Suresh Kapoor v. Shashi Krishanlal Khanna & Ors.

1. By this order I shall dispose of this application filed by the plaintiff under Order VI Rule 17 read with Section 151 CPC for amendment of the plaint. Vide the said amendment the plaintiff intends to amend / replace paragraph 27(i) of the plaint in the following manner: 2019:DHC:5058 “27(i)For the relief of partition of the suit property, the suit is valued at 13,03,27,088/- (Rs. Thirteen crores Three Lakhs Twenty Seven Thousand and eighty eight only) as per notified circle rates (of November 2011), the Plaintiff being owner of 1/9th share in the said property which is accordingly valued at 1,44,80,788/- (Rs. One crore Forty Four Eighty Thousand Seven Hundred and Eighty Eight only) upon which the court fee of Rs.1,44,000/- (Rs. One Lakh Forty Four Thousand only) is being paid. The plaintiff undertakes to pay further court fee, if any, payable or directed to be paid by this Hon’ble Court.”

2. It is the case of the plaintiff and submitted by Mr. Virender Goswami that this Court vide its order dated October 10, 2014 directed the plaintiff to pay ad valorem Court fee after specifying the market value of his share in the suit property. The Court fee was filed by the plaintiff promptly within the time granted by this Court. According to him, the amendment as stated is necessary and imperative / formal in order to determine the real controversy between the parties to the present suit and the proposed amendment does not in any manner alter or substitute a new cause of action on the basis of which the original plaint was filed.

3. He states that the application is not mala fide as contended by the defendant No.1. That apart, it is his submission that the ad valorem Court fee has been paid by the plaintiff assessing the value of the share of the plaintiff in the property as per the circle rate. This discretion exists with the plaintiff in view of sub-section 4 of Section 7 of the Court fee Act. The Court fee as paid by the plaintiff has not been arrived at arbitrarily and / or whimsically as sought to be contended by the defendant No.1. In other words, it is his submission that the market value of the property as held by this Court in its order dated October 10, 2014 can only be determined by recognized principle which is the circle rate. In support of his submission Mr. Virender Goswami has relied upon the following judgments:

(i) S.Rm.Ar.S.Sp. Sathappa Chettiar v.

(ii) Sheila Devi and Ors. v. Kishan Lal Kalra and Ors.,

(iii) Commercial Aviation and Travel Company and Ors. v.

4. On the other hand, Mr. Sangram Patnaik, learned counsel for the defendant No.1 submits that the present amendment sought by the plaintiff is totally misconceived untenable in fact it is in violation of the order passed by this Court on October 10, 2014 wherein the Court had clearly held that the ad valorem fee on the market value of the plaintiff share in the suit property need to be filed. He laid stress on the fact that the Court has directed to deposit the ad valorem court fee on the basis of the market value of his share in the suit property which only means the value, which the property shall fetch in the open market which according to him, is surely different from the value as per the circle rate. Any order contrary to order dated October 10, 2014 passed by this Court justifying the payment of ad valorem court fee on the basis of the circle rate shall amount to modifying / reviewing the said order which is impermissible.

5. In substance, it is his submission that the market value and circle rate of the property are completely two different concepts which works on separate parameters for the purpose of fixing the rate of the property. He would also state that it is not the case of the plaintiff that the circle rate and the market rate of the property is one and the same. In support of his submissions Mr. Sangram Patnaik has relied upon the following judgments: Sr. No. Judgments Proposition

1. Chander Kanta Bansal v. Rajinder Singh Anand, AIR 2008 SC

2. Lal Chand v. UOI and Anr.,(2009) 15 SCC 769, Market Value is different than that of Circle Rate of the Property.

3. Balwant Singh v. UOI and Anr., 2016 SCC Online Del 154 Circle Rate is lower than the actual market rate of the property.

4. Thakur Kuldeep Singh (death) through Lrs. And Ors. v. UOI and Ors. (2010) 3 SCC 794 Locality and Prevailing factors are the indicators of market value of land.

6. Having heard the learned counsel for the parties, there is no dispute that the Court in its order dated October 10, 2014 has clearly held that the plaintiff is not entitled to pay fix court fee rather he is to pay ad valorem court fee on the market value of his share. In other words, the value of plaintiff’s share has to be determined on the basis of the rate, which the property would fetch in the open market.

7. During the course of submissions an attempt was made by Mr. Virender Goswami to contend that the circle rate would determin the market value of the property. On a specific query whether, has he stated in the application that the circle rate of the property is equivalent to the market value of property, the answer is in the negative. At the same time, even the defendant No.1 has not placed any material on record to show that the circle rate of the property is at variance with the market rate of the property. The issue whether the market value of the property is higher than the circle rate of the property is mixed question of fact and law. In the absence of any documentary evidence, it is difficult to agree with the respective submissions made by the counsel for the parties.

8. No doubt, they have relied upon the judgments in support of their contentions, including the proposition of law that the plaintiff is within his right to value the suit for the purpose of court fee and jurisdiction but at the same time, the conclusion of this Court in the order dated October 10, 2014 cannot be over looked. The said order is conclusive, as I have been informed that even an appeal before the Division Bench against the said order has been dismissed. So, it follows the order to be passed by this Court in this application cannot have the effect of modifying the order already passed on October 10, 2014. So, the question would be whether in fact the market value of the property is more than the circle rate. If yes, surely the plaintiff is liable to pay the court fee over and above the one he has paid now by valuing the property on the basis of the circle rate. But the arguments of both the counsels are in air without any material to support their respective contention. This issue can only be decided on the basis of evidence to be placed before the Court by the parties. In such a situation, appropriate shall be for the Court to frame an issue whether the suit has been properly valued. I have noted that the issues have still not been framed in the case. So, such an issue can be framed as and when they are framed in the suit. The application is allowed. The amendment as sought to be made is allowed to be incorporated in the plaint. Let amended plaint be filed in four weeks with documents. Written statement shall be filed within four week thereafter with affidavit of admission / denial of documents. Replication shall be filed within four weeks of filing of the written statement with admission / denial of documents of the defendants. The application is disposed of. CS(OS) 236/2010, I.As. 5415/2011 & 23113/2014 List the suit along with applications for hearing on 18th November, 2019.