ALLAHBELLI BHAREKHAN Vs. KHATOON BI ABDUL RAUF

JUDGEMENT

(1.) Being aggrieved by the order dated 01/10/2010 passed by XVIII Civil Judge, Class-II, Indore in civil suit No. 136-A/2010 whereby application filed by the respondent No. 2 under Order VII, Rule 11 CPC was allowed and the petitioner was directed to correct the valuation and pay the proper court fee, present petition has been filed. Short facts of the case are that a suit for declaration and permanent injunction was filed by the petitioner alleging that the petitioner is having 7/8 share in the suit property while respondent No. 1 is having 1/8 share. The suit was valued as Rs. 1,120/- and the court-fee of Rs. 500/-was paid for declaration and Rs. 120/- was paid for permanent injunction totalling Rs. 620/-. An application was filed by the respondent No. 2 wherein it was alleged that suit has not been properly valued and improper court-fee has been paid. It was prayed that petitioner be directed to value the suit correctly and pay the court-fee appropriately. After hearing the parties learned Court below allowed the application and directed the petitioner to value the suit on the basis of market value and further directed that in case suit is not properly valued as per market rate then the court may consider to appoint Commissioner to ascertain the market value at the cost of petitioner against which the present petition has been filed.

(2.) Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set-aside. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner be allowed and the impugned order passed by the learned Court below be set-aside.

(3.) From perusal of record, it appears that in the title of the suit it is mentioned that the valuation of suit is Rs. 1,120/- but nothing has been stated in the plaint that how the petitioner is valuing the suit as Rs. 1,120/-. Plaint is required to value the suit by mentioning the facts in that regard in a separate para. Petitioner is also required to mention the court-fee which is missing in the plaint. In the circumstance learned Court below committed no error in directing the petitioner in that regard. Learned Court below has also observed that the relief of permanent injunction prayed by petitioner is consequential relief. It is true that the petitioner is free to value the suit as per the subject-matter but at the same time it is required to be just and proper. For the purpose of valuation and court-fee also the suit is required to be valued as per provisions of Suits Valuation Act. All theses observations has been made by the learned Court below in this regard which requires no interference. However, learned Court below has also directed that if the valuation of suit property is found not correct, then, the Court may consider for appointment of Commissioner for ascertainment of market value of the suit property. This type of observation is unwarranted. The Court cannot pre-suppose that the valuation which shall be made by the petitioner will not be in accordance with market value. The law also does not lay down that suit is required to be valued as per market value of the subject-matter. In the facts and circumstances of the case, petition filed by the petitioner is disposed of with a short direction that the petitioner shall value the suit as directed by the learned Court below and shall also move an appropriate application for recalling of that part of the order whereby the learned Court below has observed that if the valuation of the suit has not made as per market value, then, the Court may consider for appointment of Commissioner. If such an application is filed along with an application for excluding the time spent by the petitioner in prosecuting the writ petition before this Court bonafidely, then, after giving an opportunity of hearing to the respondents the learned Court below shall decide the same on merits in accordance with law. With the aforesaid observations, petition stands disposed of.