C.R. No.722 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.722 of 2007 Date of Decision: 1.4.2008 Royal International and another .....Petitioners Vs. M/s Shyamji Associates and others ...Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.S.C. Kapoor, Sr.Advocate with Mr.Sudhir Aggarwal, Advocate for the petitioners. Ms.Tarun Jain, Advocate for respondents no.1 and 2. Mr.R.S. Kundu, Advocate for respondents no.3 and 4. ... RAJIVE BHALLA, J Prayer in this revision petition is to set aside the orders dated 9.10.2006 and 17.1.2007 passed by the Additional Civil Judge (Senior Division), Gurgaon. Respondents no.1 and 2 filed a suit praying for a declaration that the reallotment letter dated 4.3.1999 was illegal and void. It was asserted that respondents no.1 and 2 had entered into an agreement dated 18.3.1996 to sell the plot for a consideration of Rs.20.50 lacs. A sum of Rs.12,95,000/- was received and a memorandum of understanding was executed on 5.6.1996. The respondents were thereafter surprised to receive a letter dated 16.2.1999 from the Haryana State Industrial Development Corporation (HSIDC) that the plot in dispute had been transferred to the petitioners vide reallotment letter dated 4.3.1999. Other facts that are not germane to the present controversy, need not be narrated. C.R. No.722 of 2007 2 The petitioners filed an application under Order 7 Rule 11 of the CPC praying for dismissal of the suit, on the grounds that the suit has not been properly valued for the purpose of jurisdiction and court fee and was barred by limitation. It was asserted that respondents no.1 and 2 were required to pay ad-valorem court fee on the market value of the suit property, which as asserted by them in the plaint was more than Rs.1.00 crore. The trial Court vide its order dated 9.10.2006 dismissed the application by holding that as the issue of limitation raises a mixed question of law and fact, it would, therefore, be decided after the parties lead evidence. As regards the plea relating to court fee, the learned trial Court held that the respondents were liable to pay advalorem court fee. Respondents no.1 and 2 filed an application for review of the order dated 9.10.2006, after affixing the court fee on an amount of Rs.1,48,750/-, the original price of allotment. The learned trial Court, vide order dated 17.1.2007 despite objections to the contrary, accepted the court fee, affixed on the amount of Rs.1,48,750/-. Counsel for the petitioners contends that the cause of action for filing the instant suit, arose on 16.2.1999 or a few days thereafter, when the petitioners received information regarding re-allotment of the plot. The suit was, however, filed on 22.7.2003 and was barred by limitation. The learned trial Court, therefore, committed an error by holding that the question of limitation, being a mixed question of law and fact would be adjudicated at the final decision of the suit. It is submitted that where a perusal of the plaint, discloses a cause, patently barred by limitation, the Court is obliged to reject the plaint under Order 7 Rule 11 of the CPC. The C.R. No.722 of 2007 3 learned trial Court’s refusal to reject the plaint, is a failure to exercise jurisdiction in accordance with the provisions of Order 7 Rule 11 of the Code. It is further argued that vide order dated 9.10.2006, respondents no.1 and 2 were directed to affix ad-valorem court fee on the value of the suit property. The plaint discloses that re-allotment was made, pursuant to the agreement to sell executed allegedly by respondents no.1 and 2 in favour of the petitioners for a sum of Rs.20.50 lacs and as it is specifically pleaded that the market value of the property is more than Rs.1.00 crore, respondents no.1 and 2 were required to affix court fee on the amount of Rs.1.00 crore and if not, then on the amount of Rs.20.50 lacs. Counsel for the respondents, on the other hand, submits that as held by the Full Bench of this Court in M/s Arjan Motors Vs. Girdhara Singh and others 1978 Revenue Law Reporter 199, an order, with respect to payment of court fee is not revisable. It is further argued that the Full Bench placed reliance upon a judgement of the Hon’ble Supreme Court in Shamsher Singh V. Rajinder Parshad reported as 1973 PLJ 686 and, therefore, the revision petition, though filed under Article 227 of the Constitution, be dismissed. Counsel for respondents no.1 and 2 further submits that the Court fee is a matter between the plaintiff and the Court. The defendant has no right to intervene, more particularly, where a Court has recorded its satisfaction, as to the amount of court fee paid. It is further argued that as the plot was allotted to the respondents for a sum of Rs.1,48,750/- and the court fee of Rs.10,370/- affixed by the respondents has been accepted by the learned trial Court, the petitioners have no right to raise any objection or C.R. No.722 of 2007 4 assert that the plaint be rejected for failure to affix ad-valorem court fee. I have heard learned counsel for the parties and perused the impugned orders. There can be no dispute with the proposition that a suit filed beyond limitation, must necessarily be dismissed. Where a plaint,however, discloses different inter connected causes of action that may or may not be severable and by the very nature of the facts constituting these causes, entail adjudication of disputed questions of facts, a Court, would be validly entitled to postpone the adjudication of a plea that the suit is barred by limitation, to the final adjudication of the suit. The present case, raises a dispute, with respect to an order of reallotment made, pursuant to an alleged agreement to sell. The plaintiffs (respondents no.1 and 2) have asserted different dates and different causes of action that have led them to the filing of the present suit. It would, therefore, be necessary to refer to paragraph 32 of the plaint, which details the various causes that led respondents no.1 and 2 to file a suit. “32. That the cause of action arose in favour of the plaintiffs when the said plot was allotted to the plaintiff on 09.11.1992. It also arose when the HSIDC executed an agreement dated 22.12.1992 with the plaintiff. It further arose on 24.5.1996 when the cheques bearing nos.703129 and 703130 for Rs.4,25,000/- each were bounced as referred to in para above. It again arose on 05.06.1996 when the MOU dated 05.06.1996 was executed between the plaintiffs and defendant no.1 for sale of ground floor and full consideration was not paid by the defendant no.1. It further arose when defendant –HSIDC C.R. No.722 of 2007 5 issued its letter dated 16.02.1999 agreeing in principle for the transfer the suit plot. The cause of action also arose when the plaintiffs issued the letter dated 08.03.1999 refuting all the documents on the basis of which reallotment was considered and categorically denying if any consent ever made for transfer of the plot to the HSIDC. It also arose on 12.7.1999 when defendant HSIDC gave reply to the plaintiffs. The cause of action arose on 28.10.99, 13.11.99, 10.11.99, 30.11.99, 24.01.2000, 09.02.2000, 06.03.2000 & 28.03.2000 when defendant no.3 (HSIDC) continued to write to the plaintiff and receive letters from the plaintiffs. The cause of action also arose when defendant nos.1 and 2 disclosed the reallotment letter from HSIDC in the written statement dated 04.01.2001, which the plaintiff came to know for the first time. The cause of action further arose when the defendant no.1 & 2 gave attested copy of the reallotment letter dated 04.03.1999 on 04.03.2003. The cause of action further arose on 20.03.2002 when the defendant no.3 issued letter to the plaintiff intimating that conveyance deed of the transfer of the plot has been kept in abeyance and no action for the transfer of the plot was proposed. The cause of action also arose when the Hon’ble Court of Sh.Ishwar Chand, Civil Judge, Gurgaon rejected the plaint under Order 7 Rule 11 of CPC by its order dated 11.03.2003 and allowed the plaintiff to file fresh suit. The cause of action also arose when legal notice to defendant no.3 & 4 was issued on 22.03.2003 and the same is continuing.” C.R. No.722 of 2007 6 A perusal of para 32 discloses a long list of dates and causes. Though a few of the causes may prima facie be stated to be barred, the explanation furnished by the respondents in the preceding paragraphs of the plaint, was sufficient to postpone the adjudication of the question of limitation to the final adjudication of the suit. The averments in the plaint, disclose allegations of fraud, deception, collusion, criminal conspiracy, dishonour of cheques, execution of agreements, execution of a memorandum of understanding and a large number of other facts so inter- mingled as to rightly postpone the adjudication of the issue of limitation to the final adjudication of the case. As regards the next point, namely the order dated 17.1.2007, the learned trial Court has accepted the court fee affixed as a correct estimate of the court fee due. The petitioners' contention that as averment in the plaint, refers to an agreement to sell for Rs.20.50 lacs and that the property is valued more than Rs.1.00 crore, the trial Court, therefore, should have directed the respondents to affix the court fee on Rs.1.00 crore or at least on a sum of Rs.20.50 lacs, cannot be accepted at this stage. A dispute with respect to court fee is essentially a matter between a Court and the plaintiff. The defendant may validly bring any infirmity with respect to the court fee affixed to the notice of a Court but as the dispute regarding fee is essentially a matter between a Court and the plaintiff, the defendant cannot assert as of right that plaint be rejected, once a Court has recorded satisfaction that the court fee affixed is correct. It should, however, not be understood to suggest that a respondent has no role to play in matters of court fees. The learned trial Court has accepted the court fee of Rs.10,370/- C.R. No.722 of 2007 7 as a correct estimate of a court fee to be affixed. The petitioners' assertions that the plaintiffs' admission in the plaint that an agreement to sell was executed for Rs.20.50 lacs does tend to cast a doubt as to the correctness of the court fee affixed. However, as held by the leaned Courts below, as the respondents have already affixed Court fee, it would be appropriate, if the order passed by the learned trial Court is modified to the extent that the learned trial Court is directed to frame an issue on the question of court fee and if upon final adjudication, it is found that the court fee to be affixed exceeds the amount already affixed, respondents no.1 and 2 would be bound to affix additional court fee. In view of what has been stated herein above, the present revision petition is disposed of in the aforementioned terms. 1.4.2008 ( RAJIVE BHALLA ) GS JUDGE