IN THE COURT OF HIMANSHU RAMAN SINGH, CIVIL JUDGE1, CENTRAL DISTRICT, DELHI Suit No.24[SECTION]/14 Lubna Vs. [ENTITY] ORDER:
07.06.2016
1. Vide order dated 03.0[SECTION].2004, issues were framed in the present suit. Vide order dated 31.03.2014, issue no.2 was directed to be treated as preliminary issue which is as under:
"Whether suit has not been properly valued for the purpose of Court fees & jurisdiction? OPD"
2. The onus to prove this issue was on the defendant.
3. Vide this order I shall proceed to decide the abovesaid issue.
4. Arguments at length heard from both the sides present before me in the court today. I have carefully gone through the record.
5. It is the case of the plaintiff that the suit property was jointly purchased in the year 1[SECTION][SECTION][SECTION] by Sh. [ENTITY] (father of the plaintiff) and the defendant Sh. [ENTITY]. Thereafter Sh. [ENTITY] had expired in the year 2002 and on his demise all the legal heirs executed a Registration Sale Deed dated 1[SECTION].06.2003 in favour of the plaintiff. The plaintiff claims to be the owner of half share of the suit property by virtue of the said sale deed.
6. The plaintiff is seeking decree of partition of the premise bearing municipal no.[SECTION]10, Ward no.21, situated at Haveli Azam Khan, Bazar Chitli Qabar, [ENTITY], Delhi110006 and decree of permanent injunction restraining the defendant or his agents from selling or creating any third party interest in the suit property. The plaintiff claims to be the owner of 1/2 of the share in the suit property.
7. Earlier an application under [SECTION] [ACT] was moved by the defendant on the same ground that the suit has not been valued properly for the purposes of [ACT]. The application was dismissed vide order dated 15.11.2003 by the Ld. Predecessor.
[SECTION]. The plaintiff is admitted to be in possession of the suit property in the cross examination of DW1. The court fees in the present suit has to be paid in accordance with [SECTION] of the [ACT]. [SECTION] of the [ACT] provides that the value as determinable for the computation of the court fees and the value for purposes of jurisdiction shall be the same in terms of entries provided under the [ACT] in Section 7 paragraph (v), (vi), (ix) and (x)
(d). The said [SECTION] is not applicable to the entries under para no. iv which implies that the plaintiff is free to give different valuation for the purposes of the court fees and for the purposes of jurisdiction. In the present case an application under [SECTION] [ACT] was also filed by the plaintiff which was allowed thereby amending the value of the suit for the purpose of jurisdiction to Rs.2.5 lacs. As per the plaintiff Rs.2.5 lacs is stated to be value of half portion of the suit property i .e. value of share of the plaintiff.
[SECTION]. Ld. counsel for the plaintiff has placed reliance in the judgment passed by the Hon'ble High Court of Delhi in the case titled as [PRECEDENT], the relevant portion is reproduced here under for ready reference:
"The law is wellsettled that the valuation of a suit for the purposes of Courtfee depends upon the prayers made in the plaint and in partition suits where immovable property sought to be partitioned is with the tenants, the coowners are deemed to be in constructive possession. In such cases, they cannot be, prima facie, held to be out of possession of the property and cannot be made to pay Courtfee on the value of the share being claimed by them. The judgment of the Apex Court in Chief Inspector of Stamps vs. Indu Prabha Vachaspati (Smt.) and Ors., reported in (1[SECTION][SECTION][SECTION]) [SECTION] SCC 157, is a direct authority on this question."
