GAURANG KANTH, J. (ORAL)

1. The hearing has been conducted through hybrid mode (physical and virtual hearing).

C.M. Nos. 5027/2023 & 5028/2023 (Exemptions)

1. Applications are allowed, subject to all just exceptions.

2. Applications stand disposed of.

RFA 84/2023

3. At the outset itself, the appellant states that he has filed all the relevant documents, which are required for the adjudication of the present appeal. Hence, with the consent to the learned counsel for the parties, the present appeal is taken up for final disposal.

4. The appellant (original plaintiff) is aggrieved by the impugned judgment and decree dated 26.11.2022 passed by the learned Additional District Judge-01, Shahdara, Karkardooma, Delhi in CS No.739/2022 titled as ‘Bhim Singh vs. Rajiv Gupta etc.’.

5. Vide the impugned judgment the learned Trial Court was pleased to dismiss the suit for permanent and mandatory injunction filed by the appellant holding that it has no pecuniary jurisdiction to entertain the same.

6. Learned counsel for the appellant submits that Section 4 of Suits Valuation Act, 1887 read with Volume I Chapter 3 Part-C of Delhi High Court Rules stipulates that valuation of immovable property should be determined on the basis of value of immovable property. The appellant, being the dominus litis, valued the suit for Rs.1,36,00,000/- (Rupees One Crore Thirty Six Lacs only) for the jurisdictional purpose. Hence, the suit was well within the pecuniary jurisdiction of the learned Trial Court. Learned counsel for the appellant further submits that the impugned judgment is contrary to the law laid down by this Court in Smt. Sheila Devi & Ors. vs. Shri Kishan Lal Kalra & Ors., ILR (1974) II Delhi 491, Shakuntala Rani vs. Rajesh Bhatt (Deceased) Thr. LRs, 80 (1999) DLT 98 (DB) and Veena Bahl & Ors. vs. Manmohan Bahl & Ors. 238 (2017) DLT 281.

7. Learned counsel for the appellant further submits that even if the Trial Court was of the view that it has no pecuniary jurisdiction to try the present suit, the right course would have been to return the plaint under Order VII Rule 10 of the Code of Civil Procedure, 1908 and that the learned Trial Court ought not to have dismissed the suit filed by the appellant. In order to buttress his arguments, he has placed reliance on ‘Vijay Kumar Sachdev & Anr. vs. Baldev Raj Bhutani & Anr.’, 1992 SCC OnLine Delhi 1990.

8. This Court has examined the plaint.

9. The appellant filed the suit for permanent and mandatory injunction. Regarding the court fee, the appellant in his plaint stated as follows:-

“15. That the suit property is measuring about 1300 Sqr. Yards and the total consideration amount had paid to its previous owner by the land lord of the suit property is Rs.1,36,00,000/- and it is less than 2,00,00,000/- hence this this (sic) Hon'ble Court has the Jurisdiction to entertain the present suit.

16. That the suit is valued for the relief of mandatory and permanent injunctions are at Rs.260/- (Rs.130/- + Rs.130/-), upon which the plaintiff has paid fixed court fee of Rs.26/- (Rs.13/- + Rs.13/-).”

10. From the perusal of the plaint, it transpires that for the purposes of pecuniary jurisdiction, he valued the suit for Rs.1,36,00,000/- and for permanent and mandatory injunction, he valued it for Rs.260/-, however, he paid the court fee of Rs.26/- for the prayer of mandatory injunction. Hence, in these circumstances, the learned Trial Court dismissed the suit filed by the appellant holding that the Trial Court has no jurisdiction to try the present suit.

11. A Co-ordinate Bench of this Court in CS(OS) 172/2021 titled as ‘Rajinder Singh Bhatia vs. Manju Bhatia’ had an occasion to deal with an identical issue. In this case, the plaintiff filed a suit for permanent and mandatory injunction. He valued his suit for Rs.2.5 Crores for the purpose of jurisdiction and affixed only the fixed court fee for mandatory and permanent injunction by valuing it for Rs.500/-. In these circumstances, this Court, vide order dated 22.08.2022, held as follows:-

“8. The sole objection is that once the valuation of the suit has been done at Rs.2.5 crore for the purpose of jurisdiction, the court fee is liable to be paid on the same amount and the plaintiff cannot have a different valuation for payment of court fees.”

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“12. It therefore, follows that though it is in the discretion of the plaintiff to value his suit as per his bona fide belief and discretion, but once he has valued his suit in terms of Section 8 of the Suit Valuation Act, the court fee shall become payable on the same amount in terms of Section 7 of the Court Fees Act. The plaintiff cannot adopt a dual policy of valuing his suit at a certain value for the purpose of jurisdiction and for the purpose of payment of court fees. Once the suit has been valued at a certain value, the advolerum court fees has to be paid mandatorily on the same valuation.”

12. As rightly held by the Coordinate Bench of this Court, the appellant, being the dominus litis is free to decide the value of the suit but once he has valued his suit according to his wish, he needs to pay the court fee on the said amount. In the present case, the appellant valued the suit for Rs.1,36,00,000/- for the purposes of pecuniary jurisdiction, accordingly, he has to pay the court fee on the said amount.

13. Learned counsel submits that the learned Trial Court erred in dismissing the suit by holding that it has no pecuniary jurisdiction to entertain the suit. It is the submissions of learned counsel for the appellant that the learned Trial Court had the pecuniary jurisdiction to try the suit filed by the appellant, and if learned Trial Court was of the view that the appellant had affixed deficit court fee, the learned Trial Court ought to have tried the suit after giving an opportunity to the appellant to make good the deficit court fee.

14. The appellant is placing reliance on the decision rendered by this Court in Vijay Kumar Sachdev & Anr. (supra) to contend that the learned Trial Court ought to have returned the plaint if the Trial Court was of the view that it does not have pecuniary jurisdiction to try the said suit. This Court is in respectful agreement with the ratio of the said judgment. However, the present case is not a case where the learned Trial Court was not having the jurisdiction. As per the plaint, the learned Trial Court had the jurisdiction. Hence, this is not a situation where the plaint can be returned under Order VII Rule 10 CPC for proper presentation before the Court of appropriate jurisdiction. This is the case where plaintiff filed the suit before the Court of appropriate jurisdiction but deposited less court fee. Hence, the learned Trial Court ought to have given an opportunity to the appellant to pay the deficit court fee as it was done by this Court in Rajinder Singh Bhatia (supra).

15. In view of the detailed discussion, hereinabove, the impugned order is set aside. The appellant is granted two weeks’ time to file the deficient court fee. The matter is remanded back to the learned Trial Court for adjudication. The appellant is directed to appear before the learned Trial Court on 01.03.2023.

16. The present appeal is disposed with the above directions. All the pending applications are also disposed of.