Chandramohan and Others vs Prem Sarswat and Others

Pratap Krishna Lohra, J.—Order dated 19th of November 2014 passed by the Civil Judge (Jr. Div.) No. 3, Bikaner (for short, ''learned trial Court'') is under challenge in this revision petition at the behest of petitioners-defendants. By the order impugned, the learned trial Court has decided two applications by a common order, viz., application under Order 1 Rule 8 for deletion of relief laid by the respondents-plaintiffs and application under Order 7 Rule 10 and Order 7 Rule 11 read with Section 151 CPC preferred by the petitioners-defendants.

The brief facts of the case are that respondents-plaintiffs instituted a civil suit for perpetual injunction and declaration against petitioners-defendants as well as proforma defendants in representative capacity by invoking Order 1 Rule 8 CPC. In the plaint, it is inter-alia averred that the suit property measuring 12000 sq. yards is situated outside Parkota of walled city Bikaner towards western side, popularly known as Sadaniyon ki Bagechi. The property is located nearby Bhatolai Talai and famous by the name of Gokul Circle in the city of Bikaner. The Patta of the said land was issued in Samvat 1923 in the name of Sadani Maheshdas, Lichhmandas and Dasani Jeetmal Jugal Kishore for the purpose of Bagechi, temple, Kund and Tibari. The neighbourhoods of the property were also mentioned in the plaint. It is specifically mentioned in the plaint that this open land is situated in the Abadi area and its solemn object is to maintain pollution-free atmosphere for the entire locality. A temple of Lord Mahadev is also situated on the land which is for Saints, sadhus and hermits. The public at large is also offering Jalabhishek to Lord Shiva and worshipping the deity. It is further averred in the plaint that the last descendent of Sadani family Smt. Savitri Devi wd/o Late Shri Agarchand made a solemn declaration on 3rd of January 1950 that henceforth the land shall be utilized for public purpose and nobody would alienate or otherwise change the nature of the land. The respondents-plaintiffs have specifically pleaded that by afflux of time huge escalation in the land price sowed a seed of greed among some of the land Mafias and colonizers having political patronage to grab this land of prime locality. Elaborating these facts, the respondents-plaintiffs have averred in the plaint that petitioners-defendants No. 3 to 5 projected themselves as owner of the land and started taking hectic steps for constructing a housing colony or a commercial complex on the said land. It is specifically pleaded in the plaint that despite there being serious dispute about the nature of land, the petitioners-defendants are out and out to grab the land by uprooting trees and other greenery developed on the land in question. Citing the declaration of the last descendent of the Sadani family, the respondents-defendants have asserted in the plaint that the land belongs to general public and no family can stake its claim for its ownership. For substantiating all these assertions, the respondents-defendants have also averred in the plaint that Bagechi is developed by accepting donations from various donors and adequate place is earmarked for giving shelter to live stocks and for feedings birds etc. It is specifically pleaded that the sale-deed dated 6th of June 2014 registered in the name of petitioners-defendants No. 1 and 2 is a spurious document, allegedly executed by the third petitioner-defendant by projecting him as adopted son of Late Agarchand. As a matter of fact, as per the version of the respondents-plaintiffs, he had no authority to sell, mortgage or alienate the property. With these averments, the respondents-plaintiffs have prayed for the relief of perpetual injunction not to change the nature and character of the suit property and further not to raise any construction on the same. A declaration is also sought that the suit property/Bagechi may be declared as a public property with a further declaration that the land may be used for the purpose mentioned in the Patta.

Resisting the suit filed by the respondents-plaintiffs, petitioners-defendants No. 1 and 2 submitted an application under Order 7 Rule 10 and 11 read with Section 151 CPC before the learned trial Court. In the application, precisely, the petitioners have invoked clause (b) of Rule 11 Order 7 CPC by urging that the market value of the suit property is approximately Rupees three crores but the respondents-plaintiffs have not paid the requisite court-fee for the relief of perpetual injunction and declaration. For substantiating the averments in the application, the petitioners have also relied upon Section 24 of the Rajasthan Court fees and Suits Valuation Act 1961 (for short, ''Act of 1961'') which envisage that if any declaration is sought, court fee is required to be paid on the market value of the property. In that background, the petitioners-defendants have prayed for either rejection of the plaint under Rule 11 of Order 7 CPC or for return of the plaint under Rule 10 Order 7 C.P.C.

The respondents-plaintiffs also submitted an application under Order 1 Rule 8 CPC for deleting relief No. 2 mentioned in the plaint.

The learned trial Court heard arguments on both the applications and by a common order, which is order impugned in the present revision petition, permitted the respondents-plaintiffs to delete relief No. 2. While examining the application of the petitioners, learned Court below rejected the same by observing that court fees payable on the suit is governed by the provisions of Section 20(c) of the Act of 1961. For arriving at this conclusion has also taken cognizance of the fact that the respondent plaintiff has deleted relief No. 2.