10. I may also refer to the judgment passed by the Hon'ble High Court of Delhi in the case titled as Anu vs. Suresh Verma & Ors., CS(OS) No. 2546/2010, 2011 SCC Online Delhi 2[SECTION]31, the relevant portion of which is reproduced here under for ready reference:
"5. [SECTION] of the [ACT], 1[SECTION][SECTION]7 provides that where other than those referred to in the [ACT], 1[SECTION]70 [SECTION], Courtfees are payable ad valorem under the [ACT], 1[SECTION]70, the value as determinable for the computation of courtfees and the value for purposes of jurisdiction shall be the same. [SECTION] of the above referred Act provides that when the subjectmatter of suits of any class, other than suits mentioned in the [ACT], 1[SECTION]70, Section 7, paragraph v and vi, and paragraph x, clause (d) is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the [ACT], 1[SECTION]70, and of this Act and any other enactment for the time being in force, be treated as if their subjectmatter were of such value as the High Court thinks fit to specify in this behalf."
11. The court thereafter dealt with the applicability of [SECTION] of the [ACT]. The observations are as under:
"In exercise of powers conferred by [SECTION] of [ACT], Punjab High Court made rules which are applicable to Delhi.
Suits for partition of property Courtfee(a) as determined by the [ACT], 1[SECTION]70 Value(b) For the purpose of the Suit Valuation Act, 1[SECTION][SECTION]7, and the Punjab Court Act, 1[SECTION]1[SECTION] the value of the whole of the property as determined by [SECTION], [SECTION] and [SECTION] of the [ACT], 1[SECTION][SECTION]7. It would thus be seen that in view of the rules framed by Punjab High Court under [SECTION] of [ACT], which admittedly are applicable to Delhi, there can be separate valuations for the purpose of Court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of Court fee would be such as is provided by the [ACT]."
The Hon'ble Court thereafter deliberated on the amount of court fees to be payable in the suits for partition. The court observed as under:
"[SECTION] of [ACT], provides that in a suit to enforce the right to share in any property on the ground that it is a joint family property, the amount of fee payable under [ACT], shall be computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It further provides that in all such suits the plaintiff shall state the amount at which he values the relief sought by him. [SECTION] of [ACT] provides for payment of a fixed Court fee in a suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act.
6. After examining the decision of Supreme Court in S.Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar AIR 1[SECTION]5[SECTION] SC 245, Neelavathi & Ors. v. N. Natarajan & Ors. AIR 1[SECTION][SECTION]0 SC 6[SECTION]1, [PRECEDENT] and Commercial Aviation and Travel Co. v. Vimla Panna Lal AIR 1[SECTION][SECTION][SECTION] SC 1636 this Court in CS(OS) No. 2642/200[SECTION] and IA No. 10367/2010 decided on 4th March, 2011 summarized the legal position in this regard as under:
(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed Court fee in terms of [SECTION] of [ACT].
(iii) If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is required to claim possession and also pay ad valorem Court fee on the market value of his share in the suit property. "
12. I am also supported in my reasoning by the following observations made by the Hon'ble High Court in [PRECEDENT]:
"It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of properties to be partitioned, then the court fees shall be payable under [SECTION] of the [ACT] i.e. fixed court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under [SECTION] of the [ACT] i.e. on the value of plaintiff's share."
13. I am also supported in my reasoning by decision passed by the Hon'ble High Court of Delhi in case titled as [ENTITY] vs. Dayawanti & Anr., AIR 1[SECTION][SECTION]1 Delhi 4[SECTION] and [PRECEDENT].
14. Reliance is also placed upon the Rules framed by the Hon'ble High Court of Delhi, which have been reproduced as under:
" CHAPTER 3 Valuation of Suits Part C MANNER OF DETERMINING THE VALUE OF SUITS FOR PURPOSES SPECIFIED IN SECTION [SECTION] OF THE SUITS VALUATION ACT, 1[SECTION][SECTION]7 Rules [SECTION]. Suits for partition of property
Courtfee (a) As determined by the [ACT], 1[SECTION]70. Value (b) For the purposes of the [ACT], 1[SECTION][SECTION]7 and the Punjab Courts Act, 1[SECTION]1[SECTION] the value of the whole of the property as determined by [SECTION], [SECTION] and [SECTION] of the [ACT], 1[SECTION][SECTION]7. "
15. The plaintiff would be required to pay the court fee on the value of her share as held in [ENTITY] (supra). However, for the purpose of jurisdiction, the valuation of the entire property will have to be seen as prescribed under [SECTION] of the Rules made by the Punjab High Court under [SECTION] of the [ACT] which are applicable to Delhi.
