HARDEEP SINGH Vs. BALDEV SINGH

JUDGEMENT

(1.) THIS petition impugns an order dated 21.12.2012 of the learned ADJ, Tis Hazari Courts in Suit No.434/2012 whereby the plaint was returned to the plaintiff/petitioner under Order VII, Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') to be filed before the Court of appropriate jurisdiction. The Court was of the view that the valuation report of the suit property as on 10.9.2012 showed it to be of the value of Rs.40,73,500/ -, which was more than its pecuniary jurisdiction where the suit was filed. In these circumstances, the plaint was returned.

(2.) THE petitioner has challenged the impugned order on the ground that he was seeking only 1/4th of the share in the suit property bearing No.221/71A, S -Block, Vishnu Garden, New Delhi. The suit property is said to be an area of 100 sq.yds. The petitioner claims an equal share of 25 per cent in the suit property along with the respondents which is claimed to have been acquired by his deceased mother from her own savings and resources. He contends that his request for division of the property for his portion was unheeded, hence, a legal notice was served, which too went unanswered. The petitioner had assessed the value of his share, i.e. 25 per cent on Rs.19,45,000/ - for which ad valorem court fee, had been paid. However, the valuation report showed the properties valued at Rs.40,73,500/ -, according to which the petitioner's share came to be Rs.10,18,375/ - and the court fee payable thereon would be Rs.12,299/ -, which is far less than what had already been paid. The learned counsel for the petitioner has argued that the Trial Court erred in taking the value of the entire property into consideration for the purpose of jurisdiction instead of the share claimed by the petitioner/plaintiff. He submits that the Court is required to take into consideration the value of the share claimed and not of the entire property. In support of his contentions he relied upon the following judgments:

(3.) COUNSEL for the plaintiff has made reference to Jagdish Pershad v. Joti Pershad : 1975 Rajdhani law Reporter 203, wherein it has been laid down that keeping in view the peculiar facts of the case that where the plaintiff claims to be in joint possession of the property of which partition is sought, the plaintiff is to pay only fixed court fee as per Article 17(vi) in Schedule II. There is no dispute about this proposition of law. Counsel for the plaintiff has then placed reliance on Neelavathi & others V. N. Natarajan & others , wherein the Supreme Court has laid down that it is settled law that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. It was held that the general principle of law is that in the case of co -owners the possession of one is in law the possession of all unless ouster or exclusion is proved. I think these observations of the Supreme Court go against the case of the plaintiff because in the present case reading of the whole of the plaint makes it clear that the plaintiff is alleging ouster from possession and thus, the plaintiff has to pay ad valorem court fee on the value of her share. I order accordingly. the deficiency in the court fee be made up within ten days and the suit be listed for further proceedings on August 21, 1990, in Short Matters."