Civil Revision No. 124 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Civil Revision No. 124 of 2006 Date of Decision: 16th December, 2011 Maharani Deepinder Kaur and others ... Petitioners Versus Raj Kumari Amrit Kaur and others ...Respondents CORAM:HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Arun Palli, Senior Advocate with Mr. Sunil Garg, Advocate for the petitioners. Mr. M.S.Khaira, Senior Advocate with Mr. Dharminder Singh, Advocate for respondent no.1. RAJIVE BHALLA, J. The petitioners impugn the order dated 23.12.2005 passed by the Civil Judge (Senior Division), Chandigarh (hereinafter referred to as the "trial court"). Counsel for the petitioners submits that respondent no.1 has filed a suit for declaration that she is owner of 1/3rd share of the entire suit property. Vide order dated 30.8.1997, the trial court held that, as the suit is not properly valued for the purpose of court fee, respondent no.1 was directed to assess market value and affix court fee in accordance therewith. The trial court also rejected a plea, raised by respondent no.1, that an issue should be framed on the Civil Revision No. 124 of 2006 2 question of quantum of court fee, it be decided with the main suit. The order was challenged before the High Court, in Civil Revision No. 4212 of 1991 which was dismissed on 08.10.2001 but by granting liberty to plaintiff-respondent no. 1 to amend the plaint and by directing the trial court to allow the amendment. The petitioners filed a Special Leave Petition. Vide order dated 17.8.2005, the Hon'ble Supreme Court modified the order dated 08.10.2001, granted liberty to the plaintiff-respondent no.1 to file an application for amendment of plaint, but set aside part of the High Court order, directing trial court to allow the application for amendment. It is further argued that trial court has ignored the order dated 30.8.1997, which was affirmed upto the Hon'ble Supreme Court and held that the question of court fee will be decided at the time of deciding the suit. The impugned order, therefore, amounts to a review of order dated 30.8.1997. Counsel for the petitioners further submits that plaintiff- respondent no.1 has valued a part of the properties and then also incorrectly. The petitioners, therefore, requested the trial court to reject the plaint. The trial court has, however, accepted the court fee affixed and held that the matter regarding court fee will be decided after parties adduce evidence. It is further argued that plaintiff- respondent no.1 is liable to pay court fee as per Section 7(iv)(c) of the Court Fees Act, 1870 (hereinafter referred to as the “Act”) with respect to the relief for rendition of accounts. As the amount of court fee affixed by plaintiff-respondent no.1 is not adequate or reasonable, the plaint has to be rejected. The plaintiff-respondent no.1 has failed to affix court fees on immovable properties like the Civil Revision No. 124 of 2006 3 Hanger and the Air Field etc. It is further submitted that by merely stating that plaintiff-respondent no.1 is not seeking any relief with respect to the screw factory, she cannot be absolved of her obligation to affix requisite court fees. It is further submitted that plaintiff-respondent no.1 has not affixed court fees on movable properties, i.e., heir loom jewellary etc., which, as per plaintiff- respondent no.1, is worth “several hundred crores of rupees”. It is further submitted that requisite court fees with respect to agricultural land, vehicles, Faridkot house in Delhi and various other items, have not been affixed or have been assessed incorrectly. Counsel for the plaintiff-respondent no.1 submits that the impugned order does not suffer from error, much less an error of jurisdiction, as would require interference, under Article 227 of the Constitution. The discretion exercised by the trial court is neither illegal, arbitrary nor perverse and should, therefore, be affirmed. It is further submitted that finding recorded in order dated 30.8.1997 that the matter cannot be decided without framing an issue, is no longer relevant. The order dated 30.8.1997 was passed at the initial stage of the suit, when the plaintiff/respondent no.1 had affixed a court fee of Rs.19.50P and had prayed for joint possession. The plaintiff- respondent no.1 has amended the plaint and given up the relief of joint possession. The present dispute has arisen after the amendment of plaint. The plaintiff-respondent no.1 has assessed the value and paid court fee of Rs.15,43,550/-. The trial Court has, therefore, rightly held that the question of inadequacy of court fee, can only be determined after parties lead evidence, with respect to the value of properties. The plaintiff-respondent no.1 has evaluated Civil Revision No. 124 of 2006 4 each item and in case, the defendant-petitioners have any grievance, they would be required to establish their plea by leading evidence so as to prove that the amount, as assessed and affixed, is insufficient and incorrect. As regards movable properties, it is urged that as these properties are not in possession of respondent no.1, it is impossible for her to assess their value. It is further submitted that as plaintiff-respondent no.1 has undertaken to make good the deficiency in court fees on any item as and when quantified, the trial court has rightly held that the question of inadequacy of court fees would be determined with the suit. I have heard counsel for the parties and perused the impugned order. The suit was filed one and a half decade ago claiming rights in the property left behind by the erstwhile Maharaja of Faridkot. The properties are, apparently, under the control of the petitioners. The plaintiff-respondent prayed for a declaration that she is owner of land to the extent of 1/3rd share in the suit properties and claimed joint possession. The plaintiff-respondent no.1 affixed court fee of Rs.19.50P. The defendant-petitioners filed an application under Order 7 Rule 11, Civil Procedure Code, for dismissal of the suit for failure to pay requisite court fee. The plaintiff-respondent no.1, opposed the prayer in the application by raising a plea that the question of evlauation of properties and affixation of court fee should be determined by framing an issue and allowing parties to lead evidence in this regard. Vide order dated 30.8.1997, the trial court rightly rejected this plea by holding that as the plaint is not properly Civil Revision No. 124 of 2006 5 valued for the purpose of court fees, the plaintiff-respondent no.1 is directed to assess market value of suit properties and then make good the deficiency of court fees, by 18.10.1997. The plaintiff- respondent no.1 filed a revision petition, which was dismissed on 08.10.2001. However, while dismissing the revision, the trial court was directed to allow the amendment of the plaint. Aggrieved by the latter part of the order, the petitioner-defendants approached the Hon'ble Supreme Court. Vide order dated 17.8.2005, the latter part of the order directing the trial court to allow amendment of the plaint, was set aside, but liberty was granted to the plaintiff-respondent no.1, to file an application seeking amendment of the plaint. The suit was subsequently amended and the prayer with respect to joint possession of 1/3rd share was withdrawn. After amendment of the plaint, plaintiff-respondent no.1, valued the properties and filed an application for deposit of court of Rs.15,76,45,533/-, A relevant extract from the said application reads as follows: “Sr. No. Name of Property Valuation date as on 12.4.1984 Valuation to be increased by 10% every year (value as in 1992) 1 Faridkot House Copernicus Marg, New Delhi 3,25,12,000/- 6,96,92,359/- 2 Faridkot House 35/48 Diplomatic Enclave 1- Nayya Marg, New Delhi, 99,93,000/- 2,14,20,880/- 3 Okhla Industrial Plot 7,05,000/- 16,62,585/- Civil Revision No. 124 of 2006 6 “Sr. No. Name of Property Valuation date as on 12.4.1984 Valuation to be increased by 10% every year (value as in 1992) 4 Mashobra House 18,91,700/- 40,55,027/- 5 Riviera Apartment, The Mall, Delhi 4,22,000/- 09,04,595/- 6 Hotel Plot Chandigarh 50,55,200/- 1,08,36,266/- 7 Raj Mahal Faridkot on 12.4.81 31,14,374/- 88,85,672/- 8 Qila Mubarik, Faridkot as on 12.4.82 38,22,400/- 99,14,321/- In addition, the fair market price of the following properties existed on the date of suit, is as under:- 1. Stables, Faridkot in an 30,00,000/- area of about 4 acres 2. Surajgarh Fort, Mani Majra (In an area of about 5 acres) 2,00,00,000/- 3. Lloyds Bank Deposits (U.K.) $1,32,200 value in Rs. 58,03,580/- 4. Bank Deposits in India (at the time of Raja's demise) 14,70,248/- _______________________________________________________ Total 15,76,45,533/- 3. That the value for the purpose of court fee of agricultural lands mentioned in the annexures to the plaint, which are assessed to land revenue amounting to Rs. 26136.93. As such its value for the purpose of court fee is 26136.93 x 10 = 261369.30. Civil Revision No. 124 of 2006 7 4. That total value for the purpose of court fee of items mentioned in paras above is Rs.15,76,45,533 + Rs.2,61,369/- = Rs.15,79,06,902/-. 5. That movable properties other than mentioned above and mentioned in the annexure and in the alleged Will are not in the possession or within reach of the plaintiff and as such plaintiff has no means of assessing their value. Similar is the position with regard to Motor Vehicles of all types mentioned in item N (D and E) and other items mentioned in (F to K) as such a fixed court fee of rupees 13/- is affixed. As the plaintiff has no means to assess any amount due after the rendition of accounts, another court fee of Rs.13/- is affixed on that score. The plaintiff undertakes to make up the court fee on these two items as and when the same are quantified at the time of final decree. For the prayer of injunction court fee of Rs.19.50 though affixed earlier is again being paid, as such, the total additional court fee of Rs.15,43,550/- is being paid.” The plaintiff-respondent no.1 assessed the suit properties for the purposes of court fees and affixed a court fee of Rs.15,79,06,902/-. The petitioner-defendants opposed this application by stating that the market value, as assessed, and the court fee, as affixed, is incorrect. The petitioners also alleged that the Air Field, the hanger, the air crafts, ancillary equipments, land and building, the screw factory at Faridkot, the Country Club at Bir Chahal, trees growing at the estate in Mashobra House, heirloom jewellery, Civil Revision No. 124 of 2006 8 other jewellery, arms and ammunition and motor vehicles, have not been assessed. The trial court, after considering the matter in its entirety has held that as the dispute regarding under valuation and insufficient court fee can only be decided after leading evidence, it accepted the tentative court fee and ordered that objections raised by the defendant-petitioners would be decided after parties lead evidence with respect to valuation of the suit properties. An extract from the order passed by trial court reads as follows: “...........But in this regard, I am of the opinion that the valuation assessed by the defendants is only one sided assessment. I think in order to assess the actual value of these articles, I think it will be assessed by an approved valuer to be appointed with the consent of both the parties, if the court fee on the actual assessment of the value of these articles can only be paid by the plaintiff, if the court comes to the conclusion as to how much court fee is to be paid on the value of these articles. Moreover, it has been alleged by the plaintiff that most of the articles are used for ceremonial purposes and are antique items which cannot be sold, as such no stamp duty on the value of these articles as assessed by the defendant is liable to be paid. As such in view of these facts I am of the opinion that until and unless the assessment of these articles is procured from the approved valuer, it cannot be said as to how much amount the plaintiff is liable to pay as stamp duty on the Civil Revision No. 124 of 2006 9 value of these articles. As such it will be in the interest of both the parties if the plaintiff is asked to pay stamp duty on the valuation of these articles only after leading evidence by both the parties in this respect. In view of the foregoing discussion, I have come to the conclusion that at this stage the tentative stamp duty paid by the plaintiff to the tune of Rs.15,43,550/- is to be taken into consideration at this stage. As regards payment of other stamp duty as regards the immovable property and movable property mentioned by the defendants in the written reply, only the plaintiff can be ordered to pay stamp duty if any, only after leading evidence by both the parties. Accordingly application moved by the plaintiff to allow her to pay the stamp duty stands allowed and the objections taken by the defendants stands declined for the time being as after the evidence lead by both the parties the plaintiff can be directed to pay the court fee. Moreover, a separate issue regarding the court fee can be framed.” The petitioners have primarily raised three grievances The first is that most of the properties have been undervalued; the second is that certain immovable and movable properties have not been assessed for the purpose of court fee and the third is that the question of court fee has to be decided at the outset as the trial court, has in its order dated 30.8.1997, already rejected a plea for leading evidence regarding the valuation of suit property. The contentions, with due respect to counsel for the Civil Revision No. 124 of 2006 10 petitioners, are misconceived. The order dated 30.8.1997 was passed when plaintiff-respondent no.1 had not valued the properties and affixed a court fee of Rs.19.50P only and had prayed for joint possession. The situation has undergone a preceptible change since then. The plaint has been amended, the relief of joint possession has been given up, suit properties have been valued and court fees of Rs.15,43,550/- has been affixed. The dispute that remains relate to the valuation of the suit properties and affixation of inadequate court fee. The trial court, after considering the matter in its entirety, has held that the question of incorrect evaluation, non- evaluation of certain properties raises a disputed question of fact, that can only be adjudicated upon after allowing parties to lead evidence. I find no error of jurisdiction or of law in the course adopted by the trial court. The correctness of the valuation by plaintiff- respondent no.1, is a disputed question of fact and, therefore, cannot be determined without parties adducing evidence. The defendant- petitioners, therefore, cannot rely upon the order dated 30.8.1997 so as to plead that the question of valuation of suit properties and inadequacy of court fees should be determined before the suit proceeds. While admitting the revision petition, the proceedings for passing of the final judgment and decree were stayed. The parties must have started leading evidence on the issues framed. It would, therefore, not be appropriate, to interfere with the impugned order and stall the decision of the suit, pending for the last one and a half decades. Civil Revision No. 124 of 2006 11 In view of what has been stated above, the revision petition is dismissed. The trial court is directed to decide the suit, within six months from receipt of a certified copy of this order. 16th December, 2011 ( RAJIVE BHALLA ) VK JUDGE