Sachin Thakur vs Hare Krishan Tourism Development ...
2025 Latest Caselaw 4831 UK

Uttarakhand High Court

Sachin Thakur vs Hare Krishan Tourism Development ... on 14 October, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

IN THE HIGH COURT OF UTTARAKHAND
            AT NAINITAL
               Civil Revision No. 104 of 2025
Sachin Thakur.                      ..................... Revisionist.

                                      Versus

Hare Krishan Tourism Development Limited.
                                         ...............Respondent.
                             With
               Civil Revision No. 105 of 2025
Sachin Thakur.                      ..................... Revisionist.

                                      Versus

Hare Krishan Tourism Development Limited.
                                         ...............Respondent.
                             With
               Civil Revision No. 106 of 2025
Sachin Thakur.                      ..................... Revisionist.

                                      Versus

Hare Krishan Tourism Development Limited.
                                     ...............Respondent.

Present:
Mr. Neeraj Garg, Mr. Rajendra Arya and Mr. Yashpal Singh, learned counsel for the
revisionist.
Mr. Karan Anand, learned counsel for the caveator.


Hon'ble Mr. Justice Rakesh Thapliyal, J.

1. The three separate suits bearing O.S. Nos. 28, 29 and 30 of 2020 for specific performance were filed by the respondent/plaintiff for the specific performance and possession. The revisionist/defendant filed three separate applications in all the three suits under Order VII Rule 11 of CPC on the ground that the suit is under valued since no court fee is paid in respect of the additional relief as sought in relief 'v' in the plaint, wherein, the plaintiff is also praying for possession. All the applications moved under Order VII Rule 11 has been rejected on 23.09.2025 by the

Trial Court by observing that the issue as raised in the application is mixed question of fact and law and the same can be decided after framing of issues.

2. Mr. Neeraj Garg, learned counsel for the revisionist submits that in terms of Section 22 of the Specific Relief Act, 1963, since the plaintiff is praying for specific performance as well as possession, which in terms of Section 22 is an additional relief, therefore, he has to pay separate court fees for the additional relief in terms of Section 7 of Court Fees Act, 1870. Apart from this, Mr. Neeraj Garg submits that the Trial Court committed illegality while rejecting the application under Order VII Rule 11 since in view of Section 6(4) of the Court Fees Act, 1870 whether the suit is under valued or not in respect of the additional relief, this question has to be decided before proceeding with any other issue. By referring sub-section (4) of Section 6 of Court Fees Act, 1870, Mr. Neeraj Garg advance his argument by submitting that the issue of court fee in respect of the additional relief has to be decided before proceeding further with the suit in terms of sub-section (3) of Section 6 of Court Fees Act, 1870.

3. In response to this, Mr. Karan Anand, learned counsel for the caveator, submits that the arguments as advanced by Mr. Neeraj Garg is completely misconceived since the relief seeking for possession is the part of the relief of specific performance and is not an additional relief. In reference to Section 6(4) of Court Fees Act Mr. Karan Anand submits that sub-section (4) of Section 6 of Court Fees Act clearly provides that the question of proper court fee if raised can be decided before proceeding with any other issues. He submits that in the present case the issue has yet not been framed, therefore, the Trial Court rightly dismissed the application under Order VII Rule 11. In reference to Section 22 of

Specific Relief Act, 1963, Mr. Karan Anand submits that Section 22 is itself very clear and it provides that any person suing for specific performance may in appropriate case ask for the possession. He submits that the additional relief as sought for regarding possession is nothing but it is a consequential relief of specific performance, therefore, the relief as sought for possession is not an additional relief, therefore the suit is not under valued. In support of his argument he placed reliance in one of the judgments of the Hon'ble Apex Court in the case of Vinod Infra Developers Ltd vs. Mahaveer Lunia and Others reported in 2025 SCC Online SC 1205 and particularly he placed reliance to paragraph 8 and 11, which reads as under:

"8. The position of law is that rejection of a plaint under Order VII Rule 11 CPC is permissible only when the plaint, on its face and without considering the defence, fails to disclose a cause of action, is barred by any law, is undervalued, or is insufficiently stamped. At this preliminary stage, the court is required to confine its examination strictly to the averments made in the plaint and not venture into the merits or veracity of the claims. If any triable issues arise from the pleadings, the suit cannot be summarily rejected. Keeping in mind this settled principle of law, we proceed to examine whether the High Court was justified in rejecting the plaint under Order VII Rule 11 CPC.

