B.P. NAAGAR Vs. RAJ PAL SHARMA

JUDGEMENT

(1.) Leave granted. This appeal by special leave is directed against the final order dtd. 2/12/2019 passed by the High Court of Delhi, whereby it allowed C.M. (M) No.686 of 2019 and C.M. (App.) No.20889 of 2019 and set aside the orders dtd. 1/7/2017 and 2/3/2019 passed by the Court of Additional District Judge, II, Central Tis Hazari Courts, New Delhi. The Defendant Nos. 5 to 9 in the suit are the appellants herein and the plaintiff therein is the respondent herein. It is to be noted that Annexure P-14, Memorandum of Writ Petition, which culminated in the impugned order, would reveal that it was filed under Article 227 of the Constitution of India read with Sec. 115 of the Code of Civil Procedure, 1908 (for short, 'CPC'), challenging the orders dtd. 1/7/2017 and 2/3/2019. Considering the rival contentions, it is only apposite to refer to the orders dtd. 1/7/2017 and 2/3/2019 passed by the Trial Court to know their nature for an appropriate disposal of this appeal.

(2.) Order dtd. 1/7/2017 passed by the Trial Court in CS(OS) No.612960/2016, exhibited as Annexure P-7 in the captioned appeal, would reveal that it was an order passed in an application filed under Order VII Rule 11 CPC, moved on behalf of defendant No.5/ the second appellant in the captioned appeal. In fact, the suit was originally filed by the respondent herein before the High Court viz., CS(OS) No.809/2011 for declaration and cancellation of the gift deed dtd. 27/4/2010 and sale deed dtd. 10/1/2011 and also for mandatory injunction and permanent injunction. Originally prayers (a) to (e) were sought for in the plaint. However, vide order dtd. 20/5/2015, the plaintiff/the respondent herein was permitted by the High Court to abandon prayers (c) and (d) made in the plaint and thus, the suit was pursued qua prayers in (a), (b) and (e) only. Later, it was transferred to the Court of Additional District Judge-II, Central, Tis Hazari Court, New Delhi pursuant to the enhancement of the pecuniary jurisdiction of the Civil Courts. In the context of the contentions and the nature of the order impugned, it is profitable to refer to prayers (a), (b) and (e) in the plaint and they read thus:-

(3.) In the application filed under Order VII Rule 11, CPC, praying for rejection of the plaint before the Trial Court it was contended by the 5th defendant/the second appellant herein that the suit was not properly valued for the purposes of Court fee and proper Court fee was not paid. It was further contended therein that since the plaintiff/the respondent herein had valued the suit, as is evident from the plaint, at Rs.1.00 Crore he was required to pay ad valorem Court fee on the said amount. Obviously, the plaintiff/the respondent herein resisted the prayer for rejection of the plaint and after a detailed consideration based on the rival contentions raised, the Trial Court passed order dtd. 1/7/2017 as under: -