Manju Devi Poddar v. Hari Prakash Poddar

Delhi High Court · 28 Nov 2016 · 2016:DHC:7671

Deepa Sharma

CS(OS) 2281/2013 & C.C. 39/2014

2016:DHC:7671

civil other Significant

AI Summary

The court held that a declaratory counter claim filed by a defendant in possession without seeking consequential relief requires fixed court fee payment and that limitation is a disputed fact to be decided on evidence.

Full Text

CS(OS) 2281/2013 Page 1
HIGH COURT OF DELHI
Date of Decision: 28.11.2016

CS(OS) 2281/2013 & C.C. 39/2014
MANJU DEVI PODDAR ..... Plaintiff
Through: Mr. Shiv Khorana and Mr. Ashish Khorana, Advocates.

VERSUS

HARI PRAKASH PODDAR ..... Defendant/Counter Claimant
Through: Mr. Umesh Mishra, Advocate

CORAM:

HON'BLE MS. JUSTICE DEEPA SHARMA MS. JUSTICE DEEPA SHARMA

C.C. 39/2014

JUDGMENT

1. The plaintiff Manju Poddar has filed the present suit for injunction, eviction, possession and mesne profit in respect of premises of first floor of KU-160, Pritam Pura, New Delhi- 110 034 and also terrace with right to construction of third floor along with indivisible right in land underneath (hereinafter referred to as “the suit property”).

2. The plaintiff has claimed the ownership of the said property by virtue of registered gift deed dated 25.09.2010. The defendant Hari Prakash Poddar has filed his written statement and also filed a counter claim seeking declaration to the effect that the said gift deed is a void document. The counter claim was filed on 24.03.2014. In reply to the counter claim, 2016:DHC:7671 CS(OS) 2281/2013 Page 2 plaintiff raised certain preliminary objections including that the counter claim is under-valued and the defendant was liable to pay the ad valorem court fee on his counter claim and that the counter claim was barred by the limitation as the same is filed beyond the period of three years of accrual of right to sue on 25.09.2010, the date of registration of gift deed.

3. Following issues i.e. Issue no. 5 and Issue no. 6 to that effect were framed by this Court on 27.02.2015. Issue no. 5: Whether the counter claim filed by the defendant is barred by limitation? OPD Issue no. 6: Whether the defendant has not paid sufficient court fee on the counter claim? OPP

4. Subsequently vide order dated 17.08.2016, the court had ordered that issue no. 5 and issue no. 6 shall be treated as preliminary issues. Thereafter, the court heard arguments of the parties on these two issues. Issue no. 6: Whether the defendant has not paid sufficient court fee on the counter claim?

5. It is contended by the plaintiff that by way of counter claim, the defendant is seeking a declaration that gift deed which is a registered document was void and thereby is claiming his right and title in the suit property and he is liable to pay ad valorem court fee but has only paid the court fee of Rs. 20,000/- under Article 17 (iii) of Schedule II of the Court CS(OS) 2281/2013 Page 3 Fees Act. Reliance is placed upon the judgment of Supreme Court in Suhrid Singh Alias Sardool Singh vs. Randhir Singh & Ors. reported in

6. The defendant, on the other hand, has alleged that he is already in possession of the suit premises and present counter claim for declaration without consequential relief of possession is maintainable and accordingly the defendant has paid the court fee under Article 17(iii) of Schedule II of the Court Fees Act, and he is not liable to pay ad valorem court fee under Section 7 (iv) (c) of the Court Fees Act.

7. I have given thoughtful consideration to the rival contentions. Section 7 (iv) (c) of Court Fees Act, 1870 is reproduced as under:-

“7. Computation of fees payable in certain suits-The

amount of fee payable under this Act in the suits next

hereinafter mentioned shall be computed as follows:-

(iv) In suits- for a declaratory decree and consequential relief-(c) to obtain a declaratory decree or order, where consequential relief is prayed. according to the amount at which the relief sought is valued in the plaint or memorandum of appeal;

Article 17 (iii) of Schedule II of Court Fees Act is reproduced hereunder:- Number Proper fee

17. Plaint or memorandum of CS(OS) 2281/2013 Page 4 appeal in each of the following suits:-

(iii) to obtain a declaratory decree where no consequential relief is prayed.

