The Court, in fact, ought to have examined the plaint and on hearing the parties and, if necessary, even on taking evidence, taken a decision whether or not suit had been properly valued for the purpose of Court-fee and jurisdiction. This question otherwise is important in the facts and circumstances of the case. As contended by the learned counsel for the defendant, the plaintiff claims to have purchased the property by means of a deed of sale for a consideration of over Rs. 8 lacs. Though the market value of the suit property on the date of institution of the suit was much more than that, but the plaintiff could not have put an arbitrary valuation in the instant suit. By reading the entire plaint, what in reality the plaintiff has prayed is a decree for possession against the defendant. By a camouflage, it cannot be treated to be a suit for mere injunction. The plaint was required to be valued for the purpose of Court-fee and jurisdiction under Section 7(v) and not under Section 7(iv)(d) of the Court-Fees Act. The Court before which the suit was pending was a Court of limited pecuniary jurisdiction and not a Court of unlimited pecuniary jurisdiction. Even after transfer by virtue of the Supreme Court's order, the suit is pending in the Court of Senior Sub Judge, Solan, which is also a Court of limited pecuniary jurisdiction.
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Himachal Pradesh High Court
Dr. Om Prakash Rawal vs Mr. Justice Amrit Lal Bahri on 28 May, 1993
1. The defendant-petitioner has in his Civil Revision challenged the order passed on 30th Sept. 1992 by Mr. Inderjit Kaushik, Sub Judge 1st Class, Chandigarh. The Civil Revision was instituted in Punjab and Haryana High Court at Chandigarh, but it stood transferred to this court by virtue of an order passed by the Supreme Court on 1st Februray, 1993 in Transfer Petition (C) No. 623 and 624 of 1992 (Dr. Om Prakash Rawal v. Mr. Justice Amrit Lal Bahri).
2. In order to appreciate the grievances of the petitioner, as made out in this revision petition and the dispose of this Civil Revision, it will be necessary to give a few facts.
3. On 5th June, 1992 the plaintiff-respondent filed a suit in the Court of Senior Sub Judge, Chandigarh against the defendant-petitioner, seeking a decree for mandatory injunction directing the defendant to hand over the vacant possession of House No. 124, Sector I6A, Chandigarh and for recovery of Rs. 1,000/- as damages for use and occupation of the property at the rate of Rs. 250/- per day w.e.f. 1-6-1992 to 4-6-1992 as also a decree for future damages for use and occupation from the date of filing of the suit till the date of delivery of the possession.
4. The suit is founded on the allegations that one Bal Krishan Rawal purchased plot No. 19 in Street B, Sector 16A, Chandigarh, measuring 505.5 Sq. yards in auction held on 16th October, 1960. Conveyance deed was executed in his favour by the Estate Officer, Chandigarh on 30th July, 1964. The property now is known as House No. 124, Sector 16A, Chandigarh, which has been constructed by Mr. Bal Krishan Rawal, who was the owner of the said house. The plaintiff purchased the said building along with all its fixtures through registered deed of sale dated 6th February, 1992 from Bal Krishan Rawal, whose parents have also been residing therein. The defendant was also residing with his parents along with other members of his family. The defendant was merely a licensee under Bal Krishan Rawal and now after purchase of the property, he became licensee under the plaintiff, whose license was revoked by serving notice dated 13th May, 1992 and since the defendant failed to deliver possession he is liable to be commanded by decree of mandatory injunction to deliver possession to the plaintiff and also to pay damages for use and occupation.
5. The suit was assigned to Sub Judge 1st Class, Chandigarh, who on the same day, after obtaining the office report, ordered it to be registered and directed dasti summonses to be issued to the defendant for 15th June, 1992. The record reveals that the summonses issued to the defendant were not in accordance with . the provisions of the Code of Civil Procedure (hereinafter referred to as 'the Code'), namely, Rule 1 of Order V, but it was only an intimation of the date of hearing. On 15th June, 1992, the petitioner put in appearance through counsel. The case was adjuorned to 16th July, 1992 for filing written statement. On the adjourned date, an application was made by the defendant seeking production of documents, copy of which was supplied to the plaintiffs counsel and the case was posted for filing reply and for consideration for 4th August, 1992. After this order was passed, on the same day, photostat copy of the sale deed in plaintiffs favour was made available to the defendant. The case could not be taken up on 4th August, 1992 due to strike and it was adjourned to 26th August, 1992.