11. Another contention raised by the appellant is that the suit cannot be dismissed merely on the ground of insufficient court fee. The law mandates that the plaintiff be afforded an opportunity to rectify such deficiency. Only upon failure to comply, can the plaint be rejected. This principle was affirmed by a three-Judge Bench of this Court in Tajender Singh Ghambhir and another v. Gurpreet Singh and Others (2014) 10 SCC 702, wherein, it was held as follows:

"7. While referring to the provisions of sub-sections (2) and (3) of Section 6, we shall refer to "plaint" which for the purposes of this discussion may be read to include "memorandum of appeal as well. Sub-section (2) of section 6 provides that in plaint in which sufficient court fee has not been paid, such plaint shall not be acted upon unless the plaintiff makes good the deficiency in court fee within such time as may from time to time be fixed by the court. Sub-section (3) provides that if a question of deficiency in court fee in respect of any plaint is raised and the court finds that the court fee paid insufficient, it shall ask the plaintiff to make good the deficiency within the time which may be granted and in case of default, the plaint shall be rejected. The

main provision of sub-section (3) anatidates the court to record a finding whether court fee paid is sufficient on the question being raised by the officer concerned under section 24-A. It further provides that in answer to that question if the court finds that court fee paid is deficient, the court may allow the plaintiff to make up that deficiency within time so fixed by the court. Then there is a proviso appended to sub-section (3) which provides that the court may, for sufficient reasons to be recorded, proceed with the suit if security is given by the plaintiff for payment of the deficiency in court fee within rime that may be granted by the court. It, however, requires the court not to deliver the judgment till such time deficiency is not recovered and if the deficiency in court fee is not made good within such time as the court may from time to time allow, the court may dismiss the suit or appeal.

8. The scheme of the above provisions is clear. It casts duty on the court to determine as to whether or not court fee paid on the plaint is deficient and if the court fee is found to be deficient, then give an opportunity in the plaintiff to make up such deficiency within the time that may be fixed by the court. The important thread that runs through sub-sections (2) and (3) of section 6 of the 1870 Act in that for payment of court fee, time must be grunted by the court and if despite the order of the court. deficient court fee is not paid, then consequence as provided therein must follow"

4. Another judgment, which has been relied upon, is the judgment of Andhra Pradesh High Court in the case of Guttula Mangayyama vs. Govvala Gannika and Others in CRP No. 2013 of 1965 decided on 30.12.1966. By referring paragraph 5, 6 and 7 of the said judgment. Mr. Karan Anand submits that praying for relief of possession in addition to specific performance is nothing but the part of relief of specific performance. Paragraph 5, 6 and 7 of the said judgment are being extracted herein as under:

"5. Section 39 (a) of the Court-fee Act reads-

"In a suit for specific performance with or without possession fee shall be payable

(a) In the case of a contract of sale, computed on the amount of the consideration;"

6. The language of the section is clear and unambiguous. Whether the plaintiff lays action for specific performance alone or for possession also, the Court-fee payable is on the contract of sale computed on the amount of consideration. Section 29 of the Act which deals with suits for possession not otherwise provided for is not applicable to cases where suits are laid for specific performance of a contract of sale with or without possession.

