IN THE COURT OF SH. RAJ KUMAR : ADJ-17 : THC : DELHI. CS No. 151/14 (Old Suit No. 29/08) [ENTITY] & Ors. Plaintiff. Vs. [ENTITY] & Ors. Defendant. ORDER
Vide this order, I shall dispose of an application filed by the defendants U/[SECTION] of the [ACT].
2. The defendants, in the said application, have stated that the plaintiffs have filed the present suit for Partition, Rendition of Accounts, Perpetual & Mandatory Injunctions. It has been further stated that the father of the parties to the present suit namely Sh. [ENTITY] and the mother as well expired leaving behind the parties to the suit only as their legal heirs. It has been further stated that the present suit was filed in January 2008 and at that point of time, vide Gazette Notification dated 18.07.2007, the circular rate in Delhi were fixed. It has been further stated that the plaintiffs have sought the partition of the properties, which has been mentioned in para no. 2 of the plaint. It has been further stated that the property no. B-22, Sanwal Nagar, Delhi is one of the properties Page no. 1 of 12 mentioned in para no. 2 of the plaint and that property is measuring 195 sq. yards. It has been further stated that the said property situated in Sanwal Nagar at serial no. 2092, falls under Category "E", Ward Defence Colony, Central Zone and the rate of land as per circle rate is Rs. 18,400/- per sq. meter. It has been further stated that thus, the value of the land comes to Rs. 29,99,200/-. It has been further stated that the rate of the cost of construction was Rs. 6,410/- per sq. meter. It has been further stated that the said property is completely constructed upto 2nd floor and and the cost of the construction also comes to Rs. 36,47,290/- and thus, the total value of the cost of the land and the construction of the said property is Rs. 61,46,490/- as per circular rate, which were applicable on the property in NCT of Delhi in the year 2007. It has been further stated that the property bearing no. B-23, Sanwal Nagar, Delhi was owned by Sh. [ENTITY] and after his death, his wife namely Smt. [ENTITY] has inherited the said property as per law. It has been further stated that the said property is measuring 64 sq. meter. It has been further stated that the cost of the land of the said property is Rs. 11,77,600/- and the cost of the construction is Rs. 8,20,480/-. Thus, the total value of the cost of the property comes to Rs. 19,98,080/-. It has been further stated that apart from the above said properties, the plaintiffs Page no. 2 of 12 have sought for partition of the said properties, which have been mentioned in para no. 2 of the plaint. The defendants have stated in the said application that the plaintiffs have valued the present suit for Rs. 10,00,460/-, whereas, the total value of the properties is not less than Rs. 3 Crores. It has been prayed that this Court does not have any pecuniary jurisdiction to try and entertain the present suit and the plaintiffs have not valued the present suit properly for the purposes of court fess and jurisdiction. It has been further prayed that the plaint be rejected U/[SECTION] of the [ACT].
3. Ld. Counsel for the defendants have relied upon the following authorities :
1) [PRECEDENT] titled as [PRECEDENT], wherein, it has been held that :
"(B) [ACT] be taken into consideration."
2) 188 (2012) DELHI LAW TIMES 9 titled as [PRECEDENT], wherein, it has been held that :
"[ACT] - Order 7 Rule 10 -
Page no. 3 of 12 Return of Plaint-Jurisdiction-Partition suit- Valuation- Payment of Court fee-Determination-Valuation for the purposes of jurisdiction has to be the value of whole of the property which is subject matter of partition whereas valuation for the purpose of court fee would be such as provided under [ACT] Plaintiff is not in possession of suit property and claiming 1/7th share by virtue of partition- Valuation has to be entire value of suit property- Plaint returned to be filed in court of competent authority."
3) [PRECEDENT] titled as R.C. Bhardwaj vs. Ram Parkash Sharma etc. wherein, it has been held that :
"[ACT]. In a suit for partition of property, value for purpose of jurisdiction is value of whole property and not value of plaintiff's share. When plaint is returned for presentation to proper Court, then date of filing suit will be when it is re-filed. Plaintiff may claim condonation of delay u/[SECTION], [ACT]. High Court may order that evidence already recorded may form record of the new (transferee) Court."
