Prabhash Verma @ Kuku vs Anil Bansal and Another

V.K. Shali, J.

IA No. 8053/2010

This order shall dispose of application bearing No. 8053/2010 under Order 47 Rule 1 read with Section 151 CPC for review of orders dated 25.05.2010.

Briefly stated the facts of the case that the plaintiff has filed the present suit for declaration, possession, mesne profits, damages and permanent injunction with regard to the suit property bearing No. 3, Park Avenue, Maharani Bagh, New Delhi. It has been alleged in the plaint that the plaintiff was having business transaction with the defendants and that on account of some reasons, the plaintiff went into financial difficulties because of which he had to borrow the money from the defendant. The defendant is alleged to have got various documents like GPA, WILL and agreement to sell executed in his favour in respect of the first and second floors of the suit property from the plaintiff reflecting the sale value at Rs. 40,00,000/-. All the documents were got duly registered in the Sub Registrar Office. The plaintiff has in the prayer clause prayed for declaration of all these documents like GPA, WILL and agreement to sell etc. to be declared as null and void.

The plaintiff has also prayed for a declaration that he be declared as the sole owner/lessee in respect of property bearing No. 3, Park Avenue, Maharani Bagh, New Delhi apart from claiming mesne profits, damages @Rs. 3,00,000/- per month for depriving him of the benefit of the first floor of the suit premises.

The defendants has filed its written statement and contested the claim of the plaintiff. It has taken the plea that the plaintiff has sold the suit property in favour of the defendant and handed over the possession to him of the entire first floor consisting of three bed rooms with a attached toilets, one drawing cum dining room, one dressing room, one kitchen, entrance lobby, family lounge, one pooja room, front and rear balconies, two servant quarters with common W.C. on the top terrace, 50% share in driveway on ground floor with common right of parking therein and also entire terrace over and above the entire first floor, with 50% undivided, indivisible and impartible sub-lease ownership right in the said plot of land measuring 500 sq. yards.

After completion of the pleadings no admission/denial could be conducted as the original documents were not filed.

On 25.05.2010, the matter was listed before this Court for framing of issues, however, on perusal of the prayer clause it was noticed that as the plaintiff was claiming physical possession in respect of the first and second floors of the suit property and in para 29 of the plaint neither any valuation for the purpose of possession has been given nor any court fees has been paid, accordingly, the plaintiff was directed to pay deficient court fees and rectify the deficiency. This order was passed in the presence of the counsel for the plaintiff in view of Order VII Rule 11 Sub-clauses b and c of the CPC. As a matter of fact, the plaintiff was given some time to pay the deficient court fees at the request of the learned Counsel for the plaintiff and the matter was adjourned to 27.07.2010. Instead of paying the deficient court fees the plaintiff has filed an application on 02.06.2010 for review of the order dated 25.05.2010. Alternatively, it has been prayed that the order dated 25.05.2010 be recalled, modified or varied and/or apart from other proposed issues, an issue regarding the valuation of the suit be framed and the case may be put to trial. It is stated that this course be followed because the possession which is being claimed by the plaintiff is only a consequential relief, and therefore, he is not required to pay the court fees.

I have heard the learned Counsel for the plaintiff on the application and perused the record.

At the outset, this must be pointed out that the application of the plaintiff deserves to be summarily rejected because by virtue of the present application the plaintiff is seeking review of orders dated 25.05.2010 and yet in the application he has not mentioned even a single fact which would show that there is any error apparent on the face of record which would warrant the review of the orders dated 25.05.2010. There is no dispute about the fact that the review of an order in terms of Order 47 Rule 1 CPC would lie only if there is an error apparent on the face of the record or some new fact or document has been discovered by a party which was not in the knowledge or possession of the said party earlier at the time when the order was passed. None of these two contingencies have been averred in the application. On the contrary, the ground for recalling modifying or varying the order is that the relief of possession which is claimed by the plaintiff is a consequential relief to the declaration which is sought by the plaintiff, and therefore, in terms of Section 7(iv)(c) Court Fees Act, he is not required to pay the court fees with regard to the suit for possession. It is stated that the suit has been valued at Rs. 40,00,000/- which is the sale transaction reflected in the agreement to sell of which a court fees of Rs. 40,000/- has already been paid.

