Allowed

Tejendra Singh Bindra Son of Shri Teerath Singh, v. Narendra Singh Son of Late Shri Harman Singh

Rajasthan HC1 Nov 2022CFA/640/2022

Case brief

AI extract

What is this about?

This appeal challenges the rejection of a counter claim for lack of court fees. The High Court, while allowing the appellant a final opportunity to pay fees, set aside the impugned order and expedited the trial schedule to conclude the underlying partition suit by May 2023, criticizing the appellant's dilatory conduct.

What did the court decide?

Impugned order dated 09.05.2022 set aside; appellant permitted to value counter claim and pay fees within three weeks; trial concluded by end of May 2023.

Tejendra Singh Bindra Son of Shri Teerath… — Contract and Commercial Disputes | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil First Appeal No. 640/2022

¶3

Tejendra Singh Bindra Son Of Shri Teerath Singh, Aged About 43 Years, Resident Of F-54, Gurunanak Marg, Near Ghiya Marg, Bani Park, Jaipur (Raj.).

¶4

----Appellant-defendant

¶5

Versus

¶6

Narendra Singh Son Of Late Shri Harman Singh, Resident Of Plot No. C-5, Sanjay Colony, Nehru Nagar, Jaipur.

¶7

-----Respondent-plaintiff

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Tirath Singh Son Of Late Shri Harnam Singh, Resident Of F-54, Bani Park, Shri Gurunanak Marg, Jaipur.

¶9

Ajit Singh Son Of Late Shri Harnam Singh, Resident Of Plot No. C-11, Sanjay Colony, Nehru Nagar, Jaipur.

¶10

Harbhajan Singh Son Of Late Shri Harnam Singh, Resident Of F-54, Banipark, Shri Gurunanak Marg, Jaipur.

¶11

Satnam Kaur W/o Shri Satish Kumar D/o Late Shri Rajendra Singh, Resident Of House No. Q-1, Near Jal Sadan, Lajpat Nagar, Kasturba Niketan Complex-II, New Delhi-24.

¶12

Smt. Manjeet Kaur W/o Shri Satish Kumar Puri, Resident Of T- 156, Block Number C-14, Rangoli Garden, Ahead Of Vaishali Nagar Baipass, Jaipur.

¶13

Smt. Ranjeet Kaur W/o Shri Kanwarjeet Singh Narang, Resident Of 89, Mahaveer Nagar Second, Near Durgapura Flyover, Jaipur.

¶14

----Respondents-defendants

¶15

For Appellant(s) : Mr. Anand Sharma For Respondent(s) : Mr. Ramesh Chandra Kumawat

¶16

HON'BLE MR. JUSTICE SUDESH BANSAL

¶17

Judgment

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01/11/2022

¶19

The instant first appeal has been preferred by defendant No.7, feeling aggrieved by rejection of his counter claim vide order dated 9.5.2022 under Order 7 Rule 11 CPC because of nonpayment of Court fee (as required to be paid under Section 24(b) of the Rajasthan Court Fees and Suit Valuation Act, 1961), despite directions issued by the trial Court vide order dated 7.3.2022 in

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(2 of 11)

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[CFA-640/2022]

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respect of seeking declaration of ownership for plot No.F-54, Bani Park, Jaipur

¶23

Heard counsel for appellant and respondent-plaintiff, perused the impugned order and relevant record.

¶24

It appears that respondent No.1-plaintiff has instituted civil suit on 7.8.2010 seeking partition of the property bearing House No.F-54, Bani Park, Jaipur alleging inter alia that suit property was left by late Shri Harnam Singh and Smt. Basant Kaur. It appears that plaintiff claimed his 1/5th share though it has come on record that Harnam Singh was survived by his five sons and one daughter. Plaintiff and defendants No.1, 2 and 3 are four sons, defendant No.4 is daughter of fifth deceased son Rajendra Singh and defendants No.5 and 6 are two daughters of deceased daughter Smt. Jaswant Kaur daughter of Harnam Singh.

¶25

It has revealed from the record that appellant moved an application under Order 1 Rule 10 CPC dated 12.10.2018 claiming that during course of trial of suit, he has purchased the share of defendant No.6 through registered sale deed dated 16.11.2015 and has entered into agreements to sale from other defendants co-sharers. Appellant claims to purchase half of 1/6th share of defendant No.6 Smt. Ranjeet Kaur through sale deed. Application under Order 1 Rule 10 CPC was dismissed by the trial Court vide order dated 11.12.2018. Appellant preferred S.B. Civil Writ Petition No.827/2019. The writ petition was allowed vide order dated 2.12.2021 only on the basis of that appellant has purchased the share of defendant No.6 through registered sale deed, therefore, appellant was allowed to be made party to this suit for partition. Thus, it is apparent that appellant-defendant No.7 steps in the shoe of defendant No.6. Since the suit for partition was

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(3 of 11)

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[CFA-640/2022]

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pending since 7.8.2010, therefore, the High Court also issued directions to the trial Court to decide the suit preferably within a period of six months.