4. Separate replies have been filed on record to the aforesaid application of the defendants by the plaintiff no. 1 to 5 and the plaintiff no. 6 and 7, but the stand of the plaintiffs as contained in the replies to the said application of the defendants is more or less the same. In the replies Page no. 4 of 12 to the said application, the plaintiffs have taken the stand that the said application has been filed with a view to delay and protract the proceedings of the present suit. It has been further stated that the present application U/[SECTION] of the [ACT] is barred U/[SECTION] of the [ACT]. It has been further stated that the present suit is pending since the year 2008 and the issues in the present suit were framed in the year 2011 and the matter is already fixed for evidence of the plaintiffs. It has been further stated that the plaintiffs no. 1 to 7 and the defendants no. 1 and 2 are the children of late Sh. [ENTITY]. It has been further stated that the plaintiffs no. 6 and 7 are the brothers, who intend to deprive the plaintiffs no. 1 to 5 of their rightful shares in the properties. It has been further stated that no number and details of the alleged Gazette Notification has been mentioned by the defendants. It has been further stated that the plaintiffs and the defendants no. 1 and 2 are in occupation of the suit properties and as such, there is absolutely no loss to the exchequer and the plaintiffs have rightly valued the properties. It has been further stated that the property bearing no. B-22, Sanwal Nagar, Delhi has been constructed with poor material and as such, the cost of the construction of the property, as stated by the defendants, is absolutely wrong and denied. It has been prayed that the application filed by the defendants be Page no. 5 of 12 dismissed.
5. Ld. Counsel for the plaintiffs has relied upon the following authorities :
1) [PRECEDENT] titled as [PRECEDENT], wherein, it has been held that :
"Case Civil - Court fee - Section 7 of [ACT], 1870 and [SECTION] of [ACT] - whether decision of Division Bench of High Court under [SECTION] be reopened - question answered in negative by Supreme Court - whether value of Court fee for case falling under [SECTION] and value for purpose of jurisdiction be same
- value for purpose of jurisdiction depends upon computation of Court fee - same value of both - value for purpose of jurisdiction depends upon value of computation of Court fee and not vice versa - Apex Court held, High Court erred in holding value for purpose of jurisdiction be taken as value to be paid as court fee."
2) The judgment in the case bearing no. 2642/2008 titled as [PRECEDENT]., decided on 04.03.2011 by the Hon'ble High Court of Delhi.
6. I have carefully gone through the entire material available on Page no. 6 of 12 record and heard the rival submissions of both the Ld. Counsels for the parties.
7. The present suit was instituted by the plaintiffs in the year 2008. The present suit is a suit for Partition, Rendition of Accounts, Perpetual & Mandatory Injunctions. Issues in the present suit were framed by the Ld. Predecessor of this Court on 20.04.2010. Issue no. 2 has been framed on the valuation aspect of the matter. The plaintiffs, in the plaint, have asserted that the plaintiffs no. 1 to 7 and the defendants no. 1 and 2 are the children of late Sh. [ENTITY], who expired on 02.06.1996 at Delhi leaving behind the properties, which have been mentioned in para no. 2 of the plaint. The properties which have been mentioned by the plaintiffs in para no. 2 of the plaint are as under :
i) B-22, Sawal Nagar, New Delhi-110049 (200 sq. yds.
constructed property);
ii) B-23, Sawal Nagar, New Delhi-110049;
iii) Shop No. 19 & 20, Sarojini Nagar Market, New Delhi;
iv) D.D.A. Flat No. 352, Janta Flats, Nand Nagri, Delhi;
v) Shop No. 32, Prem Nagar, Kotla Mubarakpur, New Delhi;
vi) Property No. 618, Prem Nagar, Kotla Mubarakpur, Page no. 7 of 12 New Delhi;
vii) House No. 215, Block-I, Gali No. 4, Sangam Vihar, New Delhi.
8. The plaintiffs have alleged that the defendant no. 3 has started claiming herself as daughter of late Sh. [ENTITY], whereas, the defendant no. 4 claims herself as sister of late Sh [ENTITY]. The plaintiffs have levelled various allegations against the defendants and have stated that the plaintiffs are entitled to 1/9th share each or in the alternative, 1/10th share each in all the properties.
