SHAKUNTALA DEVI Vs. PREM CHAND

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated 21.3.1986 whereby the preliminary issue with respect to Court fee was decided in favour of the defendants and against the plaintiff and she was directed to pay the advance Court fee of Rs. 12,370/- on the value of her share amounting to Rs. 2,00,000/- in the suit property.

(2.) The plaintiff filed this suit against her brothers for partition of the Jindal Rice Mills, Karnal along with its machinery and assets etc. and for the grant of a decree for separate possession of the share of the plaintiff. Prayer has also been made for the grant of a preliminary decree directing defendant No. I to render the accounts. She also prayed for the grant of final decree for recovery of the amount found due to her. In the written statement filed by the defendants, one of the pleas taken was that the suit had not been properly valued for the purpose of Court fee and jurisdiction. The trial Court treated the said issue as preliminary and found that the suit is not governed by the provisions of Article 17 (vi) of Schedule 11 for the purposes of Court fee and jurisdiction and the plaintiff is liable to pay the Court fee on the amount of her share in, the suit property according to section 7 (v) of Court Fees Act. According to the trial Court from the averments made in the plaint, it is clear that the plaintiff was not in possession of any part of the suit property at the time of filing of this suit.

(3.) The learned counsel for the plaintiff-petitioner submitted that the whole approach of the trial Court in this connection was wholly wrong and misconceived. The suit is governed by Article, 17 (vi) Schedule 11 of the Court Fees Act which is equivalent to Article 12 (vi) Schedule 11 of the Haryana Amendment. According to the learned counsel, it has been wrongly held by the trial Court that the plaintiff was not in possession of any part of the suit property at the time of filing of this suit. In support of this contention, he referred to Shiv Devi v. Kidar Nath and others, 1952 AIR(P&H) 280