RAMVILASH Vs. OMPRAKASH

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order dated 14-12-2012 in Civil Suit No. 3-A/2012, wherein defendants' application under Order VII Rule 11, CPC has been rejected. Facts necessary for disposal of this petition are to the effect that respondents/plaintiffs have filed a suit for declaration, injunction, partition and possession. During pendency of the suit an application under Order VI Rule 17, CPC was filed whereunder plaintiffs sought to clarify the fact as regards actual property for seeking their specific share and, therefore, had sought amendment that instead of three houses, as stated in the plaint, in fact there is only one house of which 1/3rd share has been sought for partition and possession. Amendment was allowed as the same was found to be not changing the nature of the suit. As a sequel thereto defendant Nos. 1 to 3 have filed an application with the contention that by amendment since plaintiffs have sought 1/3rd share of the suit house and also that of possession, therefore, the Court-fees ought to be paid for partition and for possession. Trial Court passed the order that the plaintiffs shall pay the Court-fees on the basis of valuation of share in the suit house and for the relief of possession. It applies that plaintiffs did not pay the Court-fees as was indicated in the order dated 19-1-2011. Defendant Nos. 1 to 3 under such circumstances filed an application under Order VII Rule 11, CPC, inter alia contending that as the plaintiffs have failed to comply with the order dated 19-1-2011 in the matter of payment of Court-fees, therefore, the suit deserves to be dismissed. The application was resisted by the plaintiffs/respondents with the contention that amendment has been carried out and requisite Court-fees is already affixed in the suit memo, and, therefore, prayed for dismissal of the application.

(2.) The Trial Court with reference to order dated 19-1-2011 has observed that plaintiffs have sought declaration, permanent injunction as regards 1/3rd share in the suit house and have accordingly valued the suit and paid the Court-fees and, therefore, under such circumstances application under Order VII Rule 11, CPC is found to be misconceived and accordingly dismissed the same.

(3.) Learned Counsel for the petitioners submitted that once the Court had allowed the amendment, whereunder plaintiffs have sought relief of partition and possession of 1/3rd share in the suit property, plaintiffs ought to have affixed the Court-fees as provided for under Section 7(vi-a) of the Court-fees Act, which deals with the Court-fees payable in a suit for partition. Section 7(vi-a) reads as under:--