¶29

Thereafter, appellant has been impleaded as defendant No.7 in the present suit and defendant No.7 submitted his written statement along with counter claim on 16.2.2022. From perusal of order dated 2.12.2021 passed by the High Court in S.B. Civil Writ Petition No.827/2019, he was impleaded as party on the basis of purchasing the share of defendant No.6 through registered sale deed and thus, it is obvious that defendant No.7 steps in shoe of defendant No.6, yet the defendant No.7 in his counter claim, claimed relief of declaration of ownership of the entire suit property bearing Plot No.F-54, Bani Park, Jaipur. However, this is the point to be considered by the trial Court while deciding the counter claim finally.

¶30

At this stage, plaintiff moved an application under Order 7 Rule 11 CPC dated 21.2.2022 and it was pointed out that defendant No.7 has not valued the valuation of suit property bearing plot No.F-54, Bani Park, Jaipur nor has paid any Court fees, for the purpose of claiming ownership over the property. This application was replied by appellant-defendant No.7.

¶31

Learned trial Court, vide order dated 7.3.2022 decided this application. The trial Court, in its order dated 7.3.2022 has observed that defendant No.7 in his counter claim has made a prayer for declaration of ownership of suit property and has sought for a consequential relief for permanent injunction alleging his possession with defendant No.1, therefore, he should pay Court fees as per the provision of Section 24 (b) of the Rajasthan Court Fees and Suit Valuation Act, 1961. This order dated

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(4 of 11)

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[CFA-640/2022]

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7.3.2022 and directions to assess the valuation of suit property and to pay Court fees as indicated in Section 24(b) of the Act of 1961 has attaining finality as neither plaintiff nor defendant No.7 ever assailed this order/ directions. It appears that appellantdefendant No.7 instead of making valuation of his counter claim in respect of property bearing plot No.F-54, Bani Park, Jaipur and payment of Court fees as per Section 24(b) of the Act of 1961, paid an additional Court fee of Rs.200/- only on 11.3.2022.

¶35

Thereafter, plaintiff again moved application dated 19.4.2022 invoking provisions of Order 7 Rule 11 CPC and stated that as per the DLC rate prevailing in the area, the valuation of suit property is 1,62,90,018/- and the value of construction is 40,56,000/-. It was alleged that since defendant No.7 has neither valued the suit property nor has paid the sufficient Court fee, despite the order dated 7.3.2022, therefore, his counter claim be rejected. 9. Defendant No.7 replied this application on 28.4.2022 and contended that Court fees of Rs.200/- paid by him in compliance of the order dated 7.3.2022 is sufficient. 10. Learned trial Court, vide impugned order dated 9.5.2022 has rejected the counter claim of defendant No.7 in respect of seeking relief for declaration of ownership for suit property bearing plot No.F-54, Bani Park, Jaipur. Learned trial Court has observed in the order that plaintiff in his application under Order 7 Rule 11 CPC stating the DLC rate of suit property which has not been refuted by defendant No.7, therefore, defendant No.7 has not complied with the order dated 7.3.2022 and accordingly his counter claim for declaration in respect of property bearing plot No.F-54, Bani Park, Jaipur, has been rejected. The order dated 9.5.2022 has been challenged by defendant No.5 by way of instant first appeal.

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(5 of 11)

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[CFA-640/2022]

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Counsel appearing on behalf of appellant-defendant No.7, argued that since in the order dated 7.3.2022, there was no specific directions to make assessment of valuation of suit property and to pay the requisite Court fees, therefore, appellants may not be held guilty for non-compliance of the order once he has paid an additional Court fees of Rs.200/-. However, in the alternative, counsel for appellant, on instructions of his client who is present in the Court, candidly gave a proposal that his client is agreeable to make the valuation of his counter claim in respect of suit property bearing plot No.F-54, Bani Park, Jaipur according to the valuation as assessed by plaintiff in his suit. He pointed that in the suit for partition, respondent No.1-plaintiff has assessed valuation of his 1/5th share of suit property as Rs.10 lac and accordingly the valuation of entire property comes to Rs.50 lac. He submitted that his client is agreeable to make the valuation of his counter claim in respect of property No.F-54, Bani Park, Jaipur as Rs.50 lac and to pay the Court fees thereupon in terms of Section 24(b) of the Act of 1961. It is needless to clarify that in Section 24(b) of the Act of 1961, Court fees is required to be computed on one-half of the market value of the property. Since the order/ directions to pay Court fees in terms of Section 24(b) of the Act of 1961 as issued by the trial Court vide order dated 7.3.2022 has attained finality, therefore, counsel for appellant submit that once his client is agreeable to make the valuation of suit property as per valuation made by plaintiff and to pay the requisite Court fees, the impugned order dated 9.5.2022 be quashed and appellantdefendant No.7 be allowed to make valuation of his counter claim and to pay Court fees by giving some sufficient time.

