Gurjant Singh and Another Vs. Dharam Pal and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1070466
CourtPunjab and Haryana High Court
Decided OnNov-20-2012
AppellantGurjant Singh and Another
RespondentDharam Pal and Others
Excerpt:
cr no.4616 o”1. in the high court of punjab & haryana, chandigarh cr no.4616 of 2012(o&m) date of decision november 20, 2012 gurjant singh and another ....... petitioners versus dharam pal and others ........ respondents coram: hon'ble mr. justice k. kannan present:- mr. k. b. raheja, advocate for the petitioners. **** 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?. k. kannan, j (oral).1. the revision is at the instance of the defendant who is aggrieved by the manner of valuation of the court fee by the plaintiff. the defendant claims to be a purchaser of the property from the widow and children of one raj pal who sold the property on an assertion that they were the sole heirs of raj pal on the basis of a civil court decree against the general public that they were the owners. the mother of raj pal who was a heir at law filed a suit that she was entitled to 1/6th share in the property sold by the widow and children and that the sale in respect of the whole of the property was illegal and not binding on her. on such an assertion a fixed court fee had been paid. learned counsel refers me to a judgment of the supreme court in suhrid singh @ sardool singh cr no.4616 o”2. vs. randhir singh 2010 air (sc)2807 where a suit had been filed by a son impeaching alienation made by the father and fixed court fee had been paid under article 17(iii) of the second schedule of the court fees act,1970. the supreme court held that the valuation adopted by the court was not appropriate. i will not find any reason to apply this judgment since a sale of co-parcenary property by a father would be binding on the son unless the sale was not supported by necessity or family benefit. there would need to be prayer to set aside the sale in such circumstances to make out circumstances as to how the sale was not binding. in this case, the suit is by a mother who is not required to set aside the sale although there is a reference in the plaint that the sale would require to be cancelled/set aside. she is a class-i heir at law and the sale has been made without reference to her share. she is simply entitled to ignore the same and secure a joint possession in the manner that the law allows for. i find no error in the plaintiff adopting a fixed valuation.2. in any event, the issue of payment of court fee is essentially a matter between the court and a suitor. the defendant cannot non-suit the plaintiff on the inadequacy of court fee unless it impinges on the pecuniary jurisdiction or the maintainability of the suit itself. no such plea is brought by the defendant. i, therefore, do not find any reason to make an intervention under article 227 at the instance of the petitioner.3. learned counsel points out that there is no reference in the plaint as to what provision the plaintiff was invoking for payment of fixed court fee. it shall be left to the court to issue a cr no.4616 o”3. check-slip or any other means of eliciting the provision under which the court fee has been paid and if there is any deficiency, to require the plaintiff to pay the amount before the final conclusion of the suit or if, at any rate the plaintiff is successful before drawing up the decree.4. with these observations the revision petition is disposed of. (k. kannan) judge november 20, 2012 archana
Judgment:

CR No.4616 o”

1. IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CR No.4616 of 2012(O&M) Date of decision November 20, 2012 Gurjant Singh and another ....... Petitioners Versus Dharam Pal and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. K. B. Raheja, Advocate for the petitioners. **** 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?. K. Kannan, J (oral).

1. The revision is at the instance of the defendant who is aggrieved by the manner of valuation of the court fee by the plaintiff. The defendant claims to be a purchaser of the property from the widow and children of one Raj Pal who sold the property on an assertion that they were the sole heirs of Raj Pal on the basis of a civil Court decree against the general public that they were the owners. The mother of Raj Pal who was a heir at law filed a suit that she was entitled to 1/6th share in the property sold by the widow and children and that the sale in respect of the whole of the property was illegal and not binding on her. On such an assertion a fixed Court fee had been paid. Learned counsel refers me to a judgment of the Supreme Court in Suhrid Singh @ Sardool Singh CR No.4616 o”

2. Vs. Randhir Singh 2010 AIR (SC)2807 where a suit had been filed by a son impeaching alienation made by the father and fixed court fee had been paid under Article 17(iii) of the Second Schedule of the Court Fees Act,1970. The Supreme Court held that the valuation adopted by the Court was not appropriate. I will not find any reason to apply this judgment since a sale of co-parcenary property by a father would be binding on the son unless the sale was not supported by necessity or family benefit. There would need to be prayer to set aside the sale in such circumstances to make out circumstances as to how the sale was not binding. In this case, the suit is by a mother who is not required to set aside the sale although there is a reference in the plaint that the sale would require to be cancelled/set aside. She is a Class-I heir at law and the sale has been made without reference to her share. She is simply entitled to ignore the same and secure a joint possession in the manner that the law allows for. I find no error in the plaintiff adopting a fixed valuation.

2. In any event, the issue of payment of court fee is essentially a matter between the Court and a suitor. The defendant cannot non-suit the plaintiff on the inadequacy of court fee unless it impinges on the pecuniary jurisdiction or the maintainability of the suit itself. No such plea is brought by the defendant. I, therefore, do not find any reason to make an intervention under Article 227 at the instance of the petitioner.

3. Learned counsel points out that there is no reference in the plaint as to what provision the plaintiff was invoking for payment of fixed Court fee. It shall be left to the Court to issue a CR No.4616 o”

3. check-slip or any other means of eliciting the provision under which the Court fee has been paid and if there is any deficiency, to require the plaintiff to pay the amount before the final conclusion of the suit or if, at any rate the plaintiff is successful before drawing up the decree.

4. With these observations the revision petition is disposed of. (K. KANNAN) JUDGE November 20, 2012 archana