6. Before the next date, on 25th August, 1992, an application under Order 7 Rule 11 of the Code was moved by the defendant praying for rejection of the plaint, inter alia, on the ground that it does not disclose any cause of action, suit as framed is barred by law, suit for mandatory injunction is not legally maintainable, plaint is not in accordance with the provisions of Order 7 Rule 1 of the Code and it being virtually a suit for possession, the plaintiff had under valued the suit. On 26th August, 1992, copy of this application was supplied to the opposite party and the case was adjourned to 2nd September, 1992 for filing reply to this application as also for filing written statement subject to payment of Rs. 30/- as costs. It was made clear that it was the last chance for filing written statement. On the adjourned date, written statement as well as reply to the application under Order 7 Rule 1 of the Code was filed and on 8th September, 1992, replication was filed. The case was posted for 29th September, 1992 for recording the statement of parties before issues, as well as for admission and denial of the documents.
7. On 29th September, 1992, after admission and denial of documents was over, an application was made under Section 151 of the Code by the defenda praying for stay of the proceeding till such time, his application under Order 7 Rule 11 of the Code is decided. The defendant also placed on record the proposed issues, which according to him, arose on the pleadings of the parties.
8. At this stage, the substance of the defendant's written statement may be noticed. The defendant in his written statement, in addition to taking up of number of legal objections denied the plaintiffs claim that Bal Krishan Rawal was the owner of the house or that he was only a licensee under Bal Krishan Rawal. He alleged that the plot was purchased in open auction in the name of Bal Krishan Rawal, his younger brother, who was at that time at Agra and was dependant upon him. Mere execution of conveyance in favour of Bal Krishan Rawal does not confer any title upon him. The construction had been raised by the defendant with his exclusive funds and only a nominal loan was obtained from Chandigarh Administration, which had been repaid by the defendant. Since Bal Krishan Rawal was not the owner of the house, which had been constructed by him, he (Bal Krishan Rawal) was not competent to execute the registered sale deed in favour of the plaintiff. As a matter of fact, the defendant is the owner of the property. Plaintiff was aware of this fact that the defendant is the owner in possession of the suit property since the plaintiff has been on visiting terms with him. It was further alleged that no title vests in the plaintiff on the basis of the alleged deed of sale. In para 6 of the written statement, it has specifically been alleged that the plaintiff is not entitled to decree since the defendant has neither been a licensee under Bal Krishan Rawal, nor under the plaintiff. The Benami Transactions (Prohibition) Act, 1980 (hereinafter referred to as 'the Act') does not debar the defendant from taking up the plea that title in the property in fact vests in him and not in Bal Krishan Rawal. Bal Krishan Rawal was merely a Benamidar and a name lender and the Act has only prospective effect and not retrospective effect. It was further alleged that assuming that the Act has retrospective effect, in that case Bal Krishan Rawal had lost his title to the property because of the defendant's open, continuous, uninturrepted possession, in assertion of his right as owner, to his knowledge and to the knowledge of all concerned.
9. On 30th September, 1992, the impugned order was passed by the trial Court rejecting the defendant's application under Order 7 Rule 11 of the Code saying that the pleas taken by him in his application cannot be decided without framing issues and taking evidence. Simultaneously, the trial Court also framed the following issues:
1. Whether the defendant is licensee and his license stands revoked after the expiry of 15 days from the receipt of notice dated 13-5- 1992?
OPP.
2. If issue No. 1 is proved whether the plaintiff is entitled for mandatory injunction as prayed for?
OPP.
3. Whether the plaintiff is entitled to recover damages/mesne profits from the defendant if so at what rate?
OPP.
4. Whether the suit is not maintainable in the present form?
OPD.
5. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction?
OPD.
6. Whether the plaintiff has no cause of action to file the present suit against the defendant?
OPD.
7. Relief.
10. The trial Court did not frame any issue on the defendant's plea that Bal Krishan Rawal was only a Benamidar and in fact he was the real owner by observing that the defendant was precluded from taking up this plea in view of the express bar in Section 4 of the Act and for the reason that the provisions of the Act has retrospective effect for which reliance was placed upon Mithilesh Kumari v. Prem Behari Khare, AIR 1989 SC 1247. No issue was framed on the defendant's plea of his having acquired title to the property by adverse possession holding that the plea of adverse possession and that of Benami nature of property were totally inconsistent and contradictory, on which no issue can be framed.