9. In the written statement filed on record by the defendants no. 1 to 3, the defendants have stated that the father of the answering defendants had earlier married with Smt. [ENTITY] and the defendant no. 3 is the daughter of late Sh. [ENTITY] and Smt. [ENTITY] born from the said wedlock. It has been further stated that while the marriage of the deceased father of the defendant no. 3 with Smt. [ENTITY] was subsisting, he illegally married again with one Smt. [ENTITY] and the plaintiff and the defendants no. 1 and 2 are the children born from the said invalid second married. It has been further stated that the defendant no. 3 is the exclusive and sole owner of the properties being Page no. 8 of 12 the only legal heirs of deceased Smt. [ENTITY]. It has been further stated that the plaintiffs have not come to the Court with clean hands and they have included the properties in the present suit, which were/ are not belonging to late Sh. [ENTITY]. It has been further stated that the shop bearing no. 20, Sarojini Nagar Market, New Delhi is independently owned by one Mr. [ENTITY] and similarly, the House No. B-23, Sanwal Nagar, Delhi is/ was in the ownership of Sh. [ENTITY] and after his death, the said property came to be owned by Mrs. [ENTITY] w/o late Sh. [ENTITY]. The defendants have further stated in the written statement that the present suit has not been properly valued for the purposes of Court fees and jurisdiction because the value of the properties is more than Rs. 1 Crore.
10. Now, coming to the merits, one of the objections of the plaintiffs to the said application is that the issues in the present suit stand already framed and the matter is already fixed for evidence on behalf of the plaintiffs and as such, the present application is not maintainable. I am of the opinion that the abovesaid submission of the Ld. Counsel for the plaintiffs is fallacious because the settled law is that the application U/[SECTION] of the [ACT] can be looked into by the Court at any stage of trial. It is true that the issues were framed by the Ld. Predecessor of this Page no. 9 of 12 Court on 20.04.2010. It is also true that an issue on the aspect of the valuation of the suit property has already been framed by the Ld. Predecessor of this Court, but I am of the opinion that the valuation aspect of the matter can be looked into by the Court by way of the present application at any stage. The defendants have taken the stand that the some of the properties, which have been mentioned by the plaintiffs in the para no. 2 of the plaint were not owned by deceased Sh. [ENTITY]. However, it has to be seen that the property bearing no. B-22, Sawal Nagar, New Delhi, which has been mentioned by the plaintiffs at serial no. 1 of para no. 2 of the plaint has not been denied by the defendants. The plaintiffs have placed on record the Gazette Notification specifying the applicability of the circle rates in Delhi w.e.f. 18.07.2007. The property of Sawal Nagar falls at serial no. 2092 of The [ACT], which falls under category "E". The circle rates as per the said notification is Rs. 18,400/- per sq. meter. As per the own submission of the plaintiffs as contained in para no. 2 of the plaintiff, the said property bearing no. B-22, Sawal Nagar, New Delhi is measuring 200 sq. yards and the said property is constructed property. The defendants in the present application have stated that the said property is measuring 195 sq. yards.
Page no. 10 of 12 Applying the said circle rates, the cost of the land has been stated to be Rs. 29,99,200/- of the said property. The cost of the construction has been stated to be Rs. 6,410/- per sq. meter as per the said notification. Though, the plaintiffs, in the said replies to the said application have taken the stand that the said property has been poorly constructed, but even if the cost of the land is taken to be Rs. 29,99,200/-, the same becomes out of the purview of the pecuniary jurisdiction of this Court. The said valuation has been computed only with respect to one of the properties whereas, as many as seven properties have been mentioned by the plaintiffs in para no. 2 of the plaint. The plaintiffs have valued the present suit for the purposes of court fess and jurisdiction at Rs. 10 Lacs only. The plaintiffs have not specified any details to show as to how the plaintiffs have arrived the said valuation of Rs. 10 Lacs of the entire seven properties. So far as the law is concerned, the Hon'ble High Court of Delhi in the abovestated authorities relied upon by the Ld. Counsel for the defendants has categorically stated that the valuation of the suit property in a suit for Partition has to be the value of the whole of the property, which is the subject matter of the suit for partition for the purposes of jurisdiction, whereas, the valuation for the purposes of court fees would be such as has been determined under the [ACT].
Page no. 11 of 12 As such, I have no hesitation to hold that the present suit has not been valued properly for the purposes of court fees and jurisdiction.
11. In the light of the abovesaid discussion, I hereby allow the present application of the defendants U/[SECTION] of the [ACT] and reject the plaint.
File be consigned to Record Room.
Announced in the open (RAJ KUMAR) Court today i.e. 10.12.2014. ADJ-17 (Central), THC, Delhi Page no. 12 of 12