There is no dispute about the fact that the plaintiff is claiming the relief of declaration to the effect that the GPA, WILL and agreement to sell in respect of the suit property dated 28.04.2005 be declared null and void. The plaintiff is also seeking declaration to the effect that he is the owner of the entire suit property bearing No. 3, Park Avenue, Maharani Bagh, New Delhi. The plaintiff has also claimed that the relief of possession in respect of the first floor and the second floor of the suit property.

Seen in the light of of these reliefs, the plaintiff has not correctly valued his suit for each of the relief claimed by him. The valuation clause of the plaint reads as under:

The value of the suit is fixed at Rs. 40,00,000/- for the purposes of jurisdiction and declaring the GPAs dated 28.04.2005 registered as No. 6301 and 6302 on book No. 4 volume No. 2505 on page No. 32 to 38 and 39 to 45 and WILL the registered as No. 5941 in book No. 3 volume No. 1372 on page No. 69-70 dated 28.04.2005 along with the agreement to sell valued at Rs. 40,00,000/- dated 28.04.2005 registered having registration No. 6359 in book No. 1 volume No. 4938 on pages No. 144-164 in the office of Sub Registrar, Delhi to be null and void/redundant and for possession of the first floor of the suit premises and requisite court fee stands paid. The relief of declaration of title of the plaintiff qua his own property is valued at Rs. 200/- and requisite court fee stands paid thereon. The relief of the injunction is valued at Rs. 130/- and requisite court fee stands paid on the same. The plaintiff undertakes to make good any deficient court fee on any account as and when directed upon or found by this Hon''ble Court ad deficient.

A perusal of the aforesaid para would clearly shows that the suit has been valued only for the purpose of declaration and not for any other purposes while as individual valuation has to be reflected in the para with regard to the payment of court fees and then appropriate court fees has to be paid. In the instant case, the declaration which is being sought by the plaintiff is the cancellation of documents and the same being declared as null and void and obviously as the sale consideration which has changed the hands is Rs. 40,00,000/-, therefore, it has rightly been valued at Rs. 40,00,000/- and appropriate court fees has been paid. Since the plaintiff has claimed second declaration with regard to his being declared as the owner of the suit property also the plaintiff in terms of the Section 7(C) has to value the said declaration and pay an appropriate court fees on the same. Further, the plaintiff has not valued the possession at all, much less has he paid the court fees. The relief of plea of the plaintiff that the possession of the first floor and the second floor of the suit property in respect of which relief is being claimed is a consequential relief cannot be accepted. Consequential relief is the relief which automatically flows from the principle relief which a party is claiming but in the instant case the recovery of possession from the defendants by the plaintiff cannot be said to be a consequential relief. It is not to follow as a matter of consequence to the plaintiff assuming for the sake of argument the plaintiff would not claim this relief of possession he has to file a separate suit for possession and value the relief and pay the court fees. The relief of possession is an independent relief which is claimed by the plaintiff, and therefore, the plaintiff had to give valuation to the said relief of possession which may be based on the circle rates of the properties fixed in that locality. Further Section 7(v) also lays down that in a suit for recovery of possession of land, house and garden, the Court fees will be payable on the value of the subject matter which shall be deemed as given in the Section thereunder. The said Section gives various options as to what would be the value in different situations like in cases specific performance, it would be the sale consideration and in a case between the landlord and tenant, it would be according to Section 7(xi) of the Court Fees Act, while as in the present case, suit for possession has not been valued at all. This is not permissible.

It is in this context that the Court while framing the issues under Order VII Rule 11 sub Clauses (b) and (c) of the CPC has to give an opportunity to the plaintiff to remove the deficiency in payment of court fees to which the learned Counsel for the plaintiff had also not protested at that time and as a matter of fact he had sought time to pay the deficient court fees and now to turn around to say that no court fees on possession is payable is not in consonance with law.

For the reasons mentioned above, I feel that as there is no error apparent on the face of record in the order dated 25.05.2010 which warrants its review. The deficiency of court fees has to be rectified before the plaintiff can be permitted to prosecute his remedy. So far as the prayer of the plaintiff that an issue may be framed and he may be permitted to adduce the evidence cannot be acceded to as this is an issue which needs to be decided on the threshold in terms of the Order VII Rule 11 CPC, therefore, alternative prayer of the plaintiff is also rejected. Accordingly, the application of the plaintiff is dismissed. The plaintiff is given one last opportunity to pay the deficient court fee within a period of four weeks from today.

Post the matter before the learned Joint Registrar on 01.11.2010 for further proceedings.