Mahinder Kumar vs Rajni - 2022 Supreme(P&H) 1637

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 1637

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Archana Puri, J.
Mahinder Kumar – Appellant
Versus
Rajni & Ors. – Respondents
CR-2592-2022 (O&M)
Decided On : 11-07-2022

Advocates appeared:
Mr.K.B.Raheja, Advocate, for the Appellant

Headnote:
Court Fee - Partition Suit - Liability of Court Fee for Separate Possession - The court determined that the respondent/plaintiff is liable to pay ad valorem Court fee only with regard to the value of her share at the time of passing of the final decree, as she is seeking partition of the property of which she is in actual possession of part of the same.
Fact of the Case:

The petitioner/defendant filed an application for rejection of plaint, claiming that the respondent/plaintiff, who filed a suit for decree of separate possession through partition by metes and bounds, should pay ad valorem Court fee as per the market value of the property.
Finding of the Court:

The court found that the respondent/plaintiff, being in actual possession of part of the property and seeking partition of the same, is liable to pay ad valorem Court fee only with regard to the value of her share at the time of passing of the final decree.
Issues: The issue was whether the respondent/plaintiff is required to pay ad valorem Court fee for seeking separate possession through partition by metes and bounds.
Ratio Decidendi: The determination of liability of payment of Court fee is based on the averments in the plaint, and when the respondent/plaintiff is seeking partition of the property of which she is in actual possession, she is liable to pay ad valorem Court fee only with regard to the value of her share at the time of passing of the final decree.
Final Decision: The impugned order was modified to the extent that ad valorem Court fee would be payable by the respondent/plaintiff as per the value of her share to be determined at the time of passing of the final decree, and the revision petition was dismissed with the above-said modification.

JUDGMENT

Archana Puri, J. - Challenge in the present revision petition is to the order dated 12.05.2022 (Annexure P-1) passed by learned Civil Judge (Jr. Divn.) Ferozepur, whereby an application filed by the petitioner/defendant, for rejection of plaint, has been dismissed.

2. It is now submitted by learned counsel for the petitioner that respondent/plaintiff had filed a suit claiming possession and therefore, she was required to pay the ad valorem Court fee, as per the market value of the property. Learned Court below has wrongly reached the conclusion about the respondent/plaintiff, to be co-sharer and as such, deemed to be in possession of the suit property. As such, it is submitted that the application has been wrongly dismissed.

3. Copy of the plaint has been placed on record as Annexure P-2. Perusal of the same reveals that respondent/plaintiff had filed suit for decree of separate possession through partition by metes and bounds. Therein, it is also stated that the plaintiff is in actual physical possession of the portion shown in red colour, on the ground floor, in the site plan.

4. For the determination of liability of payment of Court fee, only averments in the plaint are to be looked into and the plea of defendant is not be take into consideration.

5. When the facts pleaded in the plaint are taken into consideration, it comes out that the respondent/plaintiff is seeking partition of the property, of which, she is also in actual possession of part of the same. When separate possession is claimed through partition by metes and bounds to the extent of her share, it comes out that respondent/plaintiff is liable to pay the Court fee, only with regard to value of her share, at the time of passing of final decree.

6. Consequently, the impugned order is modified to the extent that ad valorem Court fee would be payable by the respondent/plaintiff, as per the value of her share, to be determined, at the time of passing of the final decree.

7. In the aforesaid terms, the revision petition stands dismissed with the above-said modification.

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