8. It is apparent that the defendant in his counter claim has only sought declaration without consequential relief. He is already in possession of the suit property. For that purpose, his claim does not fall under Section 7 (iv)

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(c) of Court Fees Act. The Supreme Court in the case of Chhabi Dushadh and Anr vs. Bhuneshwar Pandey and Anr. reported in AIR 2004 Jhar 92, has discussed Section 34 of the Specific Relief Act dealing with the suits for declaration and held as under:- “Question of applicability was raised for the first time in the appeal before this Court. Section 34 of the Specific Relief Act runs thus:- “…….Section 34. Discretion of Court as to declaration of status or right – Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit, ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of the title, omits to do so……” In a suit under this Section the plaintiffs first must be a person entitled to any legal character or to any right as to any property and secondly the defendant must be a person denying or interested to deny the plaintiffs titled to such CS(OS) 2281/2013 Page 5 character or right and thirdly the declaration sued for must be declaration that the plaintiffs are entitled to a legal character or to a right to property and fourthly where the plaintiff is able to seek further relief than a mere declaration of title, he must seek such relief. If any of the first three conditions is not fulfilled the suit should be dismissed. If those three conditions are fulfilled but fourth is not, the Court shall not make the declaration sued for. The proviso to Section 34 aforesaid is imperative and makes it obligatory on every Court not be make any declaration in cases where the plaintiff being able to seek further relief omits to do so but objection to the maintainability of the suit on the ground that he does not seek consequential relief must be taken with promptitude. Here in this case the question of application of Section 34 of the said Act has been raised for the first time in the Second Appeal. It is the, settled law that if the plaintiff is out of possession of the suit land and only seeks to have his title declared, his suit for mere declaration will not lie without the consequential relief of recovery of possession. Thus a plaintiff out of possession suing for a declaration of title to land ought to pray for possession if the defendant is in possession but he is not obliged to do so if the defendant is not in possession or the plaintiff is in lawful possession of the suit land The plaintiff in possession of the property, when seeks a declaration of the title, the suit without a prayer for possession is maintainable.”

9. In the present case, since the defendant is already in possession of the suit property, his suit for declaration without consequential relief is therefore maintainable and he has rightly computed the court fee, his claim falls under Article 17(iii) of Schedule II of the Court Fees Act. CS(OS) 2281/2013 Page 6

10. This issue stands decided in favour of the defendant and against the plaintiff. Issue no. 5:Whether the counter claim filed by the defendant is barred by limitation?

11. It is urged by the plaintiff that the defendant has placed his knowledge to the existence of the gift deed upon the information in the notice of the plaintiff dated 29.04.2011, he however has not denied the averment of the plaintiff in the notice wherein the plaintiff has clearly stated that in December 2010, defendant was asked to vacate the premises. It is argued that the defendant was aware of existence of gift deed when in December 2010, he was asked to vacate the premises, he was told that the plaintiff was owner of suit property by virtue of gift deed. The counter claim of defendant is therefore barred by limitation as raised after expiry of three years.

12. The defendant placed his knowledge to the existence of a gift deed on receipt of the notice of the plaintiff dated 29.04.2011 and argues that it was in this notice that the plaintiff for the first time disclosed the existence of a gift deed and before that he had no knowledge of the existence of this document.

13. I have given due consideration to the rival contentions of the parties. CS(OS) 2281/2013 Page 7

14. While the plaintiff contends that the defendant came to know of the existence of the gift deed in December 2010 when he was asked to vacate the suit premises, the defendant has denied any such knowledge and reposed his knowledge to the existence of the gift deed only on the notice of the plaintiff dated 29.04.2011. The plaintiff, to substantiate her claim, brought to the notice of this court the averments of the said notice dated 29.04.2011 and argues that since the defendant has admitted the notice, he has admitted the facts therein.

15. The relevant portion of the notice is reproduced herein:- “That in or about 2nd fortnight of December 2010 on being requested by my client through her husband you assured her husband that you would quit the licence portion of the said premises to my client very soon….to my client.”

16. It is clear that the admission/denial of the documents in this case has been completed. During the admission/denial of the documents while the defendant has admitted the receipt of said notice, he has denied the contents of the notice. Also, it is apparent that in the notice dated 29.04.2011, the plaintiff has not stated that in December 2010, she had told the defendant about the gift deed. The plaintiff therefore is required to prove the fact that CS(OS) 2281/2013 Page 8 in December 2010 when the defendant was asked to vacate the suit premises, he had the knowledge of existence of the gift deed.

17. From the above, it is clear that the date of knowledge of existence of the gift deed is a disputed question of fact which can be decided only on the basis of evidences to be led by the parties.

18. This issue therefore be decided along with the main suit i.e. CS(OS) 2281/2013. CS(OS) 2281/2013 List the matter before the Joint Registrar on 10.01.2017 for recording of evidence.

DEEPA SHARMA (JUDGE) NOVEMBER 28, 2016 sapna

Manju Devi Poddar v. Hari Prakash Poddar

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