Smt. Manpreet Gill Maini vs Baldeep Kaur Siddhu
2024 Latest Caselaw 6662 MP

Madhya Pradesh High Court

Smt. Manpreet Gill Maini vs Baldeep Kaur Siddhu on 5 March, 2024

                                                                1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                         FA No. 2385 of 2023
                                  (SMT. MANPREET GILL MAINI AND OTHERS Vs BALDEEP KAUR SIDDHU AND OTHERS)

                           Dated : 05-03-2024
                                  Ms. Amrit Kaur Ruprah - Advocate for the appellants.

                                       Reserved on          :       30.01.2024
                                       Pronounced on        :       05.03.2024


                                  I.A. No.360/2021 application for amendment under Order 6 Rule 17 of

                           CPC is filed for amendment in cause title of memorandum of appeal. Proposed
                           amendment is regarding reduction of liability to pay Court fee.
                                  Facts in brief are that appellants-plaintiffs filed a civil suit on 26.03.2018

with a prayer for partition of the entire properties and allotting 1/4th share of the each appellants.

Respondents-defendants filed an application under Order 7 Rule 11 of CPC for rejection of the plaint on the ground that property no.(e) was outside the territorial jurisdiction of the Civil Court and property no.(a), (b), (c) and (d) were not described as per requirement of Order 7 Rule 3 of CPC and also that

property no.(a) and (b) were ancestral properties and other siblings of Manmohan Singh were not made a party and the suit plaint was hit by non- joinder of party.

Appellants-plaintiffs opposed the prayer and also filed an application under Order 6 Rule 17 of CPC relinquishing their claim over the property situated out of the territorial jurisdiction of the District Judge, M.P. Trial Court vide order dated 25.09.2023 rejected the plaint holding that it has no jurisdiction over the property situated at Amritsar and also that the suit is

hit by non-joinder of necessary party.

Challenging the order, First Appeal no.2385/2023 was filed valuing the relief of declaration at Rs.2,000/- and payable Court fees Rs.1,000/- and for partition valuing the claim as Rs.3,00,00,000/- and payable Court fees Rs.1,50,000/-. Later on, plaintiffs filed an application I.A. No.360/2024 under Order 6 Rule 17 of CPC for substituting the total Court fees paid Rs.1,030/- instead of Rs.1,51,000/-.

Appellants have based their arguments referring to L. Rathanchand Sarma vs. M/s. Vinayaka Exports & Imports, LAWS(MAD)-2017-8-118 . Relevant para-24 of the judgment is being referred as under :-

"24. In find the objections raised by the Registry regarding the Court Fee payable could be answered as follows:

1 ) It is Article 1 Schedule I that would apply for deciding the Court Fee payable in an appeal against an order rejecting a plaint.

2) The Subject matter of the appeal filed against an order rejecting the plaint is not the same as the subject matter in the main suit.

3 ) The subject matter in the appeal against an order rejecting the plaint is only if the right of the plaintiff to maintain the suit and nothing more.

4 ) Such a right to maintain a suit being incapable of valuation the Court Fee that is payable would be the minimum Court Fee that is paid on the application for rejection of plaint before the Trial Court.

5) The fact that an appeal against an order rejecting the plaint is numbered as regular appeal cannot be a deciding factor for the purposes of Court Fee payable in such appeals."

In. M.G. Tipnis v. Union of India, AIR 1970 MP 5 , it is held that in a case where memorandum of appeal is filed against an order rejecting a plaint under O.7.R.11 (a) and (d) of the Civil P.C., what has to be valued is the

subject matter involved and not the abstract question of law raised for consideration in appeal. The subject-matter of appeal is not different even in case of appeals against rejection of plaints under O.7.R. 11(a) and (d) of the Civil P.C. On these grounds because it will be readily seen that the real relief involved in either case is the same, namely, reversal of the decree or order of rejection of plaint having the effect of a decree and remand of the suit for trial on merits for the purpose of granting the relief's claimed in the plaint. Court-fee payable in such a case is governed by Sch. I, Art. 1 of the Court-fees Act, 1870 and it must be ad valorem on the subject-matter in dispute in appeal which is the same as that in the Court of first instance.

I n Apparao v. Msa. Bhagubai and others, AIR 1949 Nagpur 1 (FB), it is held that in memo of appeal filed against rejection of a plaint under Order 7 Rule 11 (c) CPC should bear ad valorem Court Fee on the difference between the Court Fees paid and the Court Fees demanded by the lower Court.

The reasons as mentioned in para-19 of the L. Rathanchand Sarma (supra) case not to follow the judgment of the M.G. Tipnis (supra) case is that in M.G. Tipnis (supra) case the M.P. High Court has dissented from the Division Bench of the Madras High Court and Single Bench was bound to follow the Division Bench of Madras High Court. On the same line, this Court has to follow the Division Bench of Madhya Pradesh High Court reported in

AIR 1970 MP 5 and in the light of AIR 1970 MP 5, the prayer for amendment through I.A. no.360/2024 is rejected.

The matter be put before the Office to cure the defect regarding Court fees.

(GAJENDRA SINGH)

JUDGE HK