SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Ou vs Neeraj Lalchand Kalro And Ors. : on 13 February, 2013

Bombay High Court Ou vs Neeraj Lalchand Kalro And Ors. : on 13 February, 2013Bench: R. M. Savant

wp-9518.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

rt

WRIT PETITION NO.9518 OF 2012

ou

Lalchand Kalro and ors. : Petitioners versus

Neeraj Lalchand Kalro and ors. : Respondents. C

Mr. Anil C Singh,Senior Advocate with Mr. Anil D Yadav for the Petitioners. Mr. Santosh D Raje for the Respondent No.2. CORAM : R. M. SAVANT, J.

h

DATE : 13th February 2013

ORAL ORDER

ig

H

1 Rule with the consent of the learned counsel for the parties made returnable forthwith and heard.

y

ba

2 A short question which arises in the above Petition is, whether the Plaintiffs are required to pay court fees in terms of Section 6(iv)(j) of the om

Bombay Court Fees Act or as directed by the Trial Court under Section 6(iv)(d) of the Bombay Court Fees Act.

B

3 To appreciate the controversy involved, a few facts are necessary to be cited. The Plaintiffs have filed a suit being S.C.Suit No.439 of 2011 in the City Civil Court at Bombay, and the substantive relief sought in the said suit is to the following effect :-

lgc 1 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

“(a) That this Hon’ble Court be pleased to grant permanent injunction restraining the Defendants jointly or severely, their servants, agent and person or persons rt

claiming through or under them from entering and/or remaining upon the suit premises of the Plaintiffs being ou

Flat No.42, Rijhumal Mansion, Peddar Road, Mumbai 400 026 or on any part or portion thereof and remove themselves with their bag and baggages and not to come upon the said flat at any time thereafter in any manner whatsoever.”

C

Hence the suit in question has been filed for simplicitor injunction against the h

Respondents who are the Defendants in the said suit from entering and/or ig

remaining upon the suit premises of the Plaintiffs being Flat No.42, Rijhumal Mansion, Peddar Road, Mumbai 400 026. The suit in question is founded on H

the fact that the Plaintiff No.1 had purchased the suit premises along with his brother Shri Ramchand Kishindas Kalro by an Agreement for Sale dated y

23/08/1979 from Shri Bhim Sen Phull and Smt. Indira B Phull. Thereafter by ba

an Agreement of Sale dated 5/5/1983 the Plaintiff’ No.1’s brother sold his one half share to the Plaintiff No.1 on the terms and conditions mentioned therein. om

It seems thereafter the Plaintiffs have been accepted as members of the society and the society has transferred the Share Certificate from the name of the B

previous owners to the names of the Plaintiffs. It is the case of the Plaintiff that they are regularly paying maintenance charges to the society. It is further averred in the plaint that the Respondent No.1 was born some time in the year 1976 and he and the Respondent No.2 were married in the year 2008. It is further averred that the Respondents were staying with the Plaintiffs as lgc 2 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

members of the family. The estrangement between the Respondent Nos.1 and 2 has been averred as also there are averments relating to the proceedings filed rt

by the Respondent No.2 under the Protection of Women from Domestic ou

Violence Act as also the criminal case filed against the Petitioners and the Respondent No.1 wherein the Respondent No.1 has been charged under C

Section 498A of the Indian Penal Code. The cause for filing of the suit in question as averred in the plaint are the said background facts on account h

which the Plaintiffs are seeking injunction against the Respondent Nos.1 and 2 ig

from entering the premises in question. It seems that in the proceedings adopted by the Respondent No.2 under the Protection of Women from H

Domestic Violence Act (for brevity sake referred to as “the Domestic Violence Act), an order has been passed under Section 17 thereof mandating the y

Respondents in the said application i.e. the Petitioners herein and the ba

Respondent No.1 to permit the Respondent No.2 to stay in the shared household. The Appeal filed by the Petitioner No.2 and the Respondent No.1 om

herein has been dismissed, and therefore in so far as the proceedings under the Domestic Violence Act are concerned, there is an order in favour of the B

Respondent No.2 under Section 17 of the said Act. 4 In so far as the present proceedings are concerned, it seems that the Respondent No.2 herein filed a Written Statement and questioned the title of the Petitioners to the flat in question. In the light of the pleadings which lgc 3 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

were on record, the Trial Court had initially framed some issues. It seems that thereafter the issues were recasted by the learned successor Judge of the Judge rt

who had framed the issues. The Respondent No.2 herein thereafter filed an ou

application for retaining the issues which were originally framed by the first Judge. The said application being Chamber Summons No.662 of 2012 came to C

be partly allowed by the order dated 23/7/2012 and consequently the Issue Nos.1 and 3 as originally framed were deleted and Issue No.2 was split up into h

the issues which have been reproduced in the operative part of the said order and which read thus :-

ig

H

i) Whether the plaintiffs are exclusive owners of the suit premises ?

y

ii) Whether defendants Nos.1 and 2 are liable to be restrained by perpetual injunction from entering upon ba

the suit premises or remaining there or liable to be removed with b ags and baggages on account of exclusive ownership of the plaintiff and their unwillingness to allow the defendants to reside in the om

premises ?

