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DELHI HIGH COURT
G. Rohini, CJ., & Rajiv Sahai Endlaw, J.
Dr. Zubair Ul Abidin & Ors. —Appellants
versus
Sameena Abidin @ Sameena Khan —Respondent
FAO(OS) No. 427 of 2013 & C.M. No. 14794 of 2013 (stay)
Decided on 14.7.2014
For the Appellants:Mr. M.A. Niyazi with Ms. Anamika Niyazi, Mr. Manish Kumar, Advocates
For the Respondent:Mr. M. Tariam Siddiqui with Mr. Aman Usman, Advocates.
IMPORTANT POINT
Question of payment of court fees cannot be deferred to stage of final decision.
Headnote:(i) Civil Procedure Code, 1908—Order 7 Rule 11—Court Fees Act, 1870—Section 4(i)—Rejection of plaint—Damage suit—Appellants/defendants sought rejection of plaint on ground of suit insofar as for relief of damages having been not valued at all purposes of court fees and appropriate court fees having not been paid thereon but Single Judge refused to decide the same—Question of payment of court fees cannot be deferred to stage of final decision unless entails any factual adjudication in trial—Relief which is not properly valued for purposes of court fees be not put to trial and should be rejected at threshold only—Right of defendant to have said relief rejected cannot be taken away by deferring a decision thereon to stage of final adjudication. (Paras 10, 11 and 12)
(B) Civil Procedure Code, 1908—Order 7 Rule 11—Rejection of plaint—Damage suit—Claim for damages is not such qua which enquiry is to be held nor are damages claimed such as to which accounts are to be taken under orders of Court—It is for respondent/plaintiff to quantify damages claimed and prove entitlement thereto—Neither has respondent/plaintiff quantified damages/compensation claimed from appellants/defendants nor valued suit for purposes of relief of damages/compensation—Respondent/plaintiff given fifteen days’ time to amend plaint and to pay appropriate court fees thereon—If same is not done, relief claimed for recovery of damages/compensation and issue framed thereon shall stand deleted. (Paras 14, 15 and 18
Result: Appeal allowed.
Rajiv Sahai Endlaw, J.—This intra court appeal impugns the order dated 17th July, 2013 of the learned Single Judge of this Court exercising ordinary original civil jurisdiction in CS(OS) No.918/2012 filed by the respondent/plaintiff, of dismissal of the application filed by the appellants/defendants under Order VII Rule 11 of the Code of Civil Procedure (CPC), 1908. Notice of the appeal was issued. We have heard the counsel for the parties.
2. The respondent/plaintiff filed the suit from which this appeal arises for the reliefs of (i) declaration that the Talaqnama dated 15th February, 2012 is null and void and non-est in the eyes of law; (ii) permanent injunction restraining the appellants/defendants from selling, alienating and/or creating third party rights in the matrimonial house i.e. Flat No.705, 7th Floor, Saba Apartment D-3, Sector 44, Noida, U.P. and from dispossessing the respondent/plaintiff therefrom; (iii) permanent injunction restraining the appellants/defendants from misusing the writings, photographs and videos of the respondent/plaintiff in their possession; and, (iv) for damages/compensation for ruining the life of the respondent/plaintiff.
3. The appellants/defendants applied under Order VII Rule 11 of the CPC for rejection of the plaint contending that though the respondent/plaintiff, in the body of the plaint, had sought the relief of recovery of damages to the tune of Rs.5 crores but in the prayer paragraph had not mentioned the amount of the damages claimed, to overcome the objection of the court fees; that the respondent/plaintiff having not paid the ad valorem court fees on the damages claimed of Rs.5 crores, the plaint was liable to be returned/rejected.
4. The learned Single Judge has dismissed the said application of the appellants/defendants under Order VII Rule 11 CPC, observing/holding:
(i) that the respondent/plaintiff having chosen not to claim damages of Rs.5 crores in the relief paragraph, may not ultimately be able to claim damages; reliance was placed on Chief Inspector of Stamps Vs. Indu Prabha Vachaspati (1998) 9 SCC 157 laying down that valuation for the purposes of court fees depends upon the prayer in the plaint;
(ii) that the main relief sought by the respondent/plaintiff was of declaration qua the Talaqnama - it was not the case of the appellants/defendants that the said relief was barred by law and thus the suit qua the said relief had to continue;
(iii) that a part of the plaint could not be rejected; reliance in this regard was placed on Roop Lal Sathi Vs. Nachhattar Singh, AIR 1982 SC 1559; a plaint could be rejected as a whole and not in part.
5. An order of dismissal of an application under Order VII Rule 11 of the CPC is not appealable under Order XLIII of the CPC. As far as the maintainability of appeal thereagainst under Section 10 of the Delhi High Court Act, 1966, which permits an appeal against a ‘judgment’ is concerned, the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania, 2009 (156) DLT 685 held that where the Trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g. bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds; it was thus held that such an order even though it keeps the suit alive decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a ‘judgment’ so as to be appealable to a larger Bench. To the same effect is the judgment of the Division Bench of this Court in Jyotika Kuma
