Jamna Devi (Smt.) vs Rajendra Prasad Ji

U.C. Maheshwari, J.

Looking to the nature of question involved in this petition, instead to hear on the question of admission, with the consent of the parties, the same is heard for final disposal.

Heard.

The petitioner/plaintiff has filed this petition for quashment of the order dated 15.9.09 Annex. P/5 passed by the IV ADJ (FTC) Khandwa in COS No. 2-A/09 whereby allowing the application of the respondent filed under Order 7 rule 10 r/w 11 of the CPC in part, the petitioner has been directed to pay the requisite court fees in accordance with the prayer made in the plaint. In addition to it, the petitioner was also directed to amend the pleadings for consequential relief of possession because even on decreeing the suit the decree could not be executed for obtaining the possession of the property by the petitioner. Petitioner''s counsel after taking me through the averments of the petition as well as the papers placed on the record along with the impugned order said that in view of the settled proposition of the law, the parties like the petitioner/plaintiff has a right to get the decree of declaration only with respect of her share in the disputed property along with the prayer of perpetual injunction restraining the respondent/defendant to interfere in her right and share in the disputed property and, in such premises, she could not be insisted to amend the plaint for the prayer of separate possession of the property if she wants to keep the property in the joint ownership to maintain the unity of the family and, in such premises, the direction of the trial court to amend the plaint for the purpose of separate possession is not sustainable under the law. In continuation, he said that although in the plaint three different declarations with respect of the disputed property has been made by the petitioner i.e. (a) declaration regarding charge over the disputed house of her maintenance;(b) declaration of her share in the house/plot and (c) declaration to declare the alleged will as ab initio void. And as a consequence of such relief, the prayer for perpetual injunction has been made. So, in such premises, the valuation of single declaration and the court fees paid accordingly, is sufficient. It does not require any more valuation or the court fees and prayed for setting aside the impugned order and quashment of the aforesaid application of the respondent by allowing this petition.

The aforesaid prayer is opposed by the respondent''s counsel Shri Vivek Rusia contending that the impugned order being based on the proviso of section 34 of the Specific Relief Act and also taking into consideration that three different reliefs of declaration have been made by the petitioner, is in conformity with law. It does not require any interference at this stage. He prayed that in view of the proviso of the aforesaid section 34, the suit of the petitioner could not be decreed because the available consequential relief has not been prayed in the plaint and prayed for dismissal of this petition. He also placed his reliance on a decision of the Apex Court in the matter of S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar,

Having heard the counsel keeping in view their arguments, I have carefully perused the papers placed on the record along with the impugned order. It is apparent from the prayer clause of the plaint Annex. P/1 that the impugned suit has been filed by the petitioner with the prayer of three declarations; (a) is to declare the charge of her maintenance over the disputed property; (b) declaring her share in such property and (c) declaring the Will dated 5.7.96, as alleged, executed by Late Ram Prasad projected and filed by respondent to be ab initio void and as a consequence the prayer for perpetual injunction is also prayed. It is apparent fact from the plaint that the suit has been valued only for the relief of one declaration and court fees was also paid accordingly. True it is that the prayer of perpetual injunction, the valuation is separately made and the court fees was paid accordingly.

In the available scenario when herself, according to her plaint, has filed the suit for giving three different declaration then even in the absence of any objection of the other side, in view of the law laid down by the Apex court in the aforesaid cited case, the petitioner is bound to pay the court fees separately in the suit on every declaration and undisputedly, the petitioner neither valued nor paid the court fees on all the aforesaid prayer of three declarations. So, in such premises, till this extent the order impugned is hereby affirmed and the petitioner is directed to value the suit of three different declaration and pay the court fees accordingly otherwise the suit cannot proceed further for adjudication. Such exercise be carried out by the petitioner within thirty days from today by filing the appropriate application in this regard before the trial court, failing which the suit shall stand dismissed automatically without further order either by this court or the trial court.

So far the valuation of the suit for the purpose of jurisdiction, which is made by the petitioner Rs. 300000/- in view of the stated price of the disputed house does not appear to be contrary to law, hence on such question, on the ground of valuation for the purpose of jurisdiction, the impugned suit could not be dismissed. The same was rightly entertained by the trial court.

So far the question raised by the respondent''s counsel that in view of the proviso of section 34 of the Specific Relief Act in the absence of the consequential relief of separate possession, the impugned suit could not be entertained and adjudicated by the trial court as such the same could neither entertained nor decreed.

In the available scenario of the matter, such argument has not appealed me because as per the settled position, the person like the petitioner could not be insisted to file the suit for separate possession if she wants to keep the disputed property in joint ownership to maintain the unity of the family and on arising the occasion, subject to decree of the impugned suit for which the same has been filed, the petitioner may file the separate suit for possession of her share after declaring her rights in the present suit. So, in such premises, it is held that even in the absence of prayer for partition and separate possession of the disputed property, the suit could be entertained and adjudicated in accordance with the procedure prescribed under the law. So, in such premises, the findings of the trial court holding that the impugned suit in the lack of consequential available relief of partition and separate possession, is not entertainable or the decree which may be passed in the suit could not be executed, is hereby set aside.

In view of the aforesaid, by allowing this petition in part, the impugned order Annex. P/5 is hereby modified till the extent as stated above along with the observation and direction made in the foregoing paras of this order. It is made clear that this order has been passed taking into consideration the averments of the plaint. Pursuant to it, it is observed that the respondent/defendant shall be at liberty to raise all the available defence and objections in his written statement and same shall be considered by the trial court in accordance with the procedure prescribed under the law without being influenced from any observation or findings given by this court in this order or by the trial court in the order impugned.

C.C. as per rules.