11. I have heard the learned counsel for the parties and gone through the record.
12. The petitioner challenged this order passed on 30th September, 1992 by urging that his application under Order 7 Rule 11 of the Code ought to have been decided before proceeding to frame issues or in any case, at the time of framing issues, the plaint ought to have been rejected. It has further been contended that the issue of Court fee, which is linked with the question of jurisdiction and maintainability of the suit ought to have been ordered to be tried as a preliminary issue. Grievance has also been made that the trial Court acted with material irregularity in exercise of its jurisdiction in not framing proper issues. Issue on the plea of adverse possession as well as of Benami nature of property and on the plaintiff s objection that the nature of plea raised by the defendant was in fact a defence amounting to raise a plea of Benami and was prohibited by the Act ought to have been framed.
13. Learned counsel for the plaintiff has on the other hand urged for dismissing the civil revision on the ground that the plaint had been properly valued for the purpose of Court-fees and jurisdiction. The question of proper valuation of suit for the purposes of Court-fee and jurisdiction has to be decided on the allegations made in the plaint. It being a suit for mandatory injunction had correctly been valued under Section 7(iv)(d) of the Court-fees Act, since the plaintiff is at liberty to put any value for the relief claimed by him, the plea of Benami transaction is prohibited by the Act and no issue can be framed on a plea which is prohibited under law. Even the alternate plea is based upon the Benami transaction and the trial Court was right in not framing any issue thereupon.
14. First dealing with the question about the petitioner's contention that the plaint ought to have been rejected or in any case issue of Court-fee and jurisdiction ought to have been directed to be decided as a preliminary issue. Order 14 Rule 2 of the Code enjoins upon the Court a duty to pronounce judgment on all issues of law and fact. But this duty cast upon the Court is subject to limitation, which is provided for in Sub-rule (2) thereof, namely, where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on a issue of law only, it may try that issue first, if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Section 15 of the Code says that every suit shall be' instituted in the Court of the lowest grade competent to try it. Order 7, Rule 11 of the Code also casts a duty upon the Court to examine the plaint with respect to four matters enumerated in Clauses (a) to (d) therein and to determine whether the plaint should or should not be rejected or returned for amendment. One of the ground on which plaint can be rejected is that where relief claimed is undervalued and the plaintiff on being required by the Court to correct the valuation, within the time to be fixed by the" Court, fails to do so.
15. Before filing written statement, defendant moved an application praying for rejection, the plaint on the ground that on the face of it, the relief amounts to praying a decree for possession. As such, the suit had been under-valued for the purposes of Court- fee and jurisdiction. In other words, what was meant by taking of this plea was that the plaintiff was bound to value ihe suit for the purposes of Court-fee at the market value of the suit property and also lo value the suit for jurisdiction at such value, which had not been done, accordingly the plaint was liable to be rejected. Instead of projecting its mind to the plea which the defendant had taken in the application, the trial Court in a mechnical manner proceeded to reject the defendant's application by simply observing that since the pleas raised in the application require taking of evidence, the same deserve to be rejected.
16. The Court, in fact, ought to have examined the plaint and on hearing the parties and, if necessary, even on taking evidence, taken a decision whether or not suit had been properly valued for the purpose of Court-fee and jurisdiction. This question otherwise is important in the facts and circumstances of the case. As contended by the learned counsel for the defendant, the plaintiff claims to have purchased the property by means of a deed of sale for a consideration of over Rs. 8 lacs. Though the market value of the suit property on the date of institution of the suit was much more than that, but the plaintiff could not have put an arbitrary valuation in the instant suit. By reading the entire plaint, what in reality the plaintiff has prayed is a decree for possession against the defendant. By a camouflage, it cannot be treated to be a suit for mere injunction. The plaint was required to be valued for the purpose of Court-fee and jurisdiction under Section 7(v) and not under Section 7(iv)(d) of the Court-Fees Act. The Court before which the suit was pending was a Court of limited pecuniary jurisdiction and not a Court of unlimited pecuniary jurisdiction. Even after transfer by virtue of the Supreme Court's order, the suit is pending in the Court of Senior Sub Judge, Solan, which is also a Court of limited pecuniary jurisdiction.
17. The contention of the learned counsel for the defendant to some extent has some force therein. Questions proposed are no more res-integra in view of a recent judgment of the apex Court in Sujir Keshav Nayak v. Sujir Ganesh Nayak, (1992) 1 SCC 731: (AIR 1992 SC 1526). The Court after noticing the earlier decisions as also the discretion of a plaintiff in putting his own valuation to the suit, considered the defendant's right to raise objection as also the Courts duty in examining the plaint and ruled that at page 1529 (of AIR):
"(1) Where the question of Court-fee is linked with jurisdiction a defendant has a right to raise objection and the Court should decide it as a preliminary issue.
(2) But in those cases where the suit is filed in Court of unlimited jurisdiction the valuation disclosed by the plaintiff or payment of amount of Court-fee on relief claimed in plaint or memorandum of appeal should be taken as correct.
(3) This does not preclude the Court even in suits filed in Courts of unlimited jurisdiction from examining if the valuation, on averments in plaint, is arbitrary."
18. Since the question raised by the defendant that virtually the plaint presented by the plaintiff in fact makes a prayer for delivery of possession, he ought to have valued the relief prayed, for the purpose of Court-fee under Section 7(v) of the Court-fee Act at the market value of the property and the same would be the value of suit for the purpose of jurisdiction under the Suits Valua-tion Act, the question raised is thus directly linked with the pecuniary jurisdiction of the Court. The suit is not pending in the Court of unlimited pecuniary jurisdiction. This issue of Court-fee and jurisdiction, in view of the principles laid down in Sujir Keshav Nayak's case (supra), pught to have been taken up for trial as a preliminary issue.
19. The next question is about the plea of Benami nature as also of the adverse possession. Sub-section (2) of Section 4 of the Act says that no defence, based on any right, in respect of any property, held Benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit', claim or action by or on behalf of a person claiming to be the real owner of such property. In view of the ratio of the judgment in Mithilesh Kumari's case (supra), the act has retrospective operation. What can be noticed from the defence taken by the defendant is that the plot in fact was purchased by him in the name of his brother Bal Krishan Rawal. In other words, that the plot was-purchased Benami. Thus, this plea with respect to the purchase of plot being a Benami transaction being prohibited under law cannot be put to an issue. This Court in Smt. Nirmala Devi v. Shri Karam Chand Civil Revision No. 45 of 1992 decided on 1-5-1992 held that:
"............The plea which is sought to be raised, namely, that it was a Benami transaction in the name of the defendant is clearly prohibited by the Benami Transaction (Prohibition) Act, 1988 (Act No. 45 of 1988). May be that it is an additional approach for getting the same relief but no amendment can be allowed having the effect of allowing an additional plea to be raised which is prohibited by law. As such, it is not permissible for the plaintiff to take up such a plea which is prohibited by virtue of Section 4 of the said Act."
20. The question raised is not of the plot only, but also of the building standing thereupon. It is the plaintiff's case that the building was constructed by Bal Krishan Rawal whereas, the defendant's case is that the building was constructed exclusively by him with his own funds. The plaintiffs case is that the defendant's brother Bal Krishan was the owner of the house, which fact is not admitted by the defendant. At the time of admission and denial of the documents, sale deed in favour of the plaintiff has not been admitted by the defendant. The execution of the same, as also its validity, has been disputed. It was denied that Bal Krishan Rawal was the owner of the house or that any valid title has been acquired by the plaintiff in the property. The suit of the plaintiff is founded on the ground that he has acquired a valid title to the property, In such circumstances, it would be necessary for the plaintiff to prove all the facts which go to constitute the right which he seeks to enforce. Section 101 of the Evidence Act enjoins that whoever desires any Court to give judgment as to any legal right or liability, dependant on the existence of facts, which he asserts, must prove that those facts exist. Now the plaintiff has prayed for a judgment that the defendant be commanded to deliver back possession to him since the defendant has become licensee under him because of purchase of the property by sale from its owner. Neither it is admitted by the defendant, nor there was any material on record to show that the vendor was the owner of the house or the defendant a licensee under the vendor or the plaintiff. It is for the plaintiff to prove the existence of these facts, which he asserts. The general rule enacted regulating the burden of proof is embodied in Section 102 of the Evidence Act, which says that the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. Applying this rule also, in case no evidence is led by the plaintiff to prove that the house was constructed by the Vendor or that the defendant was allowed the use thereof a licensee by him, it is not at all possible to return a finding in plaintiff's favour that the defendant has become licensee under him or he has acquired a title to the property. The burden of proof is required to be placed at the beginning of the trial by the state of pleadings and it is a settled proposition of law that it remains unchanged throughout the trial. But after having discharged the initial onus of proving a case, which is always on the plaintiff, the onus might stand discharged and shift on the defendant to rebut the same. The rule of evidence enshrined in S. 101 of the Evidence Act is based on the well known maxim ei incumbit probatio, qui dicit, non qui negate, which means the burden of proof is on the party who asserts, not on him who denies.
21. Consequently, it was necessary for the trial Court to have framed a. .sue about the plaintiffs ownership or in other words at least to frame an issue of the ownership of Bal Krishan Rawal of the house. It is necessary, for a right decision of a case that appropriate issues are framed and tried. The duty to frame appropriate issues is cast by virtue of Rule 1 of Order 14 of the Code on the Court. Issues are to be framed in respect of only those facts, which are alleged by one party and denied or not admitted by other party. They must be confined to material facts i.e. the points on which the right decision of the case depends. Though the duty to frame issues is on the Court, the responsibility of framing them is also required to be shared by it with the counsel appearing for the either party. The defendant, in fact, had by placing on record the proposed issues pointed out that such an issue does arise out of the pleadings of the parties, namely, whether on the basis of sale deed, plaintiff can maintain the suit for mandatory injunction or whether the document of sale confers any title on him or whether Bal Krishan Rawal was competent to confer a valid title on the plaintiff. Issues already framed, as quoted above, cannot be said to be comprehensive enough to include therein the issue as to whether the plaintiff has acquired title to the property or whether the plaintiff is the owner of the suit property. Neither the original sale deed was produced on record at the time when plaint was presented, nor it was before the Court when issues were framed.
22. The plea of adverse possession, as noticed by the trial Court cannot be said to be inconsistent or contradictory plea to the other pleas raised by the defendant. What the defendant has pleaded in the written statement is that in case, for any reason whatsoever, Bal Krishan Rawal is held to be the owner of the house, his title stood extinguished due to the defendant's holding it adversely by open, uninturrepted, continuous possession in the assertion of his right as an owner, for the last more than 12 years before the date of the alleged purchase by the plaintiff, to the knowledge of all. The Code does not prohibit inconsistent pleadings and there is nothing which prevents either party from setting up two or more inconsistent sets of material facts and claim reliefs thereunder in the alternative. This applies equally to the plaintiff as also to the defendant. The plaintiff may rely upon several different rights alternatively though they may be inconsistent. Defendant may also raise by his defence as many distinct and separate and, therefore, inconsistent defences as he may think proper. For this proposition, reference may be made to the judgment in Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177, wherein it was held (at page 179):
"........it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. ........."
23. In view of the aforementioned observations, the order impugned deserves to be set aside to the extent aforementioned by resetting the issues as under:
1. Whether the plaintiff is the owner of the suit property?
...OPP.
2. Whether the defendant was a licensee and his licence stood revoked on the expiry of the period of notice dated 13-5-1992 ?
...OPP.
3. If issue No. 2 is held in affirmative, whether the plaintiff is entitled for mandatory injunction, as alleged ?
...OPP.
4. Whether the plaintiff is entitled to re cover damages/ mesne profits from the defen dant ? If so, at what rate and from which date?
...OPP.
5. Whether the suil is not maintainable in the present form?
...OPD.
6. Whether the suit is not properly valued for the purpose of Court-fee and jurisdiction ?
...OPD.
7. Whether the plaintiff has no cause of action?
...OPD.
8. Whether the defendant has become owner of the suit property by adverse pos-session, as alleged?
...OPD.
9. Relief.
24. No other point was urged or agitated.
25. The revision petition accordingly is allowed leaving the parties to bear their respective costs. The parties are directed to appear before the Court of Senior Sub Judge, Solan on 22nd June, 1993. The trial Court shall proceed to dispose of the suit expe-ditiously, in the light of the observations made above on the aforementioned issues only. Before proceeding to try the other issues on merit, the trial Court shall try issue No. 6 of Court-fee and jurisdiction as a preliminary issue, in accordance with law, for which purpose, in case the parties so like shall be afforded an opportunity to lead evidence on this issue.
26. Be it stated that the observations made herein, while deciding Civil Revision, shall not prejudice the merits of the respective claims of the parties and shall also not influence the fair trial of the suit.
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