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1991 Supreme(J&K) 89
IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
V.K. Gupta, J.
Gurmeet Singh - Appellant
Versus
Gurbachan Kaur - Respondent
Civil Revision No. 108/1991
Decided On : 12 December, 1991
Advocate For Appellant: K.S. Johal
Advocate For Respondent: S.S. Lehar
Advocate For Respondent: Kuldeep Raj Gupta
The valuation of a suit for prior purchase under the Right of Prior Purchase Act, 1936, is governed by the Suits Valuation Act and the payment of court fees is governed by Section 7(vi) read with Section 7(v)(e) of the Court Fees Act. The sale price mentioned in the sale deed can be considered as the market value of the property for the purpose of court fees, provided that the plaintiff does not challenge the sale price as having been fixed or paid in bad faith.
Headnote:
RIGHT OF PRIOR PURCHASE ACT - SECTION 24 - SUIT VALUATION - COURT FEES - MARKET VALUE - INTERPRETATION OF SECTION 24 - COURT FEES ACT, SECTION 7(VI) READ WITH SECTION 7(V)(E) - SUITS VALUATION ACT - INTERPRETATION - MARKET VALUE AS ON DATE OF SUIT FILING - SALE PRICE AS INDICATOR OF MARKET VALUE - LIMITATION PERIOD FOR SUIT FILING - REASONABLE PERIOD FOR SALE PRICE TO REMAIN INDICATIVE OF MARKET VALUE - CHALLENGING SALE PRICE IN SALE DEED - PLAINTIFF'S OBLIGATION TO FIX MARKET VALUE - COURT'S DISCRETION TO INTERFERE WITH TRIAL COURT'S FINDING - REVISION PETITION - MAINTAINABILITY - SECTION 115 C.P.C. - PROVISO (B) TO SUB-SECTION (1) - FAILURE OF JUSTICE - AMENDMENT IN 1983 - APPLICABILITY.
Fact of the Case:
Plaintiff filed a suit under the Right of Prior Purchase Act, 1936, claiming the right of prior purchase of a single-storied house. The defendant, the vendee of the property, contested this right. The trial court framed two preliminary issues: (1) whether the suit was properly framed and (2) whether the suit was properly valued for the purpose of court fees. The trial court decided both issues in favor of the plaintiff.
Finding of the Court:
The High Court held that the trial court erred in interpreting Section 24 of the Act as the basis for valuing the suit for court fees. Section 24 deals with the determination of the price of the property sold, not the valuation of the suit or the payment of court fees. The valuation of the suit is governed by the Suits Valuation Act and the payment of court fees is governed by Section 7(vi) read with Section 7(v)(e) of the Court Fees Act. The court further held that the plaintiff was justified in valuing the suit based on the price mentioned in the sale deed, as the sale price is the best indicator of the market value of the property within a reasonable time after the execution of the sale deed. Since the plaintiff did not challenge the price mentioned in the sale deed, the trial court's finding on issue No. 2 was correct, although the reasoning was flawed.
Issues: 1. Whether Section 24 of the Right of Prior Purchase Act, 1936, governs the valuation of the suit for court fees. 2. Whether the valuation of the suit should be based on the market value of the property as on the date of the institution of the suit. 3. Whether the sale price mentioned in the sale deed can be considered as the market value of the property for the purpose of court fees. 4. Whether the plaintiff is obligated to fix the market value of the property if the sale price in the sale deed is challenged. 5. Whether the High Court can interfere with the trial court's finding on the valuation of the suit.
