JUDGMENT :

Tarlok Singh Chauhan J.

OMP No. 399 of 2015

Applicants have sought rejection of the plaint by moving this application under order 7 Rule 11 of CPC on the ground that the same is under valued. It is alleged that though plaintiff in paragraph 13 of the plaint has alleged the value of the suit for the purposes of court fee and jurisdiction at Rs.70,00,000/- (Rs.Seventy lacs only) and affixed a court fee of Rs.72,560/-, but this valuation is contrary to the pleadings set out in paras 6 and 10 of the plaint, wherein it is specifically averred that the real market value of the suit property is more than Rs.6,00,00,000/- (Rs.Six crores only) and, therefore, the plaintiff is bound to affix the court fee on the market value assessed by the plaintiff at Rs.6,00,00,000/- .

2. In reply to the application non applicant/ plaintiff has raised preliminary objection regarding the maintainability of the application on the ground of concealment and concoction of material facts and on merits it is averred that since price mentioned in the sale deed is of Rs.70,00,000/-, therefore, the plaintiff was only required to affix the court fee on the said amount even though the market value has been averred to be Rs.6,00,00,000/-. It is further contended that since the suit seeks setting aside of the sale deed in question, therefore, it is the valuation affixed on the instrument i.e. sale deed which would determine the valuation of the suit, which in turn would form the basis of affixing the court fees.

I have heard the learned counsel for the parties and have gone through the records of the case.

3. At the outset, I may observe that deficiency of court fee, even if proved, cannot be a ground for rejecting the plaint unless the person by whom such fee is payable in whole or part, as the case may be, is allowed an opportunity to make good the deficiency. This is so prescribed in Section 149 of Code of Civil Procedure, which reads thus:-

“149. Power to make up deficiency of court fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

4. Learned counsel for the applicants Mr. J.C. Katoch and Ms. Anjali Soni Verma, Advocates, have vehemently argued that since subject matter of the plaint is a land and building, then the court fee shall have to be affixed on the market value, comprising of land and building, which as per the plaintiff himself is worth Rs.6,00,00,000/-. In support of this contention, reliance has been placed on the judgments of this court; in Devta Satya Narain & anr Vs. Land Chand & ors 2006 (3) Shim.LC 92; Rachna Sharma Vs. Meena Kumari Sharma, 2013 (1) Him L.R. 318 and Khawaja Khallilullah Vs.Mrs. Shamem Butt & ors (CMPMO No. 20 of 2012, decided on 1.4.2013).

5. On the other hand, learned counsel for the plaintiff/non applicant has relied upon the decision of the Full Bench of learned Punjab and Haryana High Court in Niranjan Kaur Vs. Nirbigan Kaur, AIR 1981 Punjab & Haryana 368.

6. In Devta Satya Narain’s case (supra), suit was filed for declaration that that 8 heads of property categorized (A) to (H) were owned and possessed by the plaintiff, and, therefore, the Pata Dwan (perpetual lease), executed by respondent No.1 therein be declared illegal, null and void and not binding on the plaintiffs. The defendants in the suit raised preliminary objection about improper valuation of the suit which led to the framing of issue No.8, which reads thus:

“Whether the suit has not been properly valued for the purposes of Curt fee and jurisdiction? OPD”.

7. Trial court, by referring to the provisions of H.P. Court fees Act, 1968, held t