjfLFkfr;ksa esa mfpr ,oa vko';d le>s okfnuh ds fgr esa iznku djk;h tkosA

The petitioner filed an application under Order 7 Rule 11 of

CPC on the ground that the respondent has claimed the

possession of the property in question and in absence of proper

Court fee, the suit is not maintainable. The respondent should

have valued the suit in accordance with the provisions of Section

7(v) of the Court Fees Act. It was further pleaded that if the

petitioner is in possession of the property in the capacity of

tenant, then she has an efficacious remedy of filing an application

under Section 23 of MP Accommodation Control Act or filing a

suit for eviction under the MP Accommodation Control Act.

Per contra, the application was vehemently opposed by the

plaintiff.

The Trial Court by the impugned order dated 25/01/2021

has rejected the application on the ground that the question of THE HIGH COURT OF MADHYA PRADESH 4 MP 541/2021 Rajendra Singh Chauhan Vs. Smt. Badami Devi Chauhan

valuation as well as the question of Court fee is a mixed question

of fact and law which can be adjudicated only after the evidence

is recorded.

Challenging the order passed by the Court below, it is

submitted by the Counsel for the petitioner that the question of

Court fee is not a mixed question of fact and law. Whether the

plaintiff is required to pay ad valorem Court fee or fixed Court

fee, is a pure question of law. The Trial Court should not have

held that the question of valuation and Court fee is a mixed

question of fact and law.

Per contra, the petition is opposed by the Counsel for the

respondent. It is submitted by Shri HK Agrawal, that the

petitioner is deliberately not filing the written statement and he

can raise all the objections in his written statement.

Heard the learned Counsel for the parties.

It is well-established principle of law that the application

under Order 7 Rule 11 of CPC has to be decided on the basis of

pleadings made in the plaint and the defence of the defendant

cannot be taken into consideration. Therefore, it is incorrect to

say on the part of the respondent that the petitioner can raise an

objection with regard to insufficiency of Court fee in his written

statement. The application under Order 7 Rule 11 of CPC without THE HIGH COURT OF MADHYA PRADESH 5 MP 541/2021 Rajendra Singh Chauhan Vs. Smt. Badami Devi Chauhan

filing a written statement is maintainable.

While deciding the application filed under Order 7 Rule 11

of CPC, the trial Court is required to look into the pleadings of

the plaintiff in his/her plaint. A blanket observation cannot be

made that the payment of Court fee is a mixed question of fact

and law. The Trial Court is required to look into the pleadings

made in the plaint and has to adjudicate as to whether proper

Court fee has been paid or not ? This Court is of the considered

opinion that the Trial Court should have decided the question as

to whether the plaintiff has properly valued the suit or not; and as

to whether the plaintiff has paid the proper Court fee or not ?

The facts of the judgment passed by the Coordinate Bench

of this Court in the case of Pramila Mule vs. K.B. Baburao

reported in 1987(I) MPWN (91) are distinguishable. In the said

case, the plaintiff had valued the suit at Rs.24,475/- which was

disputed by the defendant. The High Court while deciding the

said case came to a conclusion that under the hire purchase

agreement, the possession of the defendant continues to be that of

a hirer for the period of the agreement. Accordingly, it was held

that the plaintiff was not required to value the relief of possession

under Section 7(v) of the Court Fees Act and further, the Trial

Court had not shut out the defendant no.2 from raising the plea THE HIGH COURT OF MADHYA PRADESH 6 MP 541/2021 Rajendra Singh Chauhan Vs. Smt. Badami Devi Chauhan

relating to under-valuation of the suit.

The Counsel for the respondent has also relied upon the

judgment passed by the Division Bench of this Court in the case

of Shadab Grih Nirman Sahakari Sanstha Maryadit, Bhopal

vs. Parita Griha Nirman Sahakari Samity Maryadit, Bhopal

and Another, reported in 2007(2) MPLJ 52.

The facts of the said case are distinguishable. In the said

case also, this Court in the first round of litigation, has held that

the plaintiff is required to pay ad valorem Court fee and the only

question which was required to be adjudicated in the said case

was as to whether the market value assessed by the plaintiff at

Rs.18 lac was proper or it was under-valued, because the case of

the defendant was that the valuation of land has increased to Rs.8

crores. Under these circumstances, the Division Bench of this

Court held that the question of valuation of suit cannot be decided

as a preliminary issue and must be adverted only at the time of

final decision after recording the evidence.

In the present case, the plaintiff has valued the suit on the

basis of 12 times of monthly rent i.e. Rs.60,000/-. It is not the

case of eviction under the MP Accommodation Control Act. The

Trial Court has not decided as to whether the valuation done by

the respondent on the basis of 12 times of monthly rent is proper THE HIGH COURT OF MADHYA PRADESH 7 MP 541/2021 Rajendra Singh Chauhan Vs. Smt. Badami Devi Chauhan

or not and as to whether the valuation is to be made on the market

value of the property and has also not decided as to whether the

Court fee paid by the plaintiff is proper or not?

Under these circumstances, the order 25/01/2021 passed

by 6th Civil Judge, Class-II, Gwalior in RCSA No.536A/2020 is

hereby set aside. The matter is remanded back to the Trial Court

to decide the application under Order 7 Rule 11 of CPC afresh.

With aforesaid observations,this petition is finally disposed

of.

(G.S. Ahluwalia) Judge

MKB

MAHENDRA KUMAR BARIK 2021.03.25 17:15:04 +05'30'