KUSUM LATA JAISWAL Vs. AJITESH JAISWAL

JUDGEMENT

(1.) THIS civil revision under Section 115 of the Code of Civil Procedure (in short 'C.P.C.') has been directed against the order dated 09.4.2012 passed by the Civil Judge/Additional J.S.C.C., Bareilly in Original Suit No. 562 of 2007, dismissing the application 147 -C of the defendant no. 3 (revisionist) seeking rejection of the plaint under provisions of Order VII Rule 11 C.P.C.

(2.) THE facts in brief giving rise to this revision briefly stated are that the plaintiff -respondents no. 1 and 2 filed the suit in question against the defendant -revisionist and the proforma respondents no. 3, 4 and 5, inter alia, alleging that the plaintiffs are the owners of the property in suit. The defendants are in possession of the said property as licensee. The defendants did not restored possession over the property to the plaintiffs despite the licence has been revoked and the plaintiffs demanded vacant physical possession over the property. The plaintiffs therefore constrained to file the suit for mandatory injunction directing the defendants to vacate the property in suit and to hand -over physical possession to the plaintiffs. The defendants/proforma respondents herein, filed their written statement. The revisionist has not filed her written statement till now. The trial court on the basis of the pleadings of the parties, framed issues. The issue no. 3 relating to under valuation of the suit and payment of insufficient court fees, was decided as preliminary issue vide order dated 13.8.2009 of the trial court and it is held that the suit property is under valued and enhanced the valuation from Rs. 5 lacs to Rs. 50 lacs. The court also held that since it is a suit for mandatory injunction, therefore, the court fees Rs. 500/ - paid by the plaintiffs is sufficient. The revisionist/defendant moved the application under Order VII Rule 11 C.P.C. praying for rejection of the plaint alleging that despite the order dated 13.8.2009, the plaintiffs have not corrected the valuation clause of the plaint, within the time fixed by the court and that the ad valorem court fees Rs. 3, 75, 409/ - as per amended valuation, has not been paid.

(3.) THE trial court vide the impugned order disposed of the application 147 -C and the objections against it 148 -C of the plaintiffs. It is held that the plaintiffs -respondents no.1 and 2 have corrected the valuation of the suit property as per order of the court. It is also observed that the plea taken by the defendant/revisionist regarding non -mentioning the total valuation of the reliefs claimed in relief clause is technical in nature which can be cured at any state of the proceedings. The lower court accordingly directed the plaintiffs to amend the valuation clause showing aggregate valuation for all the reliefs claimed in the plaint. So far as the payment of court fees is concerned, the court below was of the view that the plaintiffs have claimed relief of mandatory injunction on which maximum court fees of Rs. 500/ - is payable, has already been paid by the plaintiffs and as such the objection regarding the payment of insufficient court fees was misconceived and has been raised without any substance. Learned lower court directed the plaintiffs to mention the valuation of the suit as per total reliefs claimed in the plaint. The plaintiffs in compliance thereof, moved an application 159 -A seeking amendment in the valuation clause of the plaint showing the total valuation as Rs. 50,00,200/ - which was allowed by the court on 26.4.2012 and necessary amendment in the valuation clause of the plaint has been carried out.