SINGLE B€§i€h§ k. IN THE HIGH COURT OF JUDICATURE AT BILASPUR WRIT PETITION 227 NO.S’$C§ OF 2010 PETITIONER z Sudama Prasad Shukla, son of (Defendam‘ No.1) Shr‘i Sharda Pr‘asad Shukla, aged abouT 59 year‘s, residenf of Green Par‘k Colony, Jar‘habha’ra, Dis‘rricf Bilaspur (CG) / x RESPONDENTS : 1. Rajkumar Bajpai, son of Dr‘. Plam‘hff M” é\ Bilaspur‘, Tehsil & D.N. Bajpai, aged abou’r 48 year‘s, resident of Gole Bazar, Bilaspur, Tehsil & Dis’rric‘r Bilaspur' (CG) / 2.Anand Shukla, son of Shri Baijna‘rh Shukla, aged abou’r 33 years, residenT of 16 Kholi, Defendan’r No.2 / Tikrapara, Near Bilaspur, Tehsil & Dis‘rric‘r Bilaspur (CG) / PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA w HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. Writ Petition (227) No.5397 of 2010 Petitioner Sudama Prasad Shukla (Defendant No.1) Versus Respondents Rajkumar Bajpai and Another Plaintiff (Writ Petition under Article 2270f the Constitution of India) Present: - Shri B. P. Sharma, counsel for‘the petitioner. Shri Prakash Tiwari, counsel for respondent No.1. Shri Yogesh Chandra, counsel for respondent No.2. ORAL ORDER (Passed on 05-05-2011) By this petition under Article 227 of the Constitution of India, the petitioner seeks to impugn correctness, legality and propriety of order dated 12-07—2010 passed by the Vth Additional District Judge, Bilaspur in Civil Suit No.9-A/2010, by which, the petitioner’s application under Order 7 Rule 11 C.P.C. has been rejected. 2. Learned counsel for the petitioner submitted that the petitioner in his application under Order 7 Rule 11 had categorically stated that in view of the relief sought by the petitioner under clause-Aw) in the plaint, the plaintiff was required to pay ad valorem court fee whereas only fixed court fee of Rs.600/— has been paid. He submits that relief sought under clause— A (a) in the plaint is in substance, a relief for decree of specific performance of contract, therefore, ad valdrem court fee would be payable. e “t/ He further submits that as far as relief for declaration that the sale deed dated 06—12-2007 is null and void and prayer for its cancellation is concerned, the plaintiff was required to pay ad valorem court feet The third submission is that the suit itself is barred by limitation in view of the provisions contained in Article 54 Schedule l of the Limitation Act, as the agreement was executed on 23-10—2003 and the suit has been filed on 17-08-2009 i.e. three years after the date fixed for performance. 3.‘ On the other hand, learned counsel for the respondent No.1 submits that the Court below has not committed any jurisdictional illegality or irregularity in rejecting the petitioner’s application because in View of the plaint averments and the reply which has been submitted by the respondent No.1/plaintiff, the Court has rightly come to the conclusion that all the issues are mixed question of law and fact, and therefore, the same required to be decided in the suit after recording evidence, He further submits that in any case, as far as relief for declaration as contained in clause—A (at) of the plaint is concerned, as simple declaration has been sought by the plaintiff, appropriate fixed court fee of Rs.600/- has been paid, and no ad valorem court fee is payable. As far as relief ln’ clause-B (El) is concerned, he submits that since the plaintiff is not a party to the sale deed, in view of the decision of Full Bench of High Court of Madhya Pradesh in the case of Sunil S/o Dev Kumar Radhelia and others vs. Awadh Narayan and others, 2010(4) M.P.L.J.431, the plaintiff is liable to pay the fixed court fee under clause (iii) of Article 17 of the Court Fees Act and that alone Is payable ln respect of objection wrth regard to swt being barred by limitation, learned counsel for respondent No 1/plaintiff submits ~"g/ that in view of the averments of the plaint and the contents of the agreement, it is ciear that the performance on the part of the plaintiff was to be made, after property was released from mortgage and in view of the specific averments made in the plaint that the property was released from mortgage in the year 2007, and ‘upon notice issued to the defendant, performance was refused in the year 2007, the same is clearly mixed question of law and fact, and therefore, no illegaiity has been committed by the Court below. 4. A perusal ofthe order passed by the learned trial Court shows that the learned trial Court, after recording submissions of the parties on various points as raised in application under Order 7 Rule 11 C.P.C., has come to the conclusion that the issues raised are mixed question of law and fact, which could be decided only after recording evidence. Learned trial Court has not recorded any reason for coming to such conclusion. As far as objection With regard to the relief prayed for in Clause—A (at) & B (’si) of the plaint being undervalued, what the Court is required to see, is the plaint averments and the relief prayed for in the plaint. If on that basis, the objection with regard to undervaluation of the relief could besdecided, the same ought to have been decided by the Court by considering the relief, which has been prayed. In the present case, while on one hand, learned counsel for the petitioner/defendant submits that the relief is undervalued, l learned counsel for respondent No.1/plaintiff submitted that the relief has been properly valued. This. aspect could be decided by the learned trial i recorded as. to on what basis the Court a’rrived at the conclusion that the .t\ Court, the same however has not been done and no reasons have been ,‘L‘f same is mixed question of law and fact. To that extent, Iearned Court below has failed to exarcise jurisdiction vested in it under the law. However, in so far as objection with regard to limitation is concerned, what l find is that in the plaint, elaborate averments have been made by the plaintiff to state that under the agreement, the plaintiff was required to peiform his part of the agreement after the property is released from mortgage. It has been averred in the plaint that propelty was released from mortgage in the year 2007 and that when notice was given to the petitioner/defendant, he stated that the agreement has been cancelled; therefore, the suit was filed on those averments within limitation. Learned counsel for the petitioner submitted that according to the contents of the i i agreement, the entire amount, was required to be paid by the plaintiff in I the month of December of that year only and as the same was not paid, the agreement stood cancelled. That appears to be the stand of the’ defendant on the issue of limitation. Therefore, as far as issue with regard to limitation is concerned, the same is certainly a mixed question of law and fact and therefore, in that regard, l do not find any ground to interfere. 5. Accordingly, this petition is partly allowed. in so far as objection with V . regard to undervaluation of relief Clause A (at) & 8(a) of the plaint is ‘ 7 concerned, the learned trial Court shall hear both the parties and decide the same in accordance with law. No order as to costs. Sd/ ff. ~ r \ Manindra Mohan Shrivastava t Judge ' . _.