C.R. 6091 of 2008 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
C.R. 6091 of 2008
Date of decision:- 3.11.2009
Agroha Vikas Trust, Agroha
petitioner
vs
Ram Bilas and others
Respondent
Present: Mr.Anurag Jain, Advocate
Mr. Vikas Bishnoi, Advocate for respondent No.1
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
M.M.S.BEDI,J.
An application filed by the defendant- petitioner under Order 7
Rule 11, CPC stands dismissed vide impugned order dated 2.9.2008. The
trial court has held that the plaintiff- respondent No.1 has not sought any
decree for possession by way of specific performance, as such the plaintiff
cannot be directed to affix the ad valorem court fee on the plaint. The
case of the plaintiff, as per the plaint, is that plaintiff- respondent No.1 has
sought a decree for declaration to the effect that he is entitled for allotment
of plot No.23 on payment of balance of sale consideration of Rs.90,000/-
and that he has already paid a sum of Rs. 1.00 lac and having been
delivered the actual physical possession of the plot. The plaintiff-
respondent claims that the defendants should be directed to accept the
balance of sale consideration of Rs.90,000/- and he should be allotted the
C.R. 6091 of 2008 2
plot. A decree for permanent injunction has also been prayed for by the
plaintiff to restrain the defendants from alienating the plot in dispute.
Learned counsel for the petitioner has vehemently argued that
the plaintiff- respondent No.1 is neither claiming possession over the
property nor any mention has been made about the possession of the
property, as such the trial court has wrongly dismissed the application of
the defendant- petitioner under Order 7 Rule 11 CPC in the absence of ad
valorem court fee having been affixed on the plaint. The suit of the plaintiff-
respondent No.1 is alleged to be barred by time.
After hearing learned counsel for the petitioner and going
through the plaint and the stage of the case, I am of the opinion the
question whether the suit has to be dismissed in the absence of ad valorem
court fee having been affixed by the plaintiff, is a mixed question of law and
fact as the case of the plaintiff-respondent No.1 for specific performance of
an agreement cannot be said to be strictly a suit for possession. The suit
seems to be in the nature of a mandatory injunction seeking a direction to
the defendant- petitioner to deliver the possession of the plot, the same
having been agreed to be allotted to him on payment of consideration
amount. Taking into consideration the totality of the circumstances, it is felt
that ends of justice will be adequately met in case the plaintiff- respondent
No.1 is permitted to proceed with the case. It is further observed that in
case any objection regarding the court fee is raised, the same would be
decided, in accordance with law, after framing a necessary issue in this
regard. In case, ultimately, it is held that the ad valorem court fee is
required to be affixed, it will be open to the trial court to issue a direction to
the plaintiff to make good the deficiency of court fee, in accordance with
law by deciding the issue of court fee. Similarly, the plea of limitation will
C.R. 6091 of 2008 3
also be adjudicated upon by the trial court on the basis of facts and law.
The trial court seems to have rightly not shut the doors of the court for
adjudication of the questions, raised by the defendant- petitioner by
dismissing the application under Order 7 Rule 11 CPC.
With the above observations and directions, the revision
petition stands disposed of.
November 3 ,2009 (M.M.S.BEDI) TSM JUDGE