HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No. 570/2021

1.

Prahlad Bagdi Son Of Shri Kanhaiyalal Bagdi, Aged About

46 Years, Presently Resident Of - Bada Bazar, Kolkata,

Through Mukhtyaraam Lalluram Yadav Son Of Shri

Kaluram Yadav Resident Of C-60, Dr. Rajendra Prasad

Nagar, Badarwas, Jaipur.

2.

Lallulal Son Of Shri Kaluram Yadav, Aged About 65 Years,

Resident Of C-60, Dr. Rajendra Prasad Nagar, Badarwas,

Jaipur.

----Petitioners/Plaintiffs

Versus

1.

Smt. Gayatri Agrawal Wife Of Shri Dinesh Kumar Agrawal,

Resident Of C-65A, Surya Path, Roop Vihar, New

Sanganer Road, Jaipur.

2.

Shri Chandra Sharma Son Of Shri Nandlal Sharma,

Resident Of Plot No. A-1-A, Vardhman Nagar-B, Ajmer

Road, Jaipur.

3.

Smt. Indramani Bakliwal Wife Of Shri Prashan Kumar,

Resident Of C-157, Shyam Nagar, Jaipur.

4.

Sanyukt Grih Nirman Sahakari Samiti Limited, Through

Prashashak Mahoday Office Registrar Cooperative Society

Samudayik Kendra, Vasundhra Colony, Dev Nagar, Tonk

Road, Jaipur.

----Respondents/defedants

For Petitioner(s)

:

Mr. Shashi Shekhar Gaur with

Ms. Ankaksha Mathur

For Respondent(s)

:

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

03/02/2021

This writ petition filed under Article 227 of the Constitution of

India is directed against the order dated 25.08.2020 passed by

(2 of 3)

[CW-570/2021]

the learned Civil Judge (East) Jaipur Metropolitan-I, Jaipur

whereby, while entertaining the objection raised by the defendants

as to insufficiency of court fee, the petitioners-plaintiffs have been

directed to pay sufficient court fee after proper valuation of the

suit as per market value of the property.

Assailing the order, learned counsel submitted that in

absence of written statement, the defendants could not have

raised objection as to insufficiency of court fee. He submitted that

sufficient court fee was paid as it was on the basis of the amount

paid by the plaintiffs to the defendant No.4. He further submitted

that the sufficiency of court fee is a mix question of law and fact

and in absence of any evidence in this regard, the learned trial

Court could not have held the court fee paid by them to be

insufficient. He, therefore, prayed that the order impugned dated

25.08.2020 be quashed.

Heard learned counsel for the petitioner and perused the

record.

It is trite law that the defendant can maintain an application

under Order 7 Rule 11 CPC prior to filing the written statement.

Even otherwise also, Section 11 of the Rajasthan Court Fees and

Suits Valuation Act, 1961 (for brevity, "the Act of 1961") entitles a

defendant to raise objection as to sufficiency of court fee paid by

the plaintiffs and hence, objection by the plaintiffs-petitioners in

this regard is not tenable.

In so far as the sufficiency of the court fee paid is concerned,

learned counsel for the petitioners fairly admitted that in view of

the relief claimed in the plaint, i.e. declaration and possession of

the suit property, provisions of Section 24 (a) of the Act of 1961

would apply.

(3 of 3)

[CW-570/2021]

Section 24(a) of the Act of 1961 reads as under:-

"24 Suits for declaration.- In a suit for a

declaratory decree or order, whether with or without

consequential relief, not falling under Section 25-

(a) where the prayer is for a declaration and for

possession of the property to which the declaration

relates, fee shall be computed on the market-value of

the property, subject to a minimum fee of twenty

rupees;"

A perusal of the plaint (Annexure-1) reveals that valuation

has not been made as per market value of the property and

hence, the learned trial Court did not commit any error in directing

the plaintiffs to pay requisite court fee after assessing the market

value of the property in terms of Section 7 of 1961.

Resultantly, the writ petition is dismissed being devoid of

merit.

(MAHENDAR KUMAR GOYAL),J

Sudha/69