The main legal point established in the judgment is that for the purpose of deciding an application under Order 7 Rule 11 C.P.C., only plaintiffs' averments are to be seen, and the proper valuation of court fees is crucial.

Judgment:

Impugning the order dated 11.10.2013 whereby the application of the petitioner/defendant preferred under Order 7 Rule 11 C.P.C. is rejected by Court below, this petition is filed under Article 227 of the Constitution.

2. The respondents/plaintiffs filed a suit for injunction and declaration (Annexure P-2). The petitioner filed application under Order 7 Rule 11 C.P.C. (Annexure P-3). The respondents filed their reply and prayed for rejection of said application. By impugned order, the Court below rejected the application (Annexure P-3).

3. Shri Raja Sharma, learned counsel for the petitioner submits that the Court below has erred in rejecting the said application. He submits that the plaintiffs have prayed for declaration of title as well as injunction and, therefore, they should have paid ad-valorem court fees. In addition, it is submitted that as per para 8 and 9 of the application (Annexure P-3), it is clear that plaintiffs have not paid the proper court fees and Court below has erred in rejecting the said application. In support of this contention, he relied on ILR (2011) MP 2141 (A.K.Ghosh Vs. Dhruv Kumar Haryani & Anr) and AIR 1988 SC 1636 (M/s Commercial Aviation & Travel Co. Vs. Vimal Pannalal). By placing reliance on Section 7 (1) (d) of the Court Fees Act, it is contended that Court below has erred in rejecting the application.

4. Prayer is opposed by Shri Santosh Agrawal by submitting that there is no reason for interference at this stage because the question of valuation is left open by the impugned order. It is made clear that after filing of written statement the Court below will decide the said aspect.

5. In have heard the learned counsel for the parties and perused the record.

6. This is trite that for the purpose of deciding an application under Order 7 Rule 11 C.P.C., only plaintiffs' averments are to be seen. Para 8 of Annexure P-3 is based on certain other averments and material.

This cannot be gone into at the stage of deciding the application under Order 7 Rule 11 C.P.C.

7. So far the judgment of Division Bench in A.K.Ghosh (supra) is concerned, a simple reading of this judgment makes it clear that in the said case the plaintiff was seeking declaration that he be declared as owner of the land. Thus, this Court observed as under:-

“Until and unless it is declared that plaintiff is owner of the land encroached by defendant, a decree for mandatory injunction cannot be granted. The relief of mandatory injunction is not an independent, but is a consequential to the relief of declaration.”

8. In para 8 this Court opined that the plaintiff himself valued the suit for Rs.39750/- but has paid fixed Court fees of Rs.500/- whereas as per Section 7 (iv)(d) of the Court Fees Act, ad-valorem Court fees is required. In the present case, the plaintiffs have not prayed for any declaration to declare them owner of the encroached portion. On the contrary, it is their stand that the said portion be permitted to be used for the purpose of thoroughfare. Thus, the said judgment is distinguishable and not applicable in the peculiar facts and circumstances of the present case. This Court in 2008 (1) M.P.L.J. 116 (Ashok Kumar Gehani and another Vs. Rahmet Agrawal and another) opined that it is well settled in law that at the time of consideration of application under Order 7 Rule 11 C.P.C., only plaintiffs' averments are required to be seen. In that case, the plaintiffs prayed for a relief of injunction not to raise construction so that his right to access may not be obstructed. He valued the suit for Rs.500/- for the purpose of injunction. This Court opined that proper valuation has been made after obtaining decree of injunction and proper court fee has been paid. In addition, this Court considered as to which relief can be called as 'consequential relief'. It is opined that the true test in determining whether a relief is consequential or not is that if such relief can be claimed independently then it cannot be said to be a 'con