The roznama of the suit for the said day i.e. 23/7/2012 records “No objection” B

of the learned counsel appearing for the Petitioners i.e. the Plaintiffs in the suit for framing the aforesaid issues. The Trial Court has framed Additional Issues which are reflected in the roznama and which read thus :- lgc 4 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

3A) Whether the suit has been valued and whether proper court fees are paid?

rt

3B) Whether this court has pecuniary jurisdiction to ou

conduct this suit ?

C

It seems after the said issues were framed the evidence of the witness of the Plaintiffs i.e. Plaintiff No.1 was being recorded and was under cross h

examination at the relevant time when the application in question being ig

Chamber Summons No.662 of 2012 was filed by the Respondent No.2 herein raising a preliminary issue. In terms of order dated 23/7/2012 preliminary H

issues to the following effect were framed :- y

1) Whether the suit has been properly valued and ba

whether the court fee has been properly paid? 2) Whether this court has pecuniary jurisdiction to try this om

suit ?

B

The said issues have been answered by the Trial Court by the impugned order dated 10/8/2012 against the Plaintiffs. The Trial Court observed that the suit was not properly valued and court fee was not properly paid. The Trial Court also observed that the provisions of Section 6(iv)(d) are clearly applicable to the suit in question and the suit would have to be valued on the market value lgc 5 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

and the court fee payable would be half of the ad volerem fees. The Trial Court therefore concluded that the suit was not properly valued and the court rt

fee was not properly paid and therefore the Trial Court granted 15 days to the ou

Plaintiffs to make proper valuation and to pay proper court fees. C

5 The gist of the reasoning of the Trial Court was that Section 17 of the Domestic Violence Act has created a new right in favour of a wife or a h

person having live-in-relationship, and that is the right of residence in the ig

shared household. The Trial Court goes on to say that previously, a son or a daughter were having no right in the property of their father unless it was joint H

family property. The Trial Court therefore held that the judgments cited on behalf of the Plaintiffs were not applicable as there was no defence in the said y

judgments that the property in question was the joint family property. It is on ba

the said basis that the Trial Court has concluded that Section 6(iv)(d) of the Bombay Court Fees Act would be applicable qua the suit in question. om

6 Heard the learned counsel for the parties. The learned Senior B

Counsel appearing on behalf of the Petitioners Shri Singh would contend that the suit in question is one for simplicitor injunction on the basis of title and therefore there was no question of the Plaintiffs claiming declaration of title in their favour. The learned Senior Counsel for the Petitioners would contend that the right if any conferred under Section 17 of the said Act, would not lgc 6 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

impinge upon the ownership of the Plaintiffs in respect of the suit property and for the said purpose sought to rely upon the judgment of the Apex Court rt

reported in 2007 AIR (SC) 1118 in the matter of S R Batra & another v/s ou

Taruna Batra. The Apex Court in the said judgment has held that if the phrase “shared household” is to be interpreted to mean and include a household C

where the person aggrieved lives or at any stage has lived in a domestic relationship, it would result in that the property becoming a shared household h

when it is quite possible that the husband and wife may have lived together in ig

dozens of places along with all the relations like brothers, sisters, father etc. This will result in the wife insisting in living in the all these houses of her H

husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. The Apex Court observed that such a view y

would lead to chaos and would be absurd. The learned Senior Counsel for the ba

Petitioners would contend that though the Plaintiffs have agreed to the issue being framed in respect of their exclusive ownership, it would not entail the om

Plaintiffs paying the court fees as it is the case of the Plaintiffs that they are absolute owners of the property in question. The learned counsel would B

contend that there is no declaration of ownership sought by the Plaintiffs, and therefore, there is no question of the suit being valued under Section 6(iv)(d) of the Bombay Court Fees Act.

lgc 7 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

7 Per contra, the learned counsel appearing on behalf of the Respondent No.2 Shri Raje would contend that the Plaintiffs having agreed to rt

framing of the issue of exclusive ownership now cannot avoid payment of court ou

fees as ultimately the said issue has to be tried and a finding would have to be recorded by the Trial Court. The learned counsel for the Respondent No.2 C

would contend that since the Respondent No.2 has an order under Section 17 of the Domestic Violence Act in her favour, the question of exclusive ownership h

of the Plaintiffs arises and therefore the Plaintiffs are required to pay the court ig

fees as per Section 6(iv)(d) of the Bombay Court Fees Act. The learned counsel would contend that as the order dated 23/7/2012 that is the order which is H

preceding the impugned order has not been challenged by the Plaintiffs, it is now not open for the Plaintiffs to challenge the impugned order. y

ba

8 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. At the outset it is required om

to be noted that the suit in question is one for simplicitor injunction filed against the Respondent Nos.1 and 2. The cause for seeking the said injunction B

has been mentioned in the plaint. In so far as the title of the Plaintiffs is concerned, the Plaintiffs have elaborately stated how they have acquired title to the property in question. The factum of the Plaintiffs having purchased the property and the flat is standing in their names therefore cannot be disputed. The question is whether the Plaintiffs are required to value their suit under lgc 8 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

section 6(iv)(d) of the Bombay Court Fees Act. For the said purpose the provisions of section 6(iv)(d) of the Bombay Court Fees Act are required to rt

reproduced and is reproduced herein under :- ou

“(iv) (d) for ownership etc. of immovable property, etc — In suits for declaration in respect of ownership, or nature of tenancy, title, tenure, right, lease, freedom or C

exemption from, or non-liability to, attachment with or without sale or other attributes, of immovable property, such as a declaration that certain land is personal property of the Ruler of any former Indian State or h

public trust property or property of any class or community one-fourth ad valorem fee leviable for a suit ig

for possession on the basis of title of the subject-matter, subject to a minimum fee of 1[ one hundred rupees ]: H

Provided that, if the question is of attachment with or without sale the amount of fee shall be the ad valorem fee according to the value of the property sought to be protected from attachment with or without sale or the y

fee 2[ Sixty Rupees ], whichever is less : ba

Provided further that, where the defendant is or claims under or through a limited owner, the amount of fee shall be 3[one-third]of such ad valorem fee, subject to the minimum fee specified above :

om

Provided also that, in any of the cases falling under this clause except its first proviso, when in addition any consequential relief other than possession is sought the amount of fee shall be one-half of ad valorem fee and B

when the consequential relief also sought include a relief for possession the amount of fee shall be the full ad valorem fee.”

The said provisions apply to a suit where a declaration of ownership is sought in respect of immovable property. In the instant case as the plaint discloses the only relief that is sought is an injunction against the Respondent Nos.1 and 2 lgc 9 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

herein, and that there is no declaration of ownership. The fact that the issue as to whether the Plaintiffs are the exclusive owners of the property has been rt

framed to facilitate the adjudication of the main substantive relief claimed in ou

the suit would not mean that the Plaintiffs have to value the suit on the basis that they are claiming declaration of their ownership. Framing of issue of C

ownership in a suit filed for injunction has been well recognized by judicial pronouncements. A useful reference can be made to the judgment of a learned h

Single Judge of this Court reported in 1995 (3) Bom. C.R. 218 in the matter ig

of Conrad Dias v/s Joseph Dias. The said case was also a case where the landlord-father was seeking injunction against his son. The son had questioned H

the father’s title to the property and had claimed adverse possession. It is in the context of the relief of injunction sought that the Trial Court had framed the y

issue. Therefore merely because the issue of exclusive ownership has been ba

framed that would not bring the suit within the sweep of Section 6(iv)(d) of the Court Fees Act. No doubt the provisions of Domestic Violence Act have om

created a right in favour of a wife or a person having live-in-relationship to lay a claim for living in the shared household, but the said right would not B

impinge upon the ownership right of a person who is the owner of the property, and merely because the order is passed directing the wife to live in the shared household, it would not mean that the suit in question which has been filed for injunction is converted to a suit for declaration of ownership. If this allowed to be done, it would lead to an anomalous position where a lgc 10 of 11 ::: Downloaded on – 09/06/2013 19:39:13 ::: wp-9518.12

persons’ title to the property cannot be questioned, but merely because a person lays a claim that the said property is a shared household, the person rt

who has filed the suit in question for injunction would have to pay court fees ou

on the basis that he is seeking declaration of ownership, when in fact he is the owner. Though the Plaintiffs have not challenged the earlier order dated C

23/7/2012, the same cannot come in their way, as by the earlier order, the issue of exclusive ownership of the Plaintiffs is framed, the Plaintiffs obviously h

do not have any objection to the said issue, but have objection to the payment ig

of court fees on the said basis.

H

9 In my view, therefore, the impugned order in so far as it holds that the suit is covered by the provisions of Section 6(iv)(d) of the Bombay Court y

Fees Act and on the said basis directs the Plaintiffs to make proper valuation ba

and pay property court fees is unsustainable and is required to be quashed and set aside, and is accordingly quashed and set aside. The valuation of the suit in om

question made by the Plaintiffs considering the relief sought in the suit under Section 6(iv)(j) of the Bombay Court Fees Act is proper. The Trial Court is B

therefore directed to proceed with the suit in terms of the valuation as originally made by the Plaintiffs. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. [R.M.SAVANT, J]

lgc 11 of 11 ::: Downloaded on – 09/06/2013 19:39:13 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation