Satish Choudhary vs Lrs Of Shanno Devi ...
2023 Latest Caselaw 7664 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11916/2023

Satish Choudhary S/o Late Ramnath Choudhary, Aged About 67 Years, By Caste Choudhary, Profession Doctor, Resident Of Chak 24 G.b., Tehsil Sri Vijaynagar, District Sri Ganganagar, (Rajasthan) At Present Office Address P 36/8 I.a.m. Officers Enclave, Airport Exit Road, Vimanpura, Post Bangalore, At Present Residing At Flat 2148, Shobha Garrison Apartment, Tumkur Road, Nagasandra Post, Bengaluru (Karnataka).

----Petitioner Versus

1. Lrs Of Shanno Devi, W/o Late Ramnath Choudhary, Through-

1/1. Suchitra Choudhary W/o Late Sudesh Choudhary, Chak 24 Gb, Tehsil Sri Vijaynagar, District Sri Ganganagar (Rajasthan).

1/2. Sumit Choudhary S/o Late Sudeh Choudhary, Chak 24 Gb, Tehsil Sri Vijaynagar, District Sri Ganganagar (Rajasthan).

1/3. Swati Choudhary D/o Late Sudesh Choudhary, Chak 24 Gb, Tehsil Sri Vijaynagar, District Sri Ganganagar (Rajasthan).

1/4. Suresh Choudhary S/o Ramnath Choudhary, D-121 Rijpud Estate, Dlf Faiz, Gurgaon (Haryana) At Present Plot No.44, Palm Court Colony, Jagatpura, Jaipur. 1/5. Sushil Choudhary S/o Late Ramnath Choudhary, 7/126, Malviya Nagar, District Jaipur, (Rajasthan). 1/6. Sudhir Choudhary S/o Late Ramnath Choudhary, 5, Ashok Vihar, Opposite Tagore Nagar, Ajmer Road, Presently Residing At 56, Aasha Vihar, Near Vishnu Garden Marriage Place, Ajmer Road, Jaipur, (Rajasthan).

2. Sushil Choudhary S/o Late Ramnath Choudhary, 7/126, Malviya Nagar, District Jaipur, (Rajasthan).

3. Lrs Of Sudesh Choudhary, S/o Ramnath Choudhary, Through-

3/1. Suchitra Choudhary W/o Late Sudesh Choudhary, Chak 24 Gb, Tehsil Sri Vijaynagar, District Sri Ganganagar

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(Rajasthan).

3/2. Sumit Choudhary S/o Late Sudesh Choudhary, Chak 24 Gb, Tehsil Sri Vijaynagar, District Sri Ganganagar (Rajasthan).

3/3. Swati Choudhary D/o Late Sudesh Choudhary, Chak 24 Gb, Tehsil Sri Vijaynagar, District Sri Ganganagar (Rajasthan).

4. Suresh Choudhary S/o Ramnath Choudhary, D 121 Rizpud Estate, D L F Faiz, Gurgaon (Haryana), Presently Resident Of House No.44 Palm Court Colony, Jagatpura, Jaipur (Rajasthan).

5. Sudhir Choudhary S/o Late Ramnath Choudhary, 5, Ashok Vihar, Opposite Tagore Nagar, Ajmer Road, District Jaipur, Presently Residing At 56, Aasha Vihar, Near Vishnu Marriage Garden Place, Ajmer Road, Jaipur, (Rajasthan).

6. The Registrar (Document), Sri Ganganagar (Rajasthan).

7. The Deputy Registrar (Document), Sri Vijaynagar, District Sri Ganganagar (Rajasthan).

8. Umesh Sharma S/o Nemichand Sharma, By Caste Brahmin, Resident Of Sri Vijaynagar, District Sri Ganganagar (Rajasthan).

9. Manju Devi W/o Atal Bihari Pareek, By Caste Brahmin, Resident Of Sri Vijaynagar, District Sri Ganganagar (Rajasthan).

10. Shagun Choudhary D/o Sushil Choudhary, Narangaha Organic Living, 25 Murgi Farm, Vpo Hasampura Vaas Nevta, Tehsil Sanganer, District Jaipur, Pin 302029 (Rajasthan). (Party As Per Order 22, Rule 10 Cpc).

                                                                     ----Respondents


For Petitioner(s)              :    Mr. Trilok Joshi.
For Respondent(s)              :    Mr. CS Kotwani assisted by Mr.
                                    Aakash Kukkar and Ms. Swati
                                    Shekhar.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

26/09/2023

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1. The instant writ petition has been preferred claiming the

following reliefs:-

"It is, therefore, most humbly and respectfully prayed that this Writ Petition may kindly be allowed and by an appropriate writ Order or direction the Order dated 24.07.2023 (Annexure P/15) passed by the learned Senior Civil Judge, Sri Vijaynagar in Civil Suit No.06/2005 titled as "Satish Choudhary V/s Lrs of Shanno Devi" may kindly be quashed and set aside.

By an appropriate writ Order or direction the application dated 20.07.2023 (Annexure-P/14) may kindly be dismissed."

2. Mr. Trilok Joshi, learned counsel for the petitioner submits

that the petitioner-plaintiff filed a civil suit for declaring the Will as

null and void dated 09.05.1997 and the prayer included granting

permanent injunction to prohibit alienation of the property in

dispute on 02.07.2004.

3. Learned counsel for the petitioner further submits petitioner

has moved an application under Order 7 Rule 11 of the CPC for

dismissal of the suit for insufficient court-fee.

4. Learned counsel for the petitioner has tried to show this

Court the difference between Section 24-(b) and 24-(e) of the

Rajasthan Court Fees and Suits Valuation Act, 1961. Section 24 of

the Rajasthan Court Fees and Suits Valuation Act, 1961 reads as

follows:-

"24. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25-

(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property, subject to a minimum fee of twenty rupees;

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(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property, subject to a minimum fee of twenty rupees;

(c) where the prayer relates to the plaintiffs exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued In the plaint subject to a minimum fee of forty rupees;

(d) where the prayer is for a declaration with reference to any property and no consequential relief is prayed for, fee shall be computed on the market value of the property, subject to a minimum fee of twenty rupees;

(e) in other cases whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint, subject to a minimum fee of twenty-five rupees."

5. Learned counsel for the petitioner also submits that the

issues were framed by the learned trial court way back on

01.11.2018 and thereafter also about five years have passed and

issue No.2 was pertaining to the court-fee and thus, this could

have been decided on its own merits at appropriate stage.

6. Learned counsel Mr. CS Kotwani assisted by Mr. Aakash

Kukkar and Ms. Swati Shekhar appearing on behalf of the

respondents submits that on bare reading of Section 24 of the

Rajasthan Court Fees and Suits Valuation Act, 1961 alongwith the

prayer made by the petitioner-plaintiff in his suit, it becomes clear

that the petitioner should have properly evaluated his court-fee

before filing the suit in question.

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7. Learned counsel for the respondents has relied upon

following judgments:-

(i) Smt. Bishun Shri Vs. Smt. Suraj Mukhi & Ors. passed by

Hon'ble Allahabad High Court (First Appeal No. 454 OF 1955,

decided on 23.02.1966).

(ii) Shri Sainik Kshetriya Mali Samaj Vs. Baba Ramdev Vikas

Samiti & Ors. passed by this Court (S.B. Civil Writ Petition

No.6031/2008) decided on 29.01.2009.

(iii) Mrs. Mildred D'silva & Ors. Vs. Noel D'silva & Ors. passed

by Jaipur Bench of this Hon'ble Court (S.B. Civil Revision

Petition No.2) decided on 26.04.2019.

(iv) Mallu Ram Swami Vs. Ravi Khurana & Ors. passed by a

coordinate Bench of this Hon'ble Court (S.B. Civil Writ Petition

No.18568/2019) decided on 15.01.2020.

8. Learned counsel for the respondents also submits that if the

application under Order 7 Rule 11 of the CPC itself provides for

rejection of the plaint on count of the relief claimed being

undervalued.

8.1 Learned counsel for the respondents also objected to the

jurisdiction under order 7 Rule 11 of CPC, as the remedy would be

of filing a revision.

9. This Court, after hearing learned counsel for the parties and

perusing the material available on record, finds that the valuation

can be a bone of contention between the parties, but the learned

trial court should take into consideration the stage at which such

issue of valuation of court-fee has been raised. An inordinate delay

in raising the issue, particularly, when the same has been framed

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as one of the issue cannot be permitted and looses its significance

with the efflux of time for preliminary determination.

10. In the opinion of this Court, the original civil suit, which is

pending for last 19 years and for which no objection was raised

ever for any kind of court-fee then suddenly filing the application

under Order 7 Rule 11 of the CPC at this stage even when the

complete adjudication of this point can be done by the learned

trial court, while deciding the issues, which have already been

framed about 5 years ago, and in which, issue No.2 regarding the

incomplete court-fee has already been framed. The learned trial

court should not have granted indulgence in application under

Order 7 Rule 11 of the CPC.

11. This Court does not wish to enter into the bone of contention

regarding the Court fee to be paid by the petitioner, as the same

has not been contested by the petitioner in the present impugned

order, but on the limited count that after 19 years application

under Order 7 Rule 11 of the CPC cannot be invoked on ground of

court-fee without raising a whisper for 19 years except to get it

framed as an issue five years ago, which in the opinion of this

Court is an inordinate delay not explained by the respondents,

does not call for any interference by the learned trial court.

11.1 Ordinarily, this Court could have accepted such an objection,

but in the peculiar case, which is an impugned order whereby the

suit has neither been dismissed nor the application under Order 7

Rule 11 CPC has been dismissed, but a conditional order has been

made, it is appropriate not to further delay the 19 years old

proceedings by sending it here and there and thus, the power

under Article 227 of the Constitution of India is exercised.

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12. At this stage, learned counsel for the respondents submits

that the issue No.2 may be decided as a preliminary issue.

12.1 This Court does not find any requirement or any necessity at

this stage for deciding the issue No.2, at preliminary stage after

19 years of pendency. Hence, the prayer is rejected, however,

when all the issues are taken up, the issue No.2 pertaining to

court-fee shall be taken up. In the interest of justice, it is directed

that the trial be expedited.

13. In light of the aforesaid observations, the writ petition filed

by the petitioner-plaintiff is allowed. The impugned order dated

24.07.2023 (Annex.P-15) passed by the learned Senior Civil

Judge, Sri Vijaynagar in Civil Suit No.06/2005 is quashed and set

aside. Both the parties shall be free to raise their contentions on

merits when the issue No.2 regarding the court-fee is adjudicated

by the learned trial court.

14. All pending applications also stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

37-/Jitender//-

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