ASHOK KUMAR GULHARE Vs. RAKHI KESHARWANI

JUDGEMENT

(1.) By way of this petition, the applicant has challenged the order passed by learned IVth Civil Judge Class-II, Bilaspur in Civil Suit No. 112A/2019 dtd. 14/12/2022 whereby the application moved by applicant/defendant No. 4 under Order VII Rule XI of CPC has been rejected.

(2.) The facts of the present case are that the applicant and nonapplicants are legal heirs of the late Chhanu Sao. The original suit was filed by the father of present non-applicants No. 1 to 4 i.e. Lt. Rajkumar Kesharwani seeking a declaration of preemption and permanent injunction. The suit was valued at Rs.600.00 for preemption and Rs.600.00 for permanent injunction. During the pendency of the civil suit, the original plaintiff expired and his legal heirs i.e. non-applicants No. 1 to 4 were brought on record. An application under Order VII Rule XI of CPC was moved by the present applicant on the ground that as per the agreement dtd. 27/2/2019, defendant No. 1 received an amount of Rs.8,00,000.00 and a cheque to sell the suit house. It is further pleaded in the application that the suit ought to have been valued as per the consideration of the agreement. It is also pleaded that the suit is not maintainable before the IVth Civil Judge Class-II, Bilaspur as per the pecuniary jurisdiction. It is also stated that the plaintiff failed to pay the appropriate court fees. The application was replied to by the plaintiff and the trial Court vide order dtd. 14/12/2022 rejected the application on the ground that the parties are legal heirs of Lt. Chhanu Sao and the suit property was partitioned between the members of the family as it is an ancestral property; defendant No. 1, in whose name, the suit property is recorded wants to alienate the property, therefore for declaration of preemption, suit is valued at Rs.600.00 and for permanent injunction, it is valued at Rs.600.00 and the plaintiff has affixed court fees of Rs.260.00 strictly in accordance with the Court Fees Act, 1870 and thus application so moved was rejected.

(3.) Learned counsel appearing for the applicant argued that Sec. 7 of The Court Fees Act, 1870, particularly Sec. 7(vi) which deals with 'enforcing a right of preemption' says that "if the plaintiff claims to pre-empt for a fair consideration, on the value of the subjectmatter as stated in the plaint". He further argued that the plaintiff was required to affix the court fees as per the alienation of the suit property whereas he has simply valued the suit for declaration and permanent injunction. He also argued that the trial Court committed an error of law in rejecting the application.