Punjab And Haryana High Court · 2009

Present: Mr.LK Sinhal, Advocate. -- PERMOD KOHLI, J. (Oral): Dal Chand, respondent herein filed a suit for declaration with consequential relief of permanent injunction in the Court of Civil Judge (Senior Division),Faridabad. The present petitioners, who are defendants in the suit, filed their written statement and raised preliminary objection that the suit is not properly valued. The defendants filed an application under Order 7 Rule 11 of the Code of Civil Procedure read with Section 7 (iv) (C ) of the Court Fees Act challenging the Court fee affixed by the plaintiff-respondent on the suit. The trial Court has dismissed the said application vide the impugned order holding that the plaintiff had paid the proper Court fees on the plaint and as such is not liable to pay ad valorem Court fee. I have heard the learned counsel for the petitioner. The impugned order is liable to set aside on the simple ground that Order 7 Rule 11 of the CPC is attracted only where there is CR No.3459 OF 2004 : 2 : already determination regarding the Court fee and the party after the said determination fails to pay the Court fee within the time prescribed by the Court.

Relevant extract of Order 7 Rule 11 of the Code of Civil Procedure is reproduced hereunder:-

11. Rejection of plaint- The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c ) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the CR No.3459 OF 2004 : 3 : provisions of rule 9, provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and the refusal to extend such time would cause grave injustice to the plaintiff.

The aforesaid provisions provide for rejection of the plaint where the relief claimed is under-valued and the plaintiff on being required by the Court, to so correct the valuation within a time to be fixed by the Court, fails to do so.

In the present case, the question of determination of the Court fee was first to be decided. The question of payment of Court fee should have been decided after framing of appropriate issue if the defendants have taken any such plea in the written statement. Such questions could not and should not have been decided merely on the basis of the application. It is only when appropriate issue is framed and considered, the Court can formulate its opinion. The impugned order has been passed without framing of any CR No.3459 OF 2004 : 4 : issues on the question of payment of ad valorem court fee. The same is not sustainable in law. In view of the above, the present revision petition is allowed. The matter is remitted back to the trial Court with a direction to frame issues regarding the question of payments of ad valorem Court fee, if such pleas are raised in the written statement and decide the same in accordance with law. No costs.

12.10.2009 BLS (PERMOD KOHLI) JUDGE Note: Whether to be referred to the Reporter? NO