Kishore Singh Vs. Paras Nath Singh & Ors  Insc 620 (22 November 2001)
Lahoti & Brijesh Kumar
Kishore Singh, the appellant and his two minor sons suing through the appellant
as next friend, have filed a suit for partition of movable and immovable
properties registered as T.P. Suit No. 489 of 1993 in the Court of Sub-Judge-I,
Patna. A perusal of the plaint shows that the parties are alleged to be members
of joint Hindu Mitakshara family and the properties forming subject matter of
the suit, set out in the two schedules annexed with the plaint (Schedule-I
listing the immovable properties and Schedule II listing the movable
properties) are alleged to be joint family properties of the parties. The
source of acquisition of properties is alleged to be joint family funds.
share claimed by the plaintiffs is 25/3 paise out of 100 paise.
remaining shares belong to the defendants. The reliefs sought for are:
preliminary decree defining plaintiffs share at 25/3 paise in the suit
properties described in Schedule I & II of the plaint,
of a commissioner to divide the properties by metes and bounds, and
the plaintiffs in exclusive possession over the property falling in their share.
The suit is valued at Rs.16 lakhs for the purpose of jurisdiction but according
to the plaintiffs it being a simple suit for partition a fixed court fee of
Rs.29.25 p. only is liable to be paid which has been affixed on the plaint.
appears that the defendant No.20 moved an application on 3.10.96 submitting
that the properties exclusively belonging to her, being her self-acquired
properties, as evidenced by the documents filed by her with the written
statement, have been included in the suit for partition and so either the
defendant No.20 be deleted from the array of the parties or in the alternative
the plaintiffs be directed to pay ad-valorem court fee on the market value of
the properties standing in the name of this defendant amounting to Rs.30,50,000/-.
order dated 17.12.96 the trial court allowed the objection petition filed by
the defendant No.20 and directed as under:- the petition of defendant no.20 dt.
3.10.96 is allowed and the plaintiffs directed to first pay ad-valorem court
fee over the properties standing in the name of defendant no.20 which were
included in the suit property on the value of 10% above as given in the sale
deeds of these properties the photo copy of which has been filed on behalf of
the defendant no.20. Put up on 9.1.97.
the passing of the above order, the defendant no.20 moved yet another petition
submitting that the plaintiffs should have been directed to pay ad-valorem
court fee on Rs.29,39,760/-, the value of the land and the houses standing
thereon, included in the suit property and that there was a typing mistake in
the order dated 17.12.96 wherein the direction should have been to pay court
fee on 10 times of the value of the properties given in the sale deeds (filed
by the defendant no.20) and not 10% as typed in the said order. By order dated
1.3.97 the trial court directed as under:- .. the petition of the defendant
no.20 dated 9.1.97 is allowed and the order passed by this court dated 17.12.96
is also corrected and modified and the plaintiff is directed to pay ad valorem
court fee over the value of Rs.29,39,760/-. Put up on 10.5.97 for filing the
perusal of the above order shows the trial court having been persuaded to hold
that 10 times of the value of the properties calculated on the basis of deeds
filed by defendant No.20 with her written statement comes to Rs.10,39,760/- to
which should be added value of 4 storeyed constructed pucca house which is
Rs.19 lacs and thus the suit should have been valued at Rs.29,39,760/- and ad- valorem
court fee paid thereon by the plaintiffs.
aggrieved by the order dated 1.3.97 the plaintiff No.1 filed a civil revision
under Section 115 of the C.P.C. before the High Court of Patna. The principal
grievance raised by the appellant before the High Court was that the order
dated 1.3.1997 was passed without affording him any opportunity of hearing and
hence was liable to be set aside. By the impugned order dated 20.8.97 the High
Court has dismissed the revision forming an opinion that the order dated 1.3.97
was an order directing only a clerical error to be corrected which the court
was empowered to do and hence no fault could be found with the impugned order.
The plaintiff has filed this petition seeking special leave to appeal.
opinion the appeal deserves to be allowed and the matter deserves to be
remitted back to the High Court for decision afresh.
going into the question whether the order dated 17.12.96 suffered from only a
clerical error it is clear that the order dated 1.3.97 was in substantial
departure from the order dated 17.12.96. By order dated 1.3.97 the trial court
directed the plaintiffs to value the suit at 10 times of the value given in the
sale deeds of the properties, the photocopies whereof were filed by the
defendant no.20 with the written statement. A reading of the order dated 1.3.97
shows that this order could not have been construed as the one correcting a
clerical/typing error only; it substantially modified the earlier order dated
17.12.96 and in effect was the real order causing grievance to the plaintiffs.
The order dated 1.3.1997 is not to be read in isolation.
revision filed by the plaintiff/appellant before the High Court could not have
been disposed of without testing correctness of both the orders dated
17.12.1996 and 1.3.1997.
well settled that the court fee has to be paid on the plaint as framed and not
on the plaint as it ought to have been framed unless by astuteness employed in
drafting the plaint the plaintiff has attempted at evading payment of court fee
or unless there be a provision of law requiring the plaintiff to value the suit
and pay the court fee in a manner other than the one adopted by the plaintiff.
The court shall begin with an assumption, for the purpose of determining the
court fees payable on plaint, that the averments made therein by the plaintiff
are correct. Yet, an arbitrary valuation of the suit property having no basis
at all for such valuation and made so as to evade payment of court fees and
fixed for the purpose of conferring jurisdiction on some court which it does
not have, or depriving the court of jurisdiction which it would otherwise have,
can also be interfered with by the court. It is the substance of the relief
sought for and not the form which will be determinative of the valuation and
payment of court fee.
taken in the written statement may not be relevant for the purpose of deciding
the payment of court fee by the plaintiff. If the plaintiff is ultimately found
to have omitted to seek an essential relief which he ought to have prayed for,
and without which the relief sought for in the plaint as framed and filed
cannot be allowed to him, the plaintiff shall have to suffer the dismissal of
the suit. These principles of law were over-looked by the trial court in passing
the impugned order which was put in issue before the High Court. We are further
of the opinion that though the revision preferred by the plaintiff was directed
against the order dated 1.3.97, the real question arising before the High Court
was to find out whether the suit was properly valued and proper court fee was
paid thereon in accordance with law. While doing so if the High Court was
required to examine the correctness or otherwise of the order dated 17.12.96 it
should not have felt inhibited from doing so. In the facts of the present case
we are clearly of the opinion that the High Court was not justified in
dismissing the revision on the ground that the order dated 1.3.97 was an order
correcting a clerical or typing error only.
two orders of the trial court do not refer to any relevant provision of law or
a binding precedent based on which the trial court was persuaded to take the
view which it did.
learned counsel for the defendant-respondent pointed out that during the course
of arguments, on 17.12.1996, the plaintiff had agreed to pay the ad-valorem
court fees on the properties and asked the defendant-applicant to file the
deeds of the said properties in order to ascertain the valuation of the said
property. What is the effect of such concession shall also be taken into
consideration by the High Court and we express no opinion thereon.
appeal is allowed. The impugned order of the High Court dated 20.8.97 is set
aside. The Civil Revision No.901 of 1997 shall stand restored on the file of
the High Court. The High Court shall after affording the contesting parties an
opportunity of hearing decide the revision afresh and expeditiously,
consistently with the observation made hereinabove. A short point is arising
for decision and much time has already been lost. Further the pendency of the
revision has stalled progress of the suit pending before the trial Court.
. . .
. . . . . . . . . . . . . . . . . . . .J.
Lahoti ) . . . . . . . . . . . . . . . . . . . . . . .J.
Kumar ) November 22,