Punjab-Haryana High Court
Ravinder Malhotra And Anr vs Ravi Kumar Malhotra And Anr on 5 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:031326
CR-607-2021(O&M) 1 2024:PHHC:031326
109 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-607-2021(O&M)
Reserved on: 29.01.2024
Date of decision: 05.03.2024
Ravinder Malhotra and another
....Petitioners
Versus
Ravi Kumar Malhotra and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Kunal Dawar, Advocate for the petitioners
Mr. V.K.Sachdeva, Advocate for the respondents
ANIL KSHETARPAL, J
1. Refusal on the part of the trial court to reject the plaint
while dismissing the petitioners' (defendants before the trial court)
application under Order VII Rule 11 of the Code of Civil Procedure,
1908 (hereinafter referred to as 'CPC') on the payment of the alleged
deficiency of ad valorem court fee has prompted the defendants to file
this revision petition.
2. In order to comprehend the issue involved in the present
case, some relevant facts, in brief, are required to be noticed.
3. The respondents (plaintiffs) filed a suit for partition of
accounts and injunction with respect to residential house no.46-A, Sector
40, measuring 220 square yards located in Gurugram, Haryana. It was
claimed that the plaintiffs and defendants are co-sharers in equals. It
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was claimed that the plaintiffs are residents of United States of America
but they are in actual physical possession of the second floor of the
premises. For the purposes of jurisdiction, the present suit was valued at
Rs.2 crores and for the purpose of account, it was valued at Rs.360.
Fixed court fee was paid on the relief of partition of account and
injunction. The defendants filed an application under Order VII Rule 11
CPC to reject the plaint. The learned trial court by passing a speaking
order has dismissed the application.
4. Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook, alongwith the
requisitioned record.
5. Learned counsel representing the petitioners contends that it
is the case of the plaintiffs in the plaint that they are residing in United
States of America. Although the plaintiffs are claiming that they are in
actual physical possession of the second floor of the premises, however,
they cannot be in actual possession. He further submits that the
plaintiffs are required to pay ad valorem court fee on the market value of
their share in the property. He relies upon the following judgments:-
i) S.Rm.Ar.S.Sp. Sathappa Chettiar vs.
S.Rm.Ar.Rm. Ramanathan Chettiar 1958 AIR
(SC) 245
ii) Neelavathi and others vs. N.Natarajan and others
1980 AIR (SC) 691
iii) Kinny Kapur & another vs. Gunveer Kapur & ors
C.A.885 of 2012 decided on 12.09.2017
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6. On the other hand, the learned counsel representing the
respondents submits that the respondents are co-owners of the property
and the possession of one co-owner is the possession of all in law, unless
ouster or exclusion is proved. He submits that ad volrem court fee is not
payable in view of the judgment passed by the Full Bench in Asa Ram
and others vs. Jagan Nath and others 1934 AIR (Lahore) 563, Diwan
Chand vs. Dhani Ram and others 1941 AIR (Lahore)123, Rajiv
Kumar and others vs. Rakesh Kumar and others 2015 (4) PLR 191
and Raghbir Singh vs. Sukhwinder Singh and others 2017 (4) PLR
735.
7. Before this Court proceeds to examine the contentions of
the learned counsel representing the parties, it is important to note that
the revision petition filed by the defendants is not maintainable. The
objection of the defendants for direction to the plaintiff to pay ad
valorem court fee has been rejected. Reliance in this regard can be
placed on Ratnavermaraju vs. Smt. Vimla AIR 1961 SC 1299.
Subsequently, the Kerala High Court once again held that an appeal or
revision petition shall not be maintainable by the defendants unless it
affects the jurisdiction of the Court. This view was approved by the
Supreme Court in Shamsher Singh vs. Rajinder Prashad (1973) 2
SCC 523. On the basis of the aforesaid judgment of the Supreme Court,
a Full bench in Arjun Motors Malout Partnership Firm vs. Girdhara
Singh 1978 PLJ 36 followed the same view. Thus, it is evident that the
revision petition by the petitioners, who are defendants before the trial
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court, is not maintainable because in this case, the jurisdiction of the
court is not dependent on the amount of court fee.
8. In any case, this Court has carefully read the judgments
relied upon by the learned counsel representing the petitioners. In
Sathappa Chettiar's case (supra) the appellant had offered to file an
application for formal amendment of his plaint by substituting
Rs.50,000/- in place of Rs.15 lacs for jurisdictional value of his relief.
The application was rejected by the court. The Supreme Court held that
such view was not correct. In para 13 of the report, the Court held that
the decision reached by the Division Bench under Section 5 of the Act
must be held to be final and the Supreme Court has not allowed the
merits of this order to be questioned in the appeal. Hence, the aforesaid
judgment is in the peculiar facts of the case. The next judgment relied
upon by the learned counsel in Leelawati's case (supra) is in the context
of expression 'excluded from possession' in the context of court fee.
The Supreme Court held that even if the plaintiffs could not remain in
joint possession as he was not given any income from the joint family
property, still it would not amount to his exclusion from possession.
9. The Kinny Kapur's case (supra) is an order passed by the
Supreme Court. In the aforesaid case, the Supreme Court only examined
the aspect of the plaintiff's liability to pay the ad volorem court fee
according to his share in the property. The court held that the High
Court erred in law in asking the payment of court fee on the valuation of
the entire suit property. With greatest respect, in the aforesaid case, the
Supreme Court had occasion to consider the liability to pay the ad
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valorem court fee in a partition suit where a co-sharer is presumed to be
in constructive possession of the property.
10. Keeping in view the aforesaid discussion, this Court does
not find it appropriate to interfere with the order passed by the trial
court. However, the question of liability to pay ad valorem court fee is
kept open and the defendants shall have liberty to pray to the trial court
for framing a distinct issue on this aspect of the matter. Needless to
observe that observations made by the trial court in the impugned order
or by this Court shall not be construed as final expression on the merits
of the case and the trial court while deciding the case shall
independently decide the matter. Disposed of.
11. All the pending miscellaneous applications, if any, are also
disposed of.
05.03.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:031326
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