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2024 Supreme(Online)(CG) 984
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CR No. 111 of 2023
1. Smt. Manjulata Rathore W/o Ramkrishna Rathore Aged About 48 Years R/o Gurumukh Singh Nagar, Ward No. 40, New Rajendra Nagar, Tehsil And District Raipur, Chhattisgarh
2. Ku. Nistha Rathore D/o Ramkrishna Rathore, Aged About 24 Years R/o Gurumukh Singh Nagar, Ward No. 40, New Rajendra Nagar, Tehsil And District Raipur, Chhattisgarh
3. Naivedya Rathore S/o Ramkrishna Rathore, Aged About 22 Years R/o Gurumukh Singh Nagar, Ward No. 40, New Rajendra Nagar, Tehsil And District Raipur, Chhattisgarh ---- Petitioner Versus
1. Harikrishna Rathore S/o Late Kodulal Rathore, Aged About 54 Years R/o MIG 271 A, Sector-2, D.D. Nagar, Raipur, Chhattisgarh....Respondent/plaintiff
2. Ajay Kumar Rathore S/o Late Kodulal Rathore Aged About 50 Years R/o MIG 715, Sector-2, D.D. Nagar, Raipur, Chhattisgarh....Respondent/defendant No. 4
3. Smt. Urmila Dipavre W/o Shri Sundarlal Dipavre Aged About 64 Years R/o Quarter No. 26, Satyanand Vihar, Rampur, Nearby Vidyut Nagar, Tehsil And District Jabalpur, Madhya Pradesh....Respondent/defendant No. 5
4. Smt. Nirmala Rathore W/o Mahesh Chandra Rathore Aged About
61 Years R/o House No. 34, Radhavihar Extension, Kamla Nagar, Agra, Uttar Pradesh....Respondent/defendant No. 6
5. Smt. Shakuntla Rathore W/o Satish Singh Rathore, Aged About 59 Years R/o Jaiprakash Nagar, Aadhartaal, Jabalpur, Madhya Pradesh ........Respondent / Defendant No. 7
6. Smt. Anita Rathore W/o Vijay Kumar Rathore, Aged About 45 Years R/o Opposite Pani Tanki, Shankar Nagar, Durg, Chhattisgarh....Respondent / Defendant No. 8
7. Anil Kumar Tharwani S/o Ramesh Lal Tharwani Aged About 32 Years R/o- Katora Talab, Tehsil And District Raipur, Raipur, Chhattisgarh And Municipal House No. 38/65, Mohalla Handipara, Mominpara, Nearby Lalita Chowk, Ward Tatyapara, Raipur, Chhattisgarh....Respondent / Defendant No. 9 ---- Respondent (Cause Title downloaded from CIS Periphery)
For Applicants Mr. Manoj Paranjpe, Advocate SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari
Order On Board
5/2/2024
1. This revision is filed by the applicants/defendants 1 to 3 being aggrieved by the order date 17.8.2023 passed by the Seventh Additional District Judge, Raipur (CG) in Civil Suit No.167-A/2015, whereby, the application preferred by them under Order 7 Rule 11 of the CPC has been dismissed.
2. Brief facts of the case are that respondent No.1/plaintiff filed a Civil Suit for declaration of partition, possession and permanent injunction. The relief of declaration was sought to the effect that the plaintiff is the owner of 1/7th share of the subject property and further, a declaration was sought to the effect that the sale- deed executed on 6.12.2013 by defendants 1 & 9 is not binding on the plaintiff.
3. Learned counsel for the applicants would submit that though the reliefs of partition and possession have been claimed but in view of Section 7 (vi-a) of the Court Fees Act, 1870 (in short “the Act, 1870”) in the suit for partition, the computation of fees payable on such suit has been described. It is stipulated in the said clause that if the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner, and his claim to be co- parcener or co-owner on such date is denied, his share shall be determined according to the full value of such share on the date of presentation of the plaint. However, here, the plaintiff has valued the suit property and in his share on the basis of the sale- deed, which has been executed on 6.12.2013. The value of the sale-deed was amounting to Rs.18,02,000/- and accordingly, in one share, the plaintiff has valued the suit property to the tune of Rs.2,57,428/- (1/7th of share), which was not the market value on the date of presentation of the plaint as the plaint has been filed after two years of the execution of the sale-deed i.e. on 26.11.2015. Hence, the valuation made by the plaintiff is not proper and is undervalued. He submits that the trial Court, by observing that if the plaintiff had paid the deficit court fees, the same can be corrected, but on such score, the plaint cannot be rejected at that juncture, dismissed the application of the defendants under Order 7 Rule 11 of the CPC. For the above submissions, he places reliance on the judgment rendered in the matter of Shakuntla Butani (Smt.) Vs. Smt. Poonam Butani , I.L.R. (2012) M.P., 2113.
4. Heard learned counsel for the parties and also perused the record. 5. In the matter of Shakuntla Butani (Smt.) (Supra), the well settled law has been reiterated that the Court fees has to be paid on the full market value of the property on the date of presentation of the plaint and if the suit has been filed for partition, then, the valuation has to be reckoned as per the provisions under Section 7 (vi-a) of the Act, 1870.
6. In the instant case, which has been filed in the year 2015, the guideline which has been submitted by taking an objection that the suit is undervalued relates to the year 2019-20 and that cannot be taken into consideration. Further, the Act, 1870 enables the Court to ascertain the market value under Section 9 of the said Act and if the valuation has wrongly been made, then, the procedure stipulated under Section 10 of the Act, 1870 has to be followed and the Court shall require the plaintiff to pay that much additional fees which would have been payable had the said market value or net profit been estimated rightly and until the additional fee is paid, the suit shall be stayed. If the additional fee is not paid within such time, the suit shall be dismissed.
7. For the foregoing, this Court is of the opinion that since the defendants have raised an issue regarding valuation, such issue has to be decided at first by the concerned trial Court before proceeding further on into the root of the case.
8. In view of the above, this revision petition is disposed of.
However, the trial Court is directed to decide the issue of valuation as a preliminary issue and thereafter proceed further.
