Madhya Pradesh High Court
Ashwin Shah vs Sanjay Kumar on 15 February, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 15th OF FEBRUARY, 2024
MISC. PETITION No. 430 of 2023
BETWEEN:-
ASHWIN SHAH S/O LATE SHRI
RAMNIKLALJI SHAH, AGED ABOUT 44
1. YEARS, OCCUPATION: BUSINESS R/O
TRILOK NAGAR TEHSIL MANDSAUR
(MADHYA PRADESH)
PANKAJ KUMAR S/O LATE SHRI
RAMNIKLALJI SHAH, AGED ABOUT 46
YEARS, OCCUPATION: BUSINESS R/O
2.
GARMENT SHOP SHAH GARMENT
SAMRAT ROAD TRILOK NAGAR DISTT.
MANDSAUR (MADHYA PRADESH)
.....PETITIONERS
SHRI POURUSH RANKA, ADVOCATE
AND
SANJAY KUMAR S/O RAMNIKLALJI SHAH,
AGED ABOUT 49 YEARS, OCCUPATION:
BUSINESS R/O CHAUDHARY COLONY
MANDSAUR AT PRESENT DEEPSHIKHA
APRTMENT FLAT NO. 304, KALAKHET
GAUTAM NAGAR MANDSAUR (MADHYA
PRADESH)
.....RESPONDENTS
SHRI VINAY GANDHI, ADVOCATE
MISC. PETITION No. 432 of 2023
BETWEEN:-
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 05-03-2024
18:20:38
2
ASHWIN SHAH S/O LATE SHRI
RAMNIKLALJI SHAH, AGED ABOUT 44
1. YEARS, OCCUPATION: BUSINESS TRILOK
NAGAR, TEHSIL MANDSAUR (MADHYA
PRADESH)
PANKAJ KUMAR S/O LATE SHRI
RAMNIKLALJI SHAH, AGED ABOUT 46
YEARS, OCCUPATION: BUSINESS R/O
2.
GARMENT SHOP SHAH GARMENT
SAMRAT ROAD TRILOK NAGAR DISTT.
MANDSAUR (MADHYA PRADESH)
.....PETITIONERS
SHRI POURUSH RANKA, ADVOCATE
AND
SANJAY KUMAR S/O RAMNIKLALJI SHAH,
AGED ABOUT 49 YEARS, OCCUPATION:
BUSINESS CHAUDHARY COLONY,
MANDSAUR AND AT PRESENT,
DEEPSHIKHA APARTMENT, FLATNO. 304,
KALAKHET, GAUTAM NAGAR, MANDSAUR
(MADHYA PRADESH)
.....RESPONDENT
SHRI VINAY GANDHI, ADVOCATE
These miscellaneous petitions coming on for order this day,
the court passed the following:
ORDER
1. This order shall also govern the disposal of M.P.No.430/2023
as well, as in both the cases, identical issues are involved, however
both the cases have arisen out of different suit
(RCS.A.No.121/2022 and RCS.A.No.131/2022). For the sake of
convenience, the facts as narrated in M.P.No.432/2023 have been
taken into consideration.
2. These miscellaneous petitions have been filed by the
petitioners/plaintiffs under Article 227 of the Constitution of India
against the order dated 16.12.2022 passed in RCS-A.No.121/2022
by the IV Civil Judge, Junior Division Mandsaur, Ditrict
Mandsaur;whereby, an application filed by the petitioners/plaintiffs
under Order 7 Rule 11 of the Code of Civil Procedure, 1908
(hereinafter to be referred to as "CPC") in respect of the counter
claim filed by the respondent/defendant, has been rejected.
3. In brief facts of the case is that the petitioner/plaintiffs have
filed a suit for declaration and permanent injunction, on the basis of
a will executed by their mother, and in the aforesaid suit the
respondent/defendant, who is the brother of the plaintiffs has also
filed a counter claim seeking declaration, injunction, partition and
separate possession in respect of the same property.
4. In the aforesaid suit, in respect of the defendant's counter
claim an application (Annexure P-4) under Order 7 Rule 11 of the
CPC was filed raising an objection regarding the Court fees paid
by the defendant in support of his counter claim as the plaintiffs'
contention was that on account of the valuation of the counter
claim, the suit is liable to be dismissed, and also in respect of
partition,no Court fees has been paid, and no valuation has been
done.
5. The aforesaid application has been opposed by the
respondent/defendant and a reply has been filed (Annexure P-5)
stating that they are not seeking partition by way of counter claim
and other wise also the proper Court fees has been paid. The
aforesaid application was rejected by learned judge of the trial
Court holding that proper Court fees has been paid on the valuation
of the counter claim.
6. Counsel for the petitioners has assailed the aforesaid order
stating that there was a specific averment made by the defendant in
the counter claim that he is seeking the partition, whereas in the
reply to application filed under Order 7 Rule 11 CPC he has denied
that he is not seeking partition, and if that was the case, in that
case this Court can also record their admission that they are not
seeking partition.
7. Counsel has also submitted that the provisions of section 7(6)
(a) of the Court Fees Act, 1870 would be applicable in the present
case which relates to payment of the Court fees for suit for
partition.
8. In support of his submission, counsel for the petitioners has
relied upon a judgment rendered by the Hon'ble Supreme Court
in the case of Kamleshwar Kishore Singh Vs. Paras Nath Singh
and others reported as AIR 2002 SC 233 and also by the
Madhya Pradesh High Court in the case of Ramvilash and
another vs. Om Prakash And others reported as 2015 AIR
CC1191 (MP).
9. Prayer is opposed by learned counsel for the
respondent/defendant and it is submitted that even if the defendant
has wrongly mentioned the fact that he is not seeking partition the
same cannot be read into the counter claim while considering the
application under Order 7 Rule 11 of the CPC.
10. Counsel for the respondent/defendant has also drawn the
attention of this Court that the defendant is only specifically
seeking relief only in respect of property which is also claimed by
the petitioners/plaintiffs in the suit, and it is clearly stated that
entire property is agricultural land and has valued the property as
agricultural land which is applicable to agricultural land and has
also paid the Court fees accordingly, and the defendant's case is no
different that the land is agricultural and he has already paid more
Court fees than what is required under the Act. It is also submitted
that even otherwise it is disputed question of fact which can be
decided by the trial Court after the evidence is led by the parties.
11. In rebuttal, counsel for the petitioners/plaintiffs has submitted
that in the counter claim the respondent/defendant has made proof
in respect of the plots and shops which do not fall in the category
of agricultural land thus, the impugned order is liable to be
quashed.
12. Heard the learned counsel for the parties and perused the
record.
13. From the record it is found that the petitioner/plaintiff has
challenged the court fees paid by the defendant on his counter
claim in respect of same set of property which is subject matter of
the suit itself, and according to the plaintiff the entire property is
not agricultural land but also includes buildings, shops etc.
14. In the considered opinion of this court, admittedly the
defendant/respondent happens to be the brother of the
plaintiff/petitioner, and has sought partition of the suit property,
thus, even if he has sought possession of the suit property, whether
he is entitled to pay the ad valorem court fees on the same or not is
a disputed question of fact which can be gone into by the learned
judge of the trial Court itself at the time of deciding the suit.
14. In view of the same, the impugned order dated 16.12.2022
does not appear to suffer from any illegality or jurisdictional error.
15. With the aforesaid observation, both the miscellaneous
petitions being devoid of merits are hereby dismissed
(SUBODH ABHYANKAR)
JUDGE
das
