Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment delivered on: 27 April, 2022
+ CS(OS) 216/2020
SANJEEV KHOSLA ..... Plaintiff
versus
RAJIV KHOSLA & ORS. ..... Defendants
Advocates who appeared in this case:
For the Petitioner: Mr. Rhishabh Jetly, Advocate
For the Respondent: None
CORAM:-
HON’BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J
I.A. 5746/2022 (condonation of delay)
The Supreme Court by its orders 23.03.2020, 27.04.2021 and
10.01.2022 in Suo Motu Writ Petition (Civil) No.3 of 2020 had
suspended the period of limitation in view of the ongoing pandemic.
Accordingly, the delay in filing is condoned.
Application is disposed of.
CS(OS) 216/2020 1
Digitally Signed
By:JUSTICE SANJEEV
SACHDEVA
Signing Date:27.04.2022
23:19
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:28.04.2022 12:24:37
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
I.A. 5745/2022
1. By this application, plaintiff seeks a declaration that the Court
fee paid on the plaint is not deficient.
2. Plaintiff had filed the subject suit for partition, declaration,
permanent and mandatory injunction and rendition of accounts. The
Suit has been decreed on 01.10.2020.
3. An issue has been raised by the Registry contending that the
Court fee paid on the Plaint is deficient by Rs. 5,87,485/-. The
calculation of the Court fee has been placed in the office notings. The
registry has calculated the Court fee on the relief of partition at one-
third of Rs.18 crores i.e. Rs.6 crores being the share of the plaintiff in
the suit properties.
4. Plaintiff had filed the Suit inter alia claiming a preliminary
decree of partition of the suit properties and declaring the Plaintiff to
rd
be an owner of 1/3 share of the suit properties. Plaintiff had further
sought a final decree of partition thereby partitioning the properties by
metes and bounds according to the shares of the parties and delivering
separate possession to the parties.
5. It is observed that the plaintiff in the plaint had categorically
pleaded that plaintiff is in possession of a portion of one of the Suit
properties and has been in continuous possession thereof since the
CS(OS) 216/2020 2
Digitally Signed
By:JUSTICE SANJEEV
SACHDEVA
Signing Date:27.04.2022
23:19
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:28.04.2022 12:24:37
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
year 2008.
6. Reference may be had to the judgments of this Court in
Sudershan Kumar Seth V. Pawan Kumar Seth (2005) SCC Online Del.
932, ILR (2005) 11 Del 662 (2005) 124 DLT 305 wherein this court
has held as under:
| “8. It is settled that in order to decide as to what relief | |
|---|---|
| has been claimed by the plaintiff, the whole of the plaint | |
| has to be read. From the perusal of the plaint if it can be | |
| inferred that the plaintiff is in possession of the any of | |
| properties to be partitioned, then the court fees shall be | |
| payable under Article 17(6) of schedule II of the Court | |
| fees Act i.e fixed court fees at the time of institution of the | |
| suit but if the conclusion is that the plaintiff is not in | |
| possession of any part of the properties then the plaintiff | |
| has to pay Court fees under section 7(iv)(b) of the Court | |
| fees act i.e. on the value of plaintiffs share. 1977 | |
| Rajdhani Law Reporter 54. Jamila Kahtoon v. Saidul | |
| Nisa; AIR 1999 DEU-1148. Smt. Prakash Wati v. Smt. | |
| Dayawanti; 80 (1999) DLT 357, Ms. Ranjana | |
| Arora v. Satish Kumar Arora; 2005 Rajdhani Law | |
| Reporter 23, Harjit Kaur v. Jagdeep Singh and 2005 (80) | |
| DRJ 120, Rajiv Oberoi v. Santosh Kumar Oberoi can be | |
| referred to.” | |
| (underlining supplied) |
7. This court, relying on the decision of the Supreme Court in
Neelavathi v. N. Natarajan, AIR 1980 SC 691, held in Nisheet Bhalla
v. Malini Raj Bhalla, AIR 2007 Del 60 that normally if joint
CS(OS) 216/2020 3
Digitally Signed
By:JUSTICE SANJEEV
SACHDEVA
Signing Date:27.04.2022
23:19
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:28.04.2022 12:24:37
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
possession is pleaded by the plaintiff on the basis that he is the co-
owner of the property, the Court-fee to be paid would be fixed Court-
fee presuming the joint possession and even if the person is not in
actual possession. However, if from the reading of the pleadings it
becomes clear that the plaintiff was excluded from such possession,
then he is liable to pay the ad valorem court-fee on the market value
of his share.
8. A Division bench of this court in Saroj Salkan v. Capt. Sanjeev
Singh , 2008 SCC OnLine Del 1278 : (2008) 155 DLT 300 : (2009) 3
CCC 241 : (2008) 4 Civ LT 542 at page 304 has held as under:
| “13. It is settled law that in a suit for partition, the | |
|---|---|
| Court fees to be paid if joint possession is pleaded by the | |
| plaintiff on the basis that he is the co-owner of the | |
| property sought to be partitioned, fixed Court fees would | |
| be payable under Article 17(vi) of Schedule II of the | |
| Court Fees Act presuming the joint possession of the | |
| plaintiff even if the plaintiff is not in actual possession. It | |
| is because of the reason that in the case of co-owners, the | |
| possession of one is in law possession of all, unless from | |
| the averments in the plaint read as a whole, a clear case | |
| of ouster is made and in that situation the plaintiff is | |
| liable to pay ad valorem Court fees on the market value | |
| of this share as provided under Section 7(iv)(b) of the | |
| Court Fees Act notwithstanding the fact that it is also | |
| pleaded that the plaintiff was in constructive possession.” | |
| (underlining supplied) |
9. Plaintiff has clearly pleaded that plaintiff is in possession of a
CS(OS) 216/2020 4
Digitally Signed
By:JUSTICE SANJEEV
SACHDEVA
Signing Date:27.04.2022
23:19
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:28.04.2022 12:24:37
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
portion of one of the Suit Properties. In view of the specific averment
in the plaint, court fees payable on the relief of partition will not be
governed by Section 7 (iv) of the Court Fees Act but would be
governed by Article 17(vi) of Schedule –II of the Court Fees Act
which requires the plaintiff to pay fixed court fees of Rs. 19.50 and
not ad valorem on the market value of his share.
10. Since the plaintiff has already paid the said court fees, the
directions of the Registry holding that the court fees is deficient and
requiring the plaintiff to pay the deficient court fee of Rs. 5,87,485/-
cannot be sustained.
11. In view of the above, the application is allowed.
12. The demand raised by the Registry of alleged deficient court
fees of Rs. 5,87,485/- is set aside.
SANJEEV SACHDEVA, J
APRIL 27, 2022
‘ rs’
CS(OS) 216/2020 5
Digitally Signed
By:JUSTICE SANJEEV
SACHDEVA
Signing Date:27.04.2022
23:19
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:28.04.2022 12:24:37
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.