CR No.

1732 of 2016 1

HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT

CHANDIGARH

CR No.1732 of 2016
Date of decision:31.7.2017
Ashok Kumar Mittal

...Petitioner

Versus

Sat Kamal Pathak and others

...Respondents

CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

Present: Mr.A.K.Jain, Advocate for the petitioner.

Mr.Abhilaksh Grover, Advocate.
Mr. Manoj Kumar Sangwan, DAG, Haryana.

RAMESHWAR SINGH MALIK, J. (Oral)

Instant civil revision petition, filed under Article 227 of the

Constitution of India, at the hands of plaintiff, is directed against the order

dated 5.2.2016 passed by the learned trial court, whereby an application

moved by defendants No.1 and 2 under Order 7 Rule 11 of the Code of

Civil Procedure, for rejection of the plaint for want of affixing sufficient

court fee, was allowed, directing the plaintiff to make good the deficiency of

court fee.

Notice of motion was issued and operation of the impugned

order was stayed.

Heard learned counsel for the parties.

It is a matter of record that plaintiff-petitioner filed a suit for

recovery of damages. Prayer clause of the plaint (Annexure P-1) at page 24

of the paper-book, reads as under:-

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It is, therefore, prayed that a decree may kindly be

passed in favour of the plaintiff and against the defendants
with costs for recovery of damages to the tune of
Rs.50,00,000/- for malicious prosecution, wrongful
confinement, cruelty physical and mental, loss of business and
health of self and family members, loss of reputation and
defamation.

Defendants No.1 and 2 filed their contesting written statement

(Annexure P-2) raising more than one preliminary objections. Along with

written statement, defendants No.1 and 2 also filed an application under

Order 7 Rule 11 CPC, vide Annexure P-3, to which reply was filed by the

plaintiff, vide Annexure P-4. It was this application moved on behalf of

defendants No.1 and 2, wherein the learned trial court directed the plaintiff

to make good the deficiency of the court fee.

Owing to the nature of relief claimed by the plaintiff-petitioner,

it would be possible by the learned trial court to arrive at a judicious

conclusion, only after appreciation of the evidence to be produced by both

the parties, as to for how much amount the plaintiff would be entitled on

account of damages caused to him, at the hands of defendants, for malicious

prosecution, wrongful confinement, physical and mental cruelty, loss of

business and health of plaintiff as well as his family members and loss of

reputation and defamation.

At this point of time, it cannot be said by any stretch of

imagination that the petitioner would be entitled for the above-said amount

claimed by him on account of damages. It is so said because the plaintiff

will have to prove his pleaded case, by leading cogent and convincing

evidence so as to enable the learned trial court to arrive at a just conclusion.

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Having said that, this Court feels no hesitation to conclude that the learned

trial court misdirected itself, while passing the impugned order and the same

cannot be sustained.

It goes without saying that at the time of deciding the suit, in

case the learned trial court comes to a conclusion that the plaintiff is entitled

for a particular amount, the learned trial court would do well by directing

the plaintiff to pay the remaining court fee to the extent it would be found

deficient and the plaintiff shall be bound to pay the court fee accordingly.

Unless the matter is adjudicated upon by the learned trial court after proper

appreciation of the evidence to be brought on record by both the parties,

plaintiff-petitioner cannot be directed to pay ad valorem court fee on the

total amount claimed by him on account of damages. It is so said because

the principle of evaluation of suit, applied in the simple suit for recovery of

liquidated claim, cannot be made applicable to a suit for damages for

malicious prosecution, for the purpose of payment of court fee. At this

stage, only a tentative valuation can be made and such tentative violation

should be accepted by the learned court.

No doubt, there cannot be an exhaustive list of peculiar fact

situations, because it would depend on different peculiar fact situations

arising from case to case. There cannot be any straight jacket formula in

this regard. Each case is to be decided as per its own facts and

circumstances. However, so far as the case in hand is concerned, a bare

reading of the impugned order would show that the learned trial court acted

without jurisdiction, while directing the petitioner-plaintiff to pay

ad valorem court fee, which was not warranted at this stage. Any such

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appropriate direction could have been issued by the learned trial court only

at the time of deciding the suit. Under these circumstances noticed

hereinabove, the impugned order has been found suffering from patent

illegality and cannot be sustained, for this reason also.

The view taken by this Court also finds support from the

following judgments of the Hon'ble Supreme Court as well as this Court in

M/s Commercial Aviation and Travel Company Vs. Vimla Pannalal,

(1988) 3 SCC 423, Subhash Chander Goel Vs. Harvinder Sagar, 2003

AIR (Punjab) 248, State of Punjab and others Vs. Jagdip Singh

Chowan, 2005(1) RCR (Civil) 54, Saleem Vs. Usman Gani and another,

2015 (2) PLR 39, Tarwinder Kumar Bedi Vs. Jit Parkash, 2015 (2) PLR

92, S.Ajit Singh Kohar Vs. Shashi Kant, 2015 (1) Law Herald 767,

Jaspal singh and another Vs. Gurbinder Singh, 2015 (3) PLR 97 and

Bharpoor Singh and another Vs. Lachman Singh, 2017 (1) Law Herald

609.

So far as the judgments of the Hon'ble Supreme Court as well

as this Court, relied upon by the learned counsel for the respondents in Shiv

Kumar Sharma Vs. Santosh Kumari, 2007(4) RCR (Civil) 515 (SC),

Hem Raj Vs. Harchet Singh, 1993 CivCC 48, and Jatinder Nath Sharma

and another Vs. Vijay Gupta and another, 2006(4) RCR (Civil) 539,

are concerned, there is no dispute about the observations made therein.

However, on close perusal of the cited judgments, none of them has been

found to be of any help to the respondents, being distinguishable on facts. It

is the settled principle of law that peculiar facts of each case are to be

examined, considered and appreciated first, before applying any codified or

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judgemade law thereto. Sometimes, difference of even one circumstance or

additional fact can make the world of difference, as held by the Hon'ble

Supreme Court in Padmasundara Rao (Dead) Vs. State of Tamil Nadu

and others, 2002 (3) SCC 533, Union of India Vs. Amrit Lal Manchanda

and others, 2004 (3) SCC 75, State of Orissa Vs. Md. Illiyas, 2006 (1)

SCC 275 and State of Rajasthan VS. Ganeshi Lal, 2008 (2) SCC 533.

Identical issue also fell for consideration before the Hon'ble

Supreme Court in Vimla Pannalal's case (supra). The relevant

observations made by the Hon'ble Supreme Court in paras 9 and 12 of its

judgment in Vimla Pannalal's case (supra), which can be gainfully

followed in the present case, read as under:-

In this connection, we may refer to the provision of

order VII, Rule II(b) of the Code of Civil Procedure, which
provides, inter alia, that the plaint shall be rejected where the
relief claimed is undervalued and the plaintiff, on being
required by the Court to correct the valuation within a time to
be fixed by the Court, fails to do so. It is manifestly clear from
the provision of order VII, Rule II(b) that a Court has to come
to a finding that the relief claimed has been undervalued,
which necessarily means that the Court is able to decide and
specify proper and correct valuation of the relief and, after
determination of the correct value of the relief, requires the
plaintiff to correct his valuation within a time to be fixed by the
Court. If the plaintiff does not correct the valuation within the
time allowed, the plaint is liable to be rejected. The question is
whether in a suit for accounts simpliciter, the Court can come
to a finding as to the proper and correct value of the relief
until the final determination is made. In our opinion, ordinarily
it is not possible for the Court at a preliminary stage to
determining the value of the relief in a suit for accounts

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implicit. If the Court is itself unable to say what the correct

valuation of the relief is, it cannot require the plaintiