Remanded

Tarachand Kankaria v. Shantilal Kankaria

Chhattisgarh HC28 Jul 2023WP227/24/2022

Case brief

AI extract

What is this about?

This writ petition challenged an order directing petitioners to pay court fees on half their share of suit property. The High Court held the trial Court failed to frame a preliminary issue and conduct an enquiry as required by Order VII Rule 11-B CPC and remitted the matter.

What did the court decide?

The petition is disposed of and the matter is remitted back to the learned trial Court to frame a preliminary issue concerning court fees, hold a due enquiry, and pass an order afresh.

Tarachand Kankaria Vs Shantilal Kankaria — Property and Title | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP227 No. 24 of 2022

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Tarachand Kankaria S/o Late Pabudan Ji Kankaria, Aged About 75 Years, R/o Gavli Para, Durg, Tahsil and District Durg Chhattisgarh.

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Ashish Jain S/o Late Premchand Kankaria, Aged About 42 Years, R/o Shiv Para, Durg, Tahsil and District Durg Chhattisgarh.

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Ankush Kankaria S/o Late Premchand Kankaria, Aged About 36 Years, R/o Shiv Para, Durg, Tahsil and District Durg Chhattisgarh.

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Smt. Kiran Devi Kankaria W/o Late Premchand Kankaria, Aged About 61 Years, R/o Shiv Para, Durg, Tahsil and District Durg Chhattisgarh.

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Smt. Rakhi Kochar W/o Shri Chandan Kochar, Aged About 40 Years, R/o Baijnath Para, Raipur, Tahsil and District Raipur Chhattisgarh.

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Smt. Rashmi Monot W/o Dr. Mikin Monat, Aged About 38 Years, R/o Shailendra Nagar, Raipur, Tahsil and District Raipur Chhattisgarh.

Plaintiffs

---- Petitioners

Versus

Shantilal Kankaria S/o Late Pabudan Ji Kankaria, Aged About 71 Years, R/o Shiv Para, Durg, Tahsil and District Durg.

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Smt. Saroj Devi Kankaria W/o Shri Shantilal Kankaria, Aged About 69 Years, R/o Shiv Para, Durg, Tahsil and District Durg Chhattisgarh.

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Smt. Leela Devi Bothra W/o Shri Shantilal Bothra, Aged About 63 Years, R/o Sadar Bazar, Raipur, Tahsil and District Raipur Chhattisgarh.

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Smt. Bimla Devi Bafna W/o Shri Uttam Chand Bafna, Aged About 59 Years, R/o Bharkapara, Rajnandgaon, Tahsil and District Rajnandgaon Chhattisgarh.

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State Of Chhattisgarh Through District Magistrate Durg, District : Durg, Chhattisgarh

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Defendants

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---- Respondents

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(Cause-title taken from Case Information System)

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For Petitioner : Mr. P.R. Patankar, Advocate. For Respondent No.1 to 4 : Mr. Shobhit Koshta, Advocate. For State/Respondent No.5 : Mr. Himanshu Kumar Sharma, Panel Lawyer.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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28.07.2023

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The petitioners/plaintiffs have challenged the order dated 02.12.2021 passed by the learned District Judge, Durg in Case No.1062/2021 whereby the learned Court has directed the petitioners to pay court fees on half of the market value of their share according to the provisions of Section 7(iv-a) (a) of the Court Fees Act.

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The facts of the case are that, plaintiff No.1, defendant No.1, 3 and 4 are brothers, defendant No.2 is the wife of defendant No.1, plaintiff No.2 to 6 are legal heirs of late Premchand Kankaria, who was also the brother of plaintiff No.1 and defendant No.1. The plaintiffs filed a civil suit for declaration of title, permanent injunction pertaining to the suit land specified in the Schedule A, B, C and D attached to the plaint and made specific prayer for declaration of their possession over the property which they got on the basis of

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oral partition. Later on, the oral partition was reduced into writing vide partition deed dated 07.06.2021. The petitioners valued the suit for declaration at Rs. 59,21,000/-, Rs.49,07,500/-, Rs.92,90,000/-, Rs.46,70,000/- respectively and for permanent injunction at Rs.5000/- and affixed total court fess of Rs.2,500/-. The learned trial Court vide order dated 02.12.2021 heard the arguments on court fees and on the basis of averments made in the plaint and relief sought, directed the petitioners to affix court fees on half of the market value corresponding to their share in the suit property within 15 days. The petitioners have challenged the order passed by the learned trial Court.

