RAMESH KUMAR BHAGCHANDKA Vs. MAHESH KUMAR BHAGCHANDKA

JUDGEMENT

(1.) VIDE order dated August 19, 2013 application under Order VII Rule 11 of the Code of Civil Procedure filed by respondent No.1 praying that the plaint be rejected was partially reflected upon by the learned Single Judge only on the subject whether proper court fee had been affixed on the plaint by the appellant. Holding, that in view of the pleadings in the plaint wherein the appellant had neither pleaded actual nor constructive possession of the suit properties, the appellant was required to pay ad -valorem court fee and since appellant himself has pleaded that even as per conservative estimate the value of the properties would be Rs.1000,00,00,000/ - (Rupees One Thousand Crores only), hearing was deferred to enable the appellant to pay the requisite court fee within 8 weeks. Compliance not being made with the said order the plaint has been rejected vide impugned order dated December 05, 2013 while simultaneously dismissing IA No.16970/2013 filed under Order VI Rule 17 of the Code of Civil Procedure praying to incorporate pleas that the appellant was either in physical or constructive possession of several properties partition whereof was claimed.

(2.) OUR job in appeal would thus be two -fold. Firstly whether IA No.16970/2013 was rightly dismissed and secondly to see whether the averments in the plaint would warrant ad -valorem court fees to be paid on the value of the properties being Rs.1000,00,000,00/ - (Rupees One Thousand Crores only).

(3.) APPELLANT pleaded that he and his brothers - the defendants (heirs of late brothers) were of the trading community in Rajasthan having a custom that the male children with their father would invariably constitute Hindu Joint Family even after the father 's death. That the father of the parties Lakhi Prashad died on October 18, 2004 and during his life time he and his sons constituted a Joint Hindu Family. Various companies names whereof were disclosed in Schedule 1 to the plaint, being 60 in number, were incorporated with shareholding as per Schedule 2 (and we find that in the said Schedule shareholding only in 24 companies has been indicated). That the main companies, being 3 in number were as per Schedule 3, all of which belong to the joint family. Lands detailed in Schedule 4 and Schedule 5 were acquired in the names of different companies or members of the family. It was pleaded that irrespective of whether the assets were individual, joint, or held by a company or a trust, they were always treating as belonging to the joint family. It was pleaded that before the father died he had expressed a wish that the brothers should separate because the businesses were becoming somewhat unmanageable. It was pleaded that such businesses and properties which were controlled by the first defendant were held out by him to be his. Immediately thereafter it was pleaded, and we refer to paragraph 18 of the plaint, that as of the date when the suit was filed the entire businesses and properties were directly/indirectly under the control of the first defendant. It was pleaded that the first defendant claims all of them to be his personal property. Seeking partition, in paragraph 37, for purposes of value of the suit qua jurisdiction it was valued at Rs.1000,00,000,00/ - (Rupees One Thousand Crores only) but for purposes of court fee it was valued at Rs.250/ - (Rupees Two Hundred and Fifty only).