Mohan Lal Sah & Others vs Sherwood Diocesan College Society & Others

Lok Pal Singh, J

Since the controversy involved in these two revisions is same, therefore, for the sake of brevity, these revisions are being decided together by this

common judgment.

Civil Revision No.81 of 2015 is directed against the order dated 30.09.2014 passed by Civil Judge (Senior Division), Nainital in Civil Suit No.67 of

2008 Mohan Lal Sah & Others vs. Sherwood Diocesan College Society & Others, whereby said court has decided preliminary issue no.11 regarding

the valuation of suit against the revisionists/plaintiffs.

Civil Revision No.80 of 2015 is directed against the order dated 16.04.2015 passed by Civil Judge (Senior Division), Nainital in Civil Suit No.67 of

2008 Mohan Lal Sah & Others vs. Sherwood Diocesan College Society & Others, whereby the amendment application paper no.94-Ka filed by the

revisionists/plaintiffs has been dismissed.

Factual matrix of the case is that the revisionists/plaintiffs filed a suit being Civil Suit No.67 of 2008 in the court of Civil Judge (Senior Division),

Nainital against the respondents/defendants for a decree of declaration, permanent and mandatory injunction and mesne profits.

Respondents/defendants contested the suit and filed the written statement. On pleadings of parties, trial court framed relevant issues in the matter.

Issue nos.11 and 12 were framed to the following effect:-

(xi) Whether the plaintiffs have properly valued the suit and the court fees paid is sufficient?

(xii) Whether the court has got jurisdiction to hear the suit?

After hearing the learned counsel for the parties and on perusal of the papers available on record, the trial court, vide order dated 30.09.2014,

recorded finding on issue no.11 that the suit has been valued tentatively on Rs. 7,35,000/- whereas the suit ought to have been valued on the basis of

market value of the suit property. The trial court, thus, directed the revisionists/plaintiffs to value the suit properly and pay the court fees accordingly.

On issue no.12, the trial court held that the court has got the jurisdiction.

Thereafter, instead of making compliance of order dated 30.09.2014 passed by the trial court, the revisionists/plaintiffs moved an amendment

application under Order 6 Rule 17 CPC stating that the suit property is situated in green belt and the State has imposed ban on registry due to which

the market value of property of that area is equivalent to nil. Only on the basis of registered sale deed, the suit has to be valued. The

revisionists/plaintiffs thus sought the following amendment in line no.7 of paragraph 14 of the plaint:-

“After the word “Rupees 7,65,000/- and upto the word “The court fees†may kindly be allowed to be deleted and in spite of that, the

following amendment may kindly be allowed to be incorporated as:-

Rupees 2,60,000/- and the subject matter of the suits are in the green belt area and construction as well as registration of sale deed are banned by the

L.D.A. Nainital and Local authority of District Nainital. Hence, the property or subject matter has no market value and at the time of the execution of

the sale deeds and there was no circle rate prevalent and were non existent, hence the suit is valued on the valuation of the instruments for relief 1,

the suit is valued is Rupees 50,000/- on which court fees paid is Rupees 4157/-, as for relief No.2 the suit is valued at Rupees 1,05,000/- on which ad-

valorem court fees of Rupees 8282.50 is paid, and as for relief No.3 suit is valued at Rupees 1,05,000/-and on which ad-valorem court fees of Rupees

8282.50 paid.â€​

The defendants filed their objections to the amendment application stating that the assertion made by the plaintiffs, that the value of the suit property

is nil, is wrong. The suit should have been valued and the court fees should be paid on the basis of market value of the suit property but the plaintiffs

instead of making compliance of the order of the trial court dated 30.09.2014, is seeking valuation of the suit on the basis of value of sale deed.

After hearing the learned counsel for the parties and on perusal of material available, the trial court, vide order dated 16.04.2015, dismissed the

amendment application. While doing so, the trial court recorded finding that by order dated 30.09.2014 the plaintiffs were directed to value the suit on

the basis of market value of the suit property and the amendment was to be incorporated in the plaint on such basis but the plaintiffs have not made

compliance of such order.

I have heard learned counsel for the parties and perused the entire record.

Indisputably, findings recorded by the trial court on issue no.11 vide order dated 30.09.2014 was not challenged by the revisionists/plaintiffs initially;

instead an amendment application was filed by them seeking amendment in the plaint to the effect that the valuation of the suit is tentatively

Rs.2,60,000/- as the suit property is situated in green belt and its market value is nil. Said amendment application was dismissed by the trial court by

the impugned order dated 16.04.2015. It is, after the dismissal of the amendment application, that the plaintiffs/revisionists has challenged the order

dated 30.09.2014 as well as order dated 16.04.2015 by filing aforesaid civil revisions.

Insofar as the valuation of suit is concerned, the revisionists/plaintiffs themselves tentatively valued the suit on the market value of the suit property

but thereafter when the trial court decided issue no.11 regarding valuation of suit and directed them to value the suit on the market value of the suit

property and pay court fees accordingly, the revisionists/plaintiffs took a U-turn and very cleverly moved an amendment application stating that the

suit property is situated in the green belt and no market value could be ascertained of the suit property and sought amendment in the plaint accordingly.

It is a settled law that a party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. Hon’ble

Apex Court in Suzuki Parasrampuria Suitings Private Limited vs. Official Liquidator of Mahendra Petrochemicals Limited (2018) 10

Supreme Court Cases 707 has held as under:-

“12 A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be

permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in

the same case was considered in Amar Singh v. Union of India, observing as follows: (SCC p. 86, para 50)

“50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to court and invokes its writ

jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.â€​

A similar view was taken in Joint Action Committee of Air Line Pilots’ Assn. of India v. DGCA5, observing: (SCC p. 443, para 12)

“12. The doctrine of election is based on the rule of estoppel â€" the principle that one cannot approbate and reprobate inheres in it.

The doctrine of estoppel by election is one of the species of estopples in pais (or equitable estoppel), which is a rule in equity… Taking

inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking

inconsistent stands and prolong proceedings unnecessarily.â€​

The revisionists/plaintiffs pleaded that the suit property lies in the green belt and the market value thereof is nothing. However, in order to

substantiate their claim, no evidence has been led by the revisionists/plaintiffs. As per Section 7 (iv-A) of the Court Fees Act, 1870 the valuation of the

suit shall be fixed on the basis of market value of the suit property. That being the position, this Court does not find any illegality or perversity in the

findings so recorded by the trial court on issue no.11 thereby directing the revisionists/plaintiffs to value the suit on the basis of market value of the suit

property and to pay the court fees accordingly.

It would be worth mentioning here that the revisionists/plaintiffs did not challenge the order dated 30.09.2014 at the first instance. They accepted

the order dated 30.09.2014 at that point of time whereby they were directed to value the suit on the market value of the suit property and to pay the

court fees accordingly, but thereafter they moved the amendment application, and after the dismissal of the amendment application, they challenged

the order dated 30.09.2014. By non-challenging the order dated 30.09.2014 at that point of time, the revisionists have waived their rights to challenge

said order. A party cannot be permitted to challenge the order at a subsequent stage on their own whims and fancies. In the facts and circumstances

of the case, Civil Revision No.81 of 2015 is liable to be dismissed accordingly.

As regards the order passed by the trial court on the amendment application, from the perusal of the amendment application, it would reveal that

the amendment application is not bonafide. The same has been moved by the revisionists/plaintiffs to overcome the order dated 30.09.2014 whereby

the trial court observed that the suit is undervalued and the court fee is insufficient. Once the trial court had directed the revisionists/plaintiffs to pay

the court fees on the basis of market value of the suit property, the revisionists/plaintiffs ought to have complied with such order, but the

revisionists/plaintiffs instead of doing so, moved the amendment application. By way of amendment application, they sought change in the valuation of

the suit. They cannot be permitted to change their stand. After the decision dated 30.09.2014, it was not expected from the plaintiffs to reduce the

valuation of the suit instead of c#7,50,000/-they sought valuation on c#2,60,000/-. As observed in preceding paragraphs, the court fee is to be paid on

the basis of market value of the suit property only. By the impugned order dated 16.04.2015, the trial court has dismissed the amendment application

for the reason that the plaintiffs/revisionists have not complied with the order dated 30.09.2014. The order passed by the trial court dismissing the

amendment application is justified. This Court, in exercise of revisional jurisdiction under Section 115 of CPC, can only exercise its jurisdiction, if it

comes to the conclusion that the subordinate courts exercised a jurisdiction not vested in it by law; or has failed to exercise a jurisdiction so vested; or

has acted in exercise of its jurisdiction illegally or with material irregularity. In the absence of any of the three contingencies mentioned above, the

revisional court should not interfere in the order passed by the court below. In the case at hand, orders impugned do not fall in any of the category

mentioned above and, therefore, no interference is required.

For the reasons recorded above, both the revisions stand dismissed. Impugned orders dated 30.09.2014 and 16.04.2015 are upheld.