16. In view of the aforesaid discussion there is no doubt that the plaintiff is free to have separate valuation of the suit for the purpose of jurisdiction and for the purpose of [ACT]. The plaintiff is liable to pay only fixed court fees in for the reliefs claimed in the plaint in light of the decisions cited above.
17. A perusal of the copy of sale deed dated 21.0[SECTION].1[SECTION][SECTION][SECTION] in favour of [ENTITY] and [ENTITY] reveals that the sale consideration of the suit property was Rs.2,00,000/. In the sale deed the area of the property has been mentioned as 272 square yards. Thereafter vide registered deed dated 0[SECTION].06.2003 the area of the property was corrected to 205 square yards. Considering the market trend, as per common knowledge the value of the property increases approximately at the minimum rate of 10% every year. The value of the property which was Rs.2 lacs in the year 1[SECTION][SECTION][SECTION] would be more than Rs. 3 lacs in the year 2003 when the suit was filed. Some guidance can also be sought from the notification No.F. 2(12)/Fin.(E.I)/Part File/Vol.1(ii)/354[SECTION] dated 1[SECTION].07.2007 of the Delhi government as per which minimum rates (circle rates) for valuation of land and properties under [SECTION] and [SECTION] of the Indian Stamp Act, 1[SECTION][SECTION][SECTION] were notified. As per categorization of colonies by the North Delhi MCD, the area [ENTITY] falls in E category. In 2007 the minimum rate for the said category was notified at Rs.1[SECTION],400/ per square meter. Conversion of 205 square yards into meter comes to 172 square meters. The total circle rate comes to Rs.31,64,[SECTION]00/. The property has been constructed upto second floor. Apart from this minimum rate of cost of construction is also to be added which is Rs.6,410/ x 172 is Rs.11,02,520/. The total circle rate comes to Rs.42,67,320/. If the minimum circle rate of the property as per the government notification is more than Rs. 40 lacs in the year 2007, the value of the property cannot be said to be less than Rs. 3 lacs in the year 2003 by any stretch of imagination.
1[SECTION]. As per the averment of the Ld. counsel for the plaintiff the value of half share of property was Rs.2.5 lacs. Therefore, by the averment itself the value of entire property comes to Rs. 5 lacs. Reliance is also placed upon Schedule of Market Rate of property in Delhi from 01.04.1[SECTION][SECTION][SECTION] to 31.03.2000(L&DO Rates) as per notification of Ministry of Urban Affairs and Employment, Department of Urban Development, No. J22011/4/[SECTION]5LD, dt. 16.04.1[SECTION][SECTION][SECTION]. The colony [ENTITY] has not been specifically mentioned. But reference can be made to surrounding areas. The areas that can be referred to are Teliwara and Lajpat Rai Market which are adjoining [ENTITY]. These fall in Zone IVNorth Delhi having rate of Rs. 6,[SECTION]30/ per square meter. As per the rate also the value of land alone (without structure) comes to Rs. 11,[SECTION]1,[SECTION]60/ in the year 2000 itself. This value of property is beyond pecuniary jurisdiction of this Court.
1[SECTION]. This court therefore arrives at the finding that the value of the suit property was more than Rs. 3 lacs i.e. beyond the pecuniary jurisdiction of this court at the time of filing of the suit.
20. As per the provisions of [SECTION] [ACT], the plaint alongwith documents be returned to plaintiff against duly certified copies of the same for filing in the appropriate court having jurisdiction, as per rules.
File be consigned to record room after due completion. Announced in the open court ([ENTITY]) today i.e.07.06.2016 Civil Judge1, Central District, Tis Hazari Courts, Delhi