Vishnu Dayal vs Mst. Budnwara and Others

T.P. Sharma, J.—This civil revision is directed against the order dated 16-3-2002 passed by the 1st Additional District Judge, Raigarh in Civil Appeal No. 40A/99, whereby learned Additional District Judge set aside the judgment & decree passed by the Civil Judge Class-II, Gharghoda in Civil Suit No. 4A/90 vide judgment & decree dated 14-4-97. The order is challenged on the ground that the appellate Court has not considered the grounds raised by the applicant/defendant of the suit and has remanded the case only on the ground of valuation of the suit and thereby committed illegality.

Brief facts of the case are that the present non-applicants have filed a suit before the Civil Judge Class-II, Gharghoda against the applicant herein and prayed for declaration of safe deed void, for possession of the suit house and permanent injunction. Counter claim was also filed by the present applicant for possession of the land. After affording opportunity of hearing to the parties, the suit was dismissed and the counter claim was decreed. Appeal was preferred by the present non-applicants and interim direction was given by the appellate Court relating to valuation of suit, but the same was decided negative by the trial court vide order dated 18-2-99. After hearing the appeal, the order impugned was passed and the case was remitted back to the trial Court for providing opportunity of appropriate amendment relating to valuation of suit house and payment of Court fees, same is challenged by the present applicant/defendant of the suit in the present civil revision.

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

Learned counsel for the applicant submits that the appellate Court was under obligation to consider all the grounds raised by the applicant, but the appellate Court has not considered the grounds raised by the applicant and simply remitted back the case to the trial Court for providing opportunity of amending the plaint relating to valuation of suit and for payment of ad valorem Court fees on the basis of market value.

Judgment of the Court below and interim order dated 18-2-99 reveal that originally the suit was filed by non-applicants No. 1 to 6 for declaration of sale deed void, for possession of suit house and permanent injunction. The sale deed was executed in the year 1972, but the suit was filed in the year 1990. Disputed property is the house property and substantially the suit was for possession of the house on the basis of ownership. For deciding valuation of the suit and to decide territorial and pecuniary jurisdiction of the Court, the plaintiff is required to value its suit in the light of different relief''s and to pay proper Court fees.

Admittedly, the plaintiff has filed the suit for declaration of sale deed, possession of the suit house and for permanent injunction. According to the allegation of the plaint, sale deed dated 18-1-72 is null and void for which the plaintiff may value the suit according to his own choice and may pay fixed Court fees in accordance with sub-clause (iii) of clause 17 of Schedule II of the Court-fees Act, 1870 (for short ''the Act, 1870''), but fur possession of suit house, the plaintiff is required to value the suit and pay court fees in accordance with Section 8 of the Suits Valuation Act, 1887 (for short ''the Act, 1887''). Section 8 of the Act, 1887 reads as follows:-

Court-fee value and jurisdictional value to be the same in certain suits.-

Where in suits other than those referred to in the Court-fees Act, 1870 (7 of 1870), Section 7, paragraphs V, VI and IX, and paragraph X, clause (d), Court-fees are payable ad valorem under the Court-fees Act, 1870 (7 of 1870), the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same.

Likewise, Section 7(v) of the Act, 1870 reads as follows:-

Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:-

For possession of land, houses and gardens.--(v) In suits for the possession of land, houses and gardens--according to the value of the subject-matter; and such value shall be deemed to be-

Where the subject-matter is land, and-

(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government,

or forms part of such an estate and is recorded in the Collector''s register as separately assessed with such revenue;

and such revenue is permanently settled--ten times the revenue so payable;

(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid;

and such revenue is settled, but not permanently--

five times the revenue so payable;

(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue.

and net profits have arisen from the land during the year next before the date of presenting the plaint--

fifteen times such net profits;

but where no such net profits have arisen therefrom--the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood;

(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above-mentioned--the market-value of the land;

Section 7(v) of the Act, 1870 makes special provision for possession of land, houses and gardens. For possession of house the plaintiff is required to pay court fees on the basis of the value of subject matter. But admittedly, in the present suit the plaintiff has not valued the suit on the basis of market value and has also not paid ad valorem Court fees upon such valuation. In absence of proper valuation and payment of Court fees, it is difficult for the Court to decide whether such Court is having pecuniary and territorial jurisdiction to entertain the suit or not which is sine qua non for entertaining and trial of civil suit before deciding any other suit. The appellate Court has rightly remitted the case for proper valuation and payment of Court fees which is sine qua non for taking cognizance of the suit by the Court concerned. The appellate Court has not committed any illegality by remitting the case. I do not find any force in the civil revision, the revision is liable to be dismissed and it is hereby dismissed. No order as to costs.