Section 29 of the Act applies to a case where action is laid for possession of immovable property not otherwise provided for. Dealing with the scope of section 7 (v) of the Madras Court-fees Act which corresponds to the present provision section 39(a) Venkata Subbarao, J. in Sundara Ramanujam Naidu v. Sivalingam Pillai, (1923) 45 MLJ 431: I.L.R. (1924) 47 Mad. 150, held that though the relief by way of giving possession arises from the relief granting the execution and delivery of the sale deed, the delivery of possession is a part of he specific performance of a contract of sale, unless the terms thereof show that the vendor was not under an obligation to deliver possession. It is thus obvious that a suit to enforce specific performance of a contract of sale and possession of the property agreed to be sold is a suit for specific performance falling under section 39 of the Act. chandrasekhara Sastry, J, in Suryakantamma v. Venkatachalam, (1964) 2. An.W.R. 417: (1965) 1 ALT. 229, having regard to the facts of that case held that the suit was essentially one for specific performance not only against the Ist defendant but also against the 2nd defendant the subsequent vendee and it was properly valued and proper Court-fee was paid as prescribed under section 39 of the Court Fees Act.

7. There could be absolutely no doubt that even if in a suit for specific performance of an agreement of sale possession of property is asked for, it is only a part of the relief of specific performance and it has to be valued only under the special provision, section 39 of the Court Fees Act. The fact that specific performance of the contract of sale is asked for against the subsequent vendee will not alter the nature of the relief asked for as it would still be a suit for specific performance of the contract of sale and consequent possession of the property. Therefore, I am unable to agree with the contention of the learned Counsel for the petitioner that in a case where a party seeks specific performance of the contract and possession of the property, he should pay separate Court-fee the relief of possession under section 29 of the Act. I find no merits in this petition and dismiss the same with costs."

5. In response to this, Mr. Neeraj Garg submits that both the judgments are not applicable for the simple reason that in terms of Section 22 if in addition to the relief for specific performance the possession is also praying for then such a relief is nothing but the additional relief and the plaintiff has to pay the additional court fee. He also submits that so far as the judgment of Andhra Pradesh High Court is concerned there is a specific provision,

which has also been produced in paragraph 5 i.e. Section 39(A) of Court Fees Act, which provides that in a suit for specific performance with or without possession the fees shall be paid. However, as per U.P. amendment there is no such provision.

6. Heard and peruse the records as well as the order impugned, whereby the application moved under Order VII Rule 11 has been rejected. On perusal of the plaint undisputedly the relief 'v' is meant for specific performance and the subsequent relief with regard to the possession is nothing but prima-facie appears to be a consequential relief and cannot be treated to be a separate one, rather it appears to be the part of main relief of specific performance. Therefore, the Trial Court in the opinion of this court rightly dismissed the application under Order VII Rule 11 by observing that the issue can be looked into only after framing of the issues.

7. So far as the arguments of Mr. Neeraj Garg is concerned that the relief with regard to the possession is an additional relief and for such additional relief the plaintiff has to pay the additional court fee in terms of Section 7 of Court Fees Act as well as in terms of Section 22 of Specific Relief Act, this argument is not acceptable for the simple reason that the relief for possession as prayed for in the suit for specific performance cannot be treated an additional relief and when a suit for specific performance is filed the relief of possession is nothing but appears to be a consequential, therefore, the arguments advanced by Mr. Neeraj Garg is outrightly rejected.

8. So far as the order impugned is concerned in view of the discussions as above, the Trial Court rightly dismissed the application by observing that this issue as raised in the application moved under Order VII Rule 11 of CPC are mixed

question of fact and law and can be decided only after framing of the charge, therefore, the rejection of plaint on this ground on an application moved under Order VII Rule 11 is unwarranted. Whether the relief for possession is the part of main relief or not certainly this is the mixed question of fact and law and can only be decided after framing of the issues, therefore, I do not find any illegality and infirmity in the order impugned. Accordingly, all these revisions are dismissed being devoid of merit.

9. No order as to costs.

(Rakesh Thapliyal, J.)

14.10.2025 PR