Learned counsel for the petitioners, Mr. Sajjan Singh, submits that in view of subsistence of relief No. 2, which according to him has not been specifically deleted in the impugned order, rejection of application under Order 7 Rule 10 and 11 CPC has rendered the impugned order vulnerable and the same cannot be sustained. Learned counsel for the petitioners submits that looking to the nature of the suit, the suit has not been properly valued and the court fees paid is inadequate but by not examining that aspect of the matter objectively, the learned Court below has committed illegality and material irregularity in exercise of its jurisdiction. Mr. Sajjan Singh, learned counsel for the petitioners would contend that even a relief for perpetual injunction as craved in the plaint is governed by the provisions of Section 26(a) of the Act of 1961, which is an issue of great significance but has not been properly addressed by the learned Court below in the impugned order. Elaborating his submissions in this behalf, learned counsel contends that the impugned order suffers from the vice of serious jurisdictional error which warrants interference in exercise of revisional jurisdiction. In support of his contentions, learned counsel for the petitioners has placed reliance on following judgments:

� " Shailendra Bhardwaj and Others Vs. Chandra Pal and Another, (2013) 1 RCR(Civil) 325 : (2012) 11 SCALE 162 : (2013) 1 SCC 579

� Municipal Council Vs. Charandas and Others, (1980) WLN 102

� Vijay Kumar and Ors. v. Mst. Shakuntala Devi and Ors. [1984 RLR 1005]."

Per contra, learned counsels Mr. Anil Kumar Singh and Mr. Shyam Sunder Ladrecha would contend that the petitioners have not properly construed the impugned order so far as it relates to deletion of relief No. 2 of the plaint and after deletion of relief No. 2 according to learned counsel for the respondents nothing survives for adjudication in the revision petition. Learned counsel for the respondents submit that suit filed by the respondents-plaintiffs is in the representative capacity and if in that background relief No. 1 is examined, then it would ipso facto reveal that the court fees payable for said relief is to be determined in terms of Section 26(c) of the Act of 1961 and while concluding the same learned Court below has not committed any illegality or material irregularity in exercise of its jurisdiction. Lastly, learned counsel Mr. Anil Kumar Singh would contend that prayer for abandoning relief No. 2 has been examined by the learned Court below in the impugned order and the Court has permitted the respondents-plaintiffs to delete relief No. 2 in clear and unequivocal terms and even while considering application of the petitioners this aspect has impressed upon the learned Court below to decline the prayer made in the application under Order 7 Rule 10 and 11 CPC laid by the petitioners. With these arguments, learned counsel for the respondents submitted in unison that the order impugned has also not occasioned failure of justice requiring interference in the limited scope of judicial review under Section 115 CPC.

I have heard learned counsel for the parties and perused the impugned order and the record of the case.

A bare perusal of the plaint makes it amply clear that respondents-plaintiffs have laid the suit in representative capacity by invoking order 1 Rule 8 CPC. The facts averred in the plaint if construed in conjunction with the relief prayed for then it would ipso facto reveal that relief for injunction is sought by the respondents-plaintiffs not for their own good but for espousing a public cause. On the face of it, when the respondents abandoned prayer No. 2 and learned Court below has permitted to delete the said prayer clause, the objection of the petitioners-defendants with respect to valuation of the suit and court fee paid has gone superfluous. In the changed scenario, when the relief is simpliciter for perpetual injunction and the suit is laid in representative capacity, the provisions under Section 26(c) of the Act of 1961 are attracted and clause (a) of Section 26 of the Act of 1961 cannot be pressed into service. The learned Court below has also opined that in view of deletion of relief No. 2 and looking to the nature of the suit, court fees payable for relief No. 1 is governed by clause (c) of section 26 of the Act of 1961. This finding of the learned Court below is just and reasonable and cannot be categorized as a finding which suffers from the vice of illegality or material irregularity in exercise of jurisdiction. As a matter of fact, there is no jurisdictional error committed by the learned Court below in declining the prayer of the petitioners. The apprehension of the petitioners, that relief No. 2 still subsists, is based on misconstruction of the impugned order. True it is that while ordering deletion of relief No. 2, the requisite recitals in the impugned order are not clear and unequivocal and the order as such is not happily worded in this behalf but on cumulative reading of the impugned order, it is abundantly clear that the learned Court below has acceded to the prayer of the respondents-plaintiffs for abandoning relief No. 2 and has deleted relief No. 2 from the relief clause as incorporated in the plaint. In that background, I feel persuaded to hold that the order impugned has not occasioned failure of justice or miscarriage of justice warranting interference in the limited scope of judicial review. The legal precedents, on which learned counsel for the petitioners has placed reliance, are examined by me and there cannot be two opinion about the ratio decidendi of the judgments referred to by the learned counsel for the petitioners but in the backdrop of the facts and circumstances of the instant case, more particularly the nature of the suit and deletion of relief No. 2, these judgments are of no assistance to the petitioners for rendering impugned order vulnerable.

Resultantly, the revision petition lacks in merit and the same is accordingly dismissed.

Let record of the trial Court be sent forthwith.