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Learned counsel for the petitioners would submit that the learned trial Court ought to have decided this issue after framing preliminary issue and holding preliminary enquiry as the petitioners are in possession of their respective share from the date of partition. Mr. Patankar placed reliance on the Full Bench judgment of the M.P. High Court in the case of Subhash Chand Jain Vs. The Chairman, M.P. Electricity Board and others , reported in 2000(4) M.P.H.T. 318 (FB), where it is held that the court should enquire into the issue in the interest of revenue after realising that the valuation of plaintiff is demonstratively unreasonable and case for interference is made out. In para 6 and 7 of the

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aforesaid judgment the M.P. High Court has held that:-

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"6. The suits which are mentioned under Section 7 (iv) of the Act of 1870 are of such nature where it is difficult to lay down any standard of valuation. This means that the valuation of the reliefs will have to be made by the plaintiff under the entry against which the suit is preferred. Provisions of Order 7 Rule 11-B of the C.P.C. provides inter-alia that the plaint shall be rejected where the relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time fixed by it, fails do so. Under this provision, Court has to reach a finding of under-valuation, specify the correct valuation of the relief, determine the same and require the plaintiff to correct the same within the time fixed by the Court. Failure to do so would entail rejection of the plaint. Obviously, the Court would undertake this enquiry in the interest of revenue after realising that the valuation of plaintiff is demonstratively unreasonable and case for interference is made out. Otherwise the plaintiff is free to make his own estimation of the reliefs sought in the plaint and the valuation both for purposes of Court fee and jurisdiction has to be ordinarily accepted.

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Settled legal position seems to be that plaint has to be read as a whole. Allegations in the plaint including the substantive relief claimed must be the basis for settling the Court fee payable by the plaintiff. Mere astuteness in drafting the plaint would not glaze the jurisdiction of Court for looking at the substance of the relief asked for. The nature of suit under Section 7 (iv) is such where the Legislature could not lay down fixed standard thereby leaving it to the plaintiff to mention it. But where he attempts to under-value the plaint and the reliefs, Court has to intervene. While doing so, concept of real money value forms integral part of Court enquiry where relief sought has real money value which can be objectively ascertained. Where a plaintiff has been made liable to pay specified amount and asked to pay the same and he claims to avoid it, obviously, he seeks relief to that effect and in case, he avoids payment of Court fee by drafting the plaint in such a way that results in under-valuation of the plaint and the relief, it will be a case of arbitrary and unreasonable under-valuation which Court is bound to correct.”

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On the other hand, learned counsel for the respondent No.1

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to 4 and learned counsel for the State would oppose the submissions made by learned counsel for the petitioners.

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I have heard learned counsel for the parties and perused the documents.

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The learned trial Court fixed the case for arguments on court fees suo moto without there being any application in this regard and passed the impugned order on 02.12.2021. The learned trial Court without framing any preliminary issue in this regard came to the conclusion that the petitioners/plaintiffs have not paid proper court fees. According to the provisions of Order 7 Rule 11(b) of the CPC, the learned trial Court ought to have framed preliminary issue and after due enquiry, order should have been passed in this regard, whereas, no such exercise has been done by the learned trial Court, therefore, without commenting anything on merits of the case, this matter is remitted back to the learned trial Court to frame a preliminary issue concerning court fees and after due enquiry, pass an appropriate order afresh after affording due opportunity of hearing to the parties.

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With the aforesaid observation(s) and direction(s), this petition stands disposed of.

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Sd/- (Rakesh Mohan Pandey) Judge

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Aadil

Tarachand Kankaria v. Shantilal Kankaria

Case brief

What is this about?

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Tarachand Kankaria v. Shantilal Kankaria

Case brief

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