MANILAL AGRAWAL Vs. GHANASHYAM DAS AGRAWAL

JUDGEMENT

(1.) The petitioner, who is defendant No. 1 in Title Suit No. 56 of 1997 in the Court of learned Civil Judge (Senior Division), Titilagarh, has filed this revision challenging the legality of the order dated 22.12.2005 passed in that suit on the petition under Order 7 Rule 11(c), C.P.C. filed by the petitioner.

(2.) OPPOSITE party No. 1 as plaintiff the above noted Title Suit No. 56 of 1997 with a prayer for partition of the suit schedule properties. Petitioner -defendant No. 1 filed a petition under Order 7 Rule 11(c), C.P.C. praying for dismissal of the suit for non -filing of proper court -fee, inter alia, indicating that the suit filed by opposite party No. 1 is not a suit for partition simplicitor, but in the guise of a partition suit, prayer has also been made for declaring some sale transactions as void and so ad valorem court -fee is payable and for non -payment of required court -fees, the plaint is liable to be rejected. In support of such plea, the petitioner cited the decisions of this Court as well as the apex Court. The plaintiff -opposite party No.1 however maintained that it was a suit for partition simplicitor and ad volerum court -fee is not payable. It was also contended that in case the Court finds that court -fee is payable, the same can be realized at a later stage or even after disposal of the suit. The learned trial Court after hearing the parties, by the impugned order rejected the petition filed by the petitioner -defendant No. 1 with observation that in case more court -fee is payable, the office can quantify the same and it can be realized and that the suit cannot be thrown away at the threshold.

(3.) MR . S.N. Mohapatra, learned Counsel appearing for the opposite party No. 1, on the other hand, contends that several facts may be noted in the plaint to explain the situation, but the nature of the suit has to be decided basically on the relief sought for by the parties and since in the instant case, the plaintiff has simply asked for partition of the suit properties, ad valorem court -fee was not payable and so the learned trial Court rightly rejected the prayer of the petitioner. He further contends that payment of court -fee is a matter between the Court and the plaintiff and the defendants have no role to play in the same and in case the Court feels at any stage of the proceeding that further court -fee is payable, the same can be realized from the plaintiff even after disposal of the suit.