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(6 of 11)

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[CFA-640/2022]

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Counsel appearing for respondent No.1-plaintiff submitted that the suit was instituted way back on 7.8.2010 whereas counter claim has been filed on 16.2.2022 and during this span of 12 years the valuation of properties have been increased immensely, therefore, at least for the purpose of assessing the market value of the suit property, rates determined by the District Level Committee (DLC) be applied for the purpose of payment of Court fees in terms of Section 24(b) of the Act of 1961, and if the plaintiff pays Court fees as per valuation made in the order dated 9.5.2022, then some time may be granted.

¶42

Having heard counsel for both parties on the issue of valuation of counter claim and payment of Court fee in respect of suit property, this Court finds that the trial Court has already framed issue No.12 specifically which reads as under:

¶43

“आया प्रतरतिवादादी स ० 7 का काउ टर क्लेम पयपर्यापरति त नाय्यायशन्यायशुल्क पर नक पर नह् क पर न ह न्ले स्ले कातबिल्ले खाररज क पर न ह ?”

¶44

It is worthy to take note that this additional issue No.12 was framed by the trial Court on 27.6.2022 it means after rejection of the counter claim of defendant No.7 vide order dated 9.5.2022. 14. It is open for the parties to assess the market value of suit properties for the purpose of payment of Court fees either on the plaint or counter claim as the case may be. However, the assessment of valuation of market value made by parties remains subject to determination by the Court and same can be ordered to be corrected. If the valuation assessed by the party is prima facie does not inspire confidence and is found to be undervalued, the Court then and there may issue directions to the concerned party to correct the valuation and to pay the required Court fees

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(7 of 11)

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[CFA-640/2022]

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accordingly. Final assessment of market value of the property in question can be made after recording evidence of both parties. 15. In case at hand, this Court finds that when the trial Court has already framed issue No.12 as mentioned hereinabove, appellant-defendant may be given an opportunity to make valuation of his counter claim and to pay the Court fees as proposed by him before this Court. This may not be taken as an acceptance of the counter claim of defendant No.7, which has otherwise been noticed to be filed beyond the scope of the order dated 2.12.2021 passed in the writ petition while allowing his impleadment. It is choice of appellant-defendant No.7 to pay Court fees on his own peril, but payment of Court fees does not deprive the Court to consider the issue that whether counter claim is within the scope or not? However, this is to be decided by the trial Court, in case appellant chooses to pay the Court fee on his counter claim.

¶48

It is undisputed that the respondent No.1-plaintiff has assessed the valuation of suit property in his plaint and if defendant No.7 also intends to make the valuation of the suit property in the same tune, same may not be treated as improper, unreasonable or undervaluation, at least prima facie. The objection with regard to the proper assessment of the market value either according to the DLC rate as proposed by plaintiff or on the basis of other material, if produced by parties during course of trial, same would be finally assessed by the trial Court while deciding the issue No.12.

¶49

Thus, this Court is of the opinion that in the interest of justice, if appellant wants to make assessment of valuation of counter claim and pay Court fees as proposed, at least one

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(8 of 11)

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[CFA-640/2022]

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opportunity be given to appellant-defendant No.7 to make valuation of his counter claim and to pay Court fees, in respect of property bearing plot No.F-54, Bani Park, Jaipur in terms of Section 24(b) of the Act of 1961, subject to his risk and peril.

¶53

If appellant-defendant No.7, makes the valuation of his counter claim and pay the requisite Court fees in terms of Section 24(b) within a period of three weeks from the date of receipt of copy of this order before the trial Court, it is directed that the trial Court shall permit the appellant-defendant No.7 to do so and in compliance thereof, the impugned order dated 9.5.2022, rejecting the counter claim of defendant No.7 seeking declaration of ownership of the property bearing plot No.F-54, Bani Park, Jaipur shall be treated as set aside. In case of non-compliance, the order dated 9.5.2022 shall remain operative.

¶54

Before parting with the order, this Court has noticed that the Coordinate Bench of this Court while deciding the S.B. Civil Writ Petition No.827/2019 which was filed by appellant-defendant No.7 himself seeking his impleadment as party to the present suit, directed the trial Court to decide the suit preferably within a period of six months.

¶55

It appears from order-sheets of the trial Court that appellant-defendant No.7 has been added as party to the suit and thereafter, vide order dated 11.1.2022, the defendant No.7 was allowed to submit his written statement. As has been noticed hereinabove that defendant No.7, who was allowed to be added as party on the ground of purchasing the share of defendant No.6 through registered sale deed, in his written statement has expanded the scope of his defense and submitted his written statement claiming rights beyond the share of defendant No.6.

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(9 of 11)

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[CFA-640/2022]

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Defendant No.7, made the counter claim, claiming ownership over the entire suit property bearing plot No.F-54, Bani Park, Jaipur. Defendant No.7 is none else but the son of defendant No.1 and in the present suit for partition, he has neither necessary nor proper party, however, only for the reason that he purchased same undivided share of defendant No.6 through registered sale deed during course of trial of suit, the Coordinate Bench of this Court allowed his impleadment vide order dated 2.12.2021, so he may not travel beyond the scope of allowing his impleadment. Nevertheless, the order-sheet of the trial Court further reveals that after filing the written statement along with counter claim, defendant No.7 moved application after application to protract the progress of trial.

¶59

Application under Order 26 Rule 9 and 10 CPC was filed on 16.2.2022, thereafter, application under Order 7 Rule 11 CPC was filed on 21.2.2022. Both applications were dismissed by the trial Court. Thereafter, defendant No.7 was allowed to make valuation of his counter claim vide order dated 7.3.2022 and on failing to make non-compliance his counter claim was rejected on 9.5.2022. Defendant No.7 moved application to frame additional issue and on his objection, issue No.12 was framed vide order dated 27.6.2022. Again defendant No.7 moved application under Order 14 Rule 5 CPC which was found meritless and dismissed vide order dated 8.7.2022. Since the Coordinate Bench of this Court vide order dated 2.12.2021 has directed the trial Court to decide the suit preferably within a period of six months, therefore, the trial Court noted such directions in each and every order-sheet. It appears that defendant No.7, instead of extending his cooperation to decide the suit as per directions of this Court which was issued

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(10 of 11)

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[CFA-640/2022]

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in his writ petition, thereafter, adopted derelictory tactics, he filed application under Section 45 of the Evidence Act which was dismissed vide order dated 2.8.2022. Defendant No.7 sought time for cross-examination for plaintiff’s witness and on several date the cross-examination was deferred, on his behest. Thereafter, defendant No.7 filed application under Order 11 Rule 12 and 14 CPC which too was dismissed vide order dated 18.8.2022. Application under Order 8 Rule 1(3) CPC filed by defendant No.7 too was dismissed. Again defendant No.7 filed application under Order 6 Rule 17 CPC which was dismissed vide order dated 23.8.2022 with observation that application has been filed with intention to cause delay of trial of suit and a cost of Rs.2000/- was imposed. The subsequent order-sheets of trial Court go to show that conduct of defendant No.7 is to somehow defer or delay the trial for one or another reason. His application under Order 11 Rule 12 and 14 CPC too was dismissed on 27.9.2022.

¶63

Now it has transpired that plaintiff’s evidence has concluded in the present suit and two defendants Dw.1 and Dw.2 have submitted their affidavit in evidence in addition on which the cross-examination is done by defendant No.7. It is undisputed fact that the present suit for partition is being contested mainly by defendants No.1 and 7 only who are father and son. 23. Considering directions issued by Coordinate Bench of this court vide order dated 2.12.2021 and the manner in which proceedings of present suit have been commenced before the trial Court as also taking note of the derelictory conduct of defendant No.7, this Court in such peculiar circumstances is prescribing the following schedule to conclude the trial of present suit:

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(11 of 11)

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[CFA-640/2022]

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(a) From the date of receipt of copy of this order on record, the evidence of defendants would be concluded within a period of four months positively and thereafter within one month plaintiff would conclude his evidence in rebuttal, if any and the suit would be decided finally by end of May, 2023. Parties are expected to cooperate with the trial Court.

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(b) In case any of the party moves unwarranted applications just to protract/ prolong the trial and the trial Court may exercise its powers to impose exemplary cost as a measure of deterring to stop the parties from filing applications in abuse of process of law.

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(c) The adherence of the schedule as indicated hereinabove would be the responsibility of the trial Court. The earlier direction to dispose of the present suit within a period of six months stands modified accordingly.

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In view of above, the first appeal stands disposed of. No costs.

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Record of the trial Court be sent back forthwith.

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(SUDESH BANSAL),J

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NITIN /69

Tejendra Singh Bindra Son of Shri Teerath Singh, v. Narendra Singh Son of Late Shri Harman Singh

Case brief

What is this about?

What did the court decide?

Tejendra Singh Bindra Son of Shri Teerath Singh, v. Narendra Singh Son of Late Shri Harman Singh

Case brief

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What did the court decide?

What the court decided

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