Ratio Decidendi: 1. Section 24 of the Right of Prior Purchase Act, 1936, does not govern the valuation of the suit for court fees. It deals with the determination of the price of the property sold, not the valuation of the suit or the payment of court fees. 2. The valuation of the suit is governed by the Suits Valuation Act and the payment of court fees is governed by Section 7(vi) read with Section 7(v)(e) of the Court Fees Act. 3. The sale price mentioned in the sale deed can be considered as the market value of the property for the purpose of court fees, provided that the plaintiff does not challenge the sale price as having been fixed or paid in bad faith. 4. If the plaintiff challenges the sale price in the sale deed, the plaintiff is obligated to fix the market value of the property as of the date of the institution of the suit. 5. The High Court can interfere with the trial court's finding on the valuation of the suit if the finding is based on an erroneous interpretation of the law or if the finding is perverse.
Final Decision: The High Court dismissed the revision petition, holding that the trial court's finding on issue No. 2 was correct, although the reasoning was flawed. The court held that the plaintiff was justified in valuing the suit based on the price mentioned in the sale deed, as the sale price is the best indicator of the market value of the property within a reasonable time after the execution of the sale deed.
2. The brief facts leading to filling of this petition are that respondent No 2 filed a suit against the petitioner and respondent No. 2 under the Right of prior purchase Act 1993 (1936 A D.) (hereinafter called as the Act), in respect of a single storied house comprising of two rooms, store one stair case and an open compound situated at Mohall Pratap Garh Jammu. Whereas the plaintiff/respondent No. 2 claimed in the suit the right of prior purchase the petitioner who was the vendee of the suit property along with respondent 1, who was its vender, contested this right The trial court framed as many as five issues for trial vide its order dated 7.5.1982 but out of these, first two issues were treated as preliminary issues and the parties were directed to lead evidence thereon. Vide the impugned order, the trial court has decided these two issues in favour of respondent No. 2 and against the petitioner and respondent No. 1. These two issues are reproduced as under:-
"1. Has the suit not been properly framed, the relief of declaration of ownership of the suit house soughtto be preempted could not have been claimed in it and separate court fee, in case such a relief could be claimed ought to have been paid on it? OPP.
2 Is the suit not properly valued for purpose of court fee because the market value of the suit house on the date of the suit was not less than Rs. 50,000/. OPP." The finding of the trial court on issue No. 1 has not been contested in this petition The finding on issue No 2, however, was contested by the petitioner in this petition on the ground that the trial court has committed an irregularity and a patent error in law by holding that the fixation of the value of the suit for purposes of court fee was provided and therefore fixed in terms of the provisions of section 24 of the Act and that, in fact, the suits valued ought to have been fixed in terms of the provisions (of the Suits valuation Act and Section 7 (vi) read with Section 7 (v) (e) of the Court Fees Act. It has further urged on behalf of the petitioner that by wrongly fixing the value of the suit on the basis or the value reflected in the sale deed, the suit was under-valued and that its value ought to have been fixed on the basis of the market value as prevalent on the date of the filing of the suit.
3. Whereas Mr. Lehar learned counsel appearing for the respondent No. 1, has not advanced any arguments, in support or against the impugned order Mr. R. Gupta learned counsel appearing for the respondent No. 2, has strongly supported the impugned order. By way of preliminary objections, however he has urged that the revision petition was not maintainable in view of the clear provisions of Section 115 of the Civil Procedure Code on the question decided in the impugned order, viz. the payment of the court fees by the plaintiff in a pending suit. In support of his aforesaid contention he has relied upon a judgment of the Supreme court in the case of Sri Rathna Verma Raja Vs Smt. Vimla, reported in AIR 1961 SC 1299
4. I have heard learned counsel for the parties and perused the record
5. In so for as the question of maintainability of this petition is concerned, Section 115 C.P. as amended does provide that the High Court may vary or reverse any order passed by a court subordinate to it for which no appeal lies to the High Court if the order, if allowed to stand, may occasion a failure of justice. The prevision (b) to Sub-section (1) in section 115 of the Civil Procedure Code clearly contains this policy of law. Because of the view that I am going to take on the merits of the impugned order, I hold that the impugned order would have occasioned a failure of justice, if it were allowed to stand. I am, therefore, inclined to entertain this petitio
