Sambhu Nath Sharma And Others ... vs Sudha Rani Sharma ...Plaintiff/
2021 Latest Caselaw 1584 UK

              HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
                     Writ Petition No.898 of 2021 (M/S)

Sambhu Nath Sharma and others                             .....Defendants/Petitioners

                                            Vs.

Sudha Rani Sharma                                               ...Plaintiff/Respondent


Advocate: Mr. Siddhartha Singh, Advocate for the petitioners.


Hon'ble Sharad Kumar Sharma, J.

The petitioners before this Court are defendants in Suit for partition, which was instituted by the plaintiff/respondent before the Court of Civil Judge (Jr. Div.), Haridwar being Suit No.126 of 2014 Sudha Rani vs. Sambhu Nath and others. In the suit in question, the principle decree which was sought by her was in relation to apportionment of her share to the extent of 1/4 of the property in dispute, which she claimed to have succeeded from the predecessors of the property i.e. Late Mr. Shrinath. In this suit the following decree was sought:-

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2. After the exchange of pleadings, the learned trial court had framed the issues and one of the issues i.e. Issue No.1, which was thus

framed, was pertaining to the appropriate valuation of the suit. The said issue was decided by the learned trial court after calling for a report from the Amin, who had submitted a valuation report by way of Paper No.129-C 2, on the basis of the Nagar Nigam Taxation, which was levied on the property. Based on the Amin's report, the learned trial court had decided the issue on 17.12.2019 in favour of the plaintiff/respondent holding thereof that the suit as instituted by the plaintiff and the valuation of the suit, as made by her was appropriately valued in the light of ratio laid down by the Allahabad High Court in the judgment reported in (2002) 2 Allahabad Civil General 897 Ramakant Malviya vs. District Judge, Haridwar and others.

3. Being aggrieved against the said judgment an order on the Issue No.1, a civil revision was preferred by the defendants/petitioners, being Civil Revision No.05 of 2020 Shambhu Nath Sharma vs. Sudha Rani Sharma and the revisional court, too while making reference to the provisions contained under Section 7(vi-A) of The Court Fees Act, 1870, had observed that as far as the suit for partition is concerned, the valuation has to be made in the light of the provisions contained under Section 7 (vi- A). The relevant provision relied by the revisional court is referred hereunder:-

^^U;k;ky; ds er esa] tgka rd iqujh{k.kdrkZx.k dh vksj ls m)r U;k;ky; Qhl vf/kfu;e dh /kkjk 7(vi-A) dk iz'u gS\ mDr /kkjk 7(vi-A) izkfo/kkfur djrh gS fd& 7(vi-A) In suit for partition-

"according to one quarter of the value of the plaintiff's share of the property, and according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner, and his claim to be a co-parcener or co-owner on such date is denied. Explanation- The value of the property for the purposes of this sub-section shall be the market-value which in the case of immovable property shall be deemed to be the value as computed in according with sub-section (v), (v- A) or (v-B), as the case may be."

4. The argument of the learned counsel for the petitioner is that the said provisions contained under Section 7(vi-A) The Court Fees Act, would not be applicable in the present case for the reason being that on the institution of the suit itself, the defendants/petitioners had filed his written statement and had denied the entitlement of any share to the plaintiff/respondent, and as such on that pretext he submitted that in that eventuality where he has denied the entitlement of share to the plaintiff/respondent, the provisions of Section 7(vi-A) of The Court Fees Act would not be attracted. In relation thereto, a question was also posed to him that he being a defendant in the suit in what capacity he could agitate an issue pertaining to the court fees, which is exclusively falling within the domain of court and the plaintiff itself in the light of the provisions contained under Section 12 of the Court Fees Act.

5. In answer to it, the learned counsel for the petitioners had made reference to a Division Bench judgment of Allahabad High Court reported in 2005 (99) RD 356 Ram Krishna Dhandhaniya and others vs. Civil Judge, (S.D.), Kanpur Nagar. He submitted that as far as the entitlement of a defendant to raise the question pertaining to the appropriate valuation of the suit, that would be maintainable at his behest, even as a defendant, in the light of the ratio laid down in para 19 of the said judgment, which is extracted hereunder:-

"19. Thus, in view of the above, the legal position can be summarized that the defendant has a right to raise all objections on the valuation and deficiency of the court-fees. The matter is to be adjudicated upon and decided by the Court under Section 12 of the Act, 1870 and the decision so taken by the trial Court shall be final. The defendant cannot raise the grievance against the said decision unless the valuation suggested by him affects the jurisdiction of the Court. However, the appellate or revisional Court always can test the issue suo motu and make the deficiency good as the purpose of the Act is not only fixing the pecuniary jurisdiction of the Court but also creating revenue for the State."

