CR No. 4538 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 4538 of 2010 Date of decision:- 31.8.2010 Raj Kumar Aurora @ Madhu Sudhan ......petitioner (through his attorney) vs. Mrs. Arti Nobbs ......respondent (through her attorney) CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Saurabh Kapoor, Advocate for the petitioner. Mr. Amarjeet Markan, Advocate for the respondent HEMANT GUPTA, J (ORAL) Challenge in the present revision petition is to the order passed by the learned trial Court on 13.5.2010, whereby an application filed by the petitioner- defendant for abandonment of claim of damages in the counter claim on account of non-payment of Court fee was rejected. The plaintiff-respondent filed a suit for declaration to the effect that the plaintiff is the owner in possession of the property. The defendant is none else but the brother of the plaintiff wherein he filed a counter claim claiming a decree for declaration, rendition of accounts and permanent injunction. The defendant also claimed damages to the tune of Rs. 50.00 lacs by way of a counter claim. The value of counter claim for the purpose of court fee for the relief of damages was said to be not ascertainable. Therefore, the same was fixed at Rs. 25,000/- on which a court fee of Rs. 2100/- was affixed. However in respect of the relief of permanent injunction, the petitioner affixed the court fee at Rs. 130/- after CR No. 4538 of 2010 -2- assessing the value for the purpose of court fee at Rs. 130/-. In the said suit, learned trial Court passed the order on 4.3.2010 calling upon the defendant- petitioner to make up the deficiency of court fee as per the claim of damages amounting to Rs. 50.00 lacs. After the aforesaid order was passed, the defendant- petitioner filed an application to abandon his claim for damages in counter claim. It is on the said application, the learned trial Court passed an order that defendant-petitioner can be permitted to withdraw the counter claim with respect to damages but only after affixing of ad-valorem court fee. Learned counsel for the respondent has raised objection that since the counter claim has been ordered to be rejected under Order 7 Rule 11 of the Code of Civil Procedure, therefore, such an order amounts to decree and thus, the appeal is maintainable. Reliance is placed upon the judgment passed by the Supreme Court titled as Shamsher Singh vs. Rajinder Prashad and others , AIR 1973 SC 2384 and a judgment passed by the Calcutta High Court titled as Narayan Chandra De vs. Pratirodh Sahim, AIR 1991 Calcutta 53 and a judgment passed by this Court titled as Labh Singh vs. The Collector Ludhiana, 1978 PLJ 17 Learned counsel for the petitioner has vehemently argued that the order dated 13.5.2010 is an order declining the application for withdrawal of claim of damages. The order of rejection of a plaint is consequent order. The order rejecting the counter claim is not specifically challenged before this Court and therefore, the revision petition is maintainable. After hearing learned counsel for the parties, I am of the opinion that the order passed by learned trial Court suffers from patent illegality and material irregularity. It is open to the defendant-petitioner to relinquish part of the claim at any stage of the proceedings in terms of the Order 23 Rule 1 of the Code of Civil Procedure. The party can restrict at any point of time his claim so as to bring the CR No. 4538 of 2010 -3- same within the jurisdiction of the Court. Therefore, to return a finding that the petitioner is required to affix ad-valorem court fee before, the defendant can be permitted to withdraw counter claim, is not sustainable in law. Since the application is for withdrawal of claim of damages, the order passed is revisable, the order of rejection of counter claim being only consequential order. Consequently, the present revision petition is allowed. The defendant-petitioner is permitted to withdraw his claim for damages in the counter claim. Allowed in the above terms. (HEMANT GUPTA) JUDGE 31.8.2010 preeti