6. The aspect of entitlement of the defendant to raise the said question would always depend upon the facts and the circumstances of

each and every case and the nature of the decree sought for. In the said case which has been relied by the petitioner particularly the reference is made to para 2 of the said judgment of the Division Bench, which has dealt with the facts of the said case, which is quoted hereunder:-

"2. The facts and circumstances giving rise to this case are that the petitioners are purchaser of the property in dispute in which the defendants 2 and 3 had been tenants. At the time of purchasing the said property, petitioners entered into an agreement with the said defendant-respondents to allot them the area equivalent to 50% of the total area which had been in their possession prior to purchase of the said property. Certain amount of security has been deposited with the said defendant-respondents till the construction is completed and the possession is handed over to them after reconstruction. In that agreement, it was mentioned that the said defendants had been in possession to the extent of 1550 sq. ft. However, subsequently, it was found that they were in possession of only 485 sq. ft. Thus, rectification of the Deed was sought and as it was not made, the petitioners-plaintiffs filed the suit for rectifying the said agreement on various grounds. Written statement and replications have been filed; 12 issues have been framed and two of them relate to the payment of court-fee, namely (1) whether the suit is undervalued and (2) whether the court-fee paid is insufficient. These issues have been decided as a primary issues in view of the provisions of Order XIV, Rules 1 and 2 of the Code of Civil Procedure (hereinafter called the 'CPC') vide order dated 22-1-2004. By consent of the parties valuation of the suit stood enhanced and the petitioner-plaintiffs deposited the required court-fee on the valuation agreed by the parties. However, application was filed by the defendant-respondents to recall the said order and to redetermine the whole issue. The trial Court after hearing the learned counsel for the parties on the said application and objections, rejected the application by an order dated 18-9- 2004, which is quoted below :--

"18-9-2004. Case called out. Parties counsel are present. Application 90C to recall the order dated 21-8-2004. It is filed by the defendant. Opposed. Objection is 91C. Heard. Order dated 21- 8-2004 has been passed after hearing both the learned counsel of the parties. Report submitted by the Munsarim has been accepted by the Court. Hence it cannot be reagitated in this Court. Application 90C therefore is rejected. Fix 11-10-2004 for evidence."

7. It was altogether a different nature of litigation, which was instituted before the learned trial court, where the issue of valuation was made, where the suit was filed for the purposes of purchasing a share of a property, which was agreed to be sold in the said suit. The principles

underlying the ratio of the defendant's right to raise an issue has been dealt with by the aforesaid judgment in para 7 of the said judgment, which is referred to hereunder:-

"7. Section 12 of the Act, 1870 deals with the decision of question as to valuation and it provides that such an issue shall be decided by the Court in which the plaint is filed and such decision shall be final between the parties to the suit. Thus, it is evident from the provisions of Section 12 of the Act, 1870 that the decision taken by the Court on such an issue shall be final between the parties but in case the superior Court while exercising the appellate or revisional jurisdiction comes to the conclusion that the issue has wrongly been decided to the detriment of the revenue. It can direct the party to make the deficiency good for the reasons that the object of the Act is not to arm a litigant with a weapon of technicality but to secure the revenue. Vide Lala Ram Babu v. Lala Ramesh Chandra, 1957 All LJ 53. The finality is, however, with respect to arithmetical calculation and not with respect to classification, i.e. category under which the suit falls. (Vide Nemi Chand v. Edward Mills Co. Ltd., ); Smt. Bibbi v. Shugan Chand, (FB); and Mohd. Ajmal v. Firm Indian Chemical Co., and others)".

8. In fact, in the aforesaid judgment of Division Bench, the court has also held that in case if at a later stage of the proceedings, after the parties have led their respective evidence, the superior court in appeal or revision comes to a conclusion that the suit was not appropriately valued, the said aspect could still be decided by the court in spirit of the ratio laid down in para 7 of the judgment, that itself leaves open the issue pertaining to the deficiency of the court fees, in the light of the principles laid down in para 18 of the said judgment, which has to be read in consonance to para 19, where the issue still could be decided by the superior court at the time when the matter itself is decided finally in the appeal or revision. At this stage since the court has decided the issue no.1 in the light of the Amin's report Paper No.129-C 2, based on the provisions contained under Section 7(vi-A) of the Court Fees Act, with regards to the apportionment of the share claimed by the plaintiff in the partition suit. I do not find any apparent error as such in the judgments impugned, which are under challenge in the present writ petition, but however, it is made clear that subsequently if after the parties lead their evidence, the superior appellate

or revisional court (as the case may be) comes to the conclusion that the plaint, was not even entitled for any share to the extent of 1/4 share as claimed by her. In that eventuality, the aforesaid court may independently, determine the aspect pertaining to the payment of court fees as well as the issue of valuation of the suit itself at the stage after the parties have led their respective evidence.

9. Subject to the aforesaid, the writ petition lacks merits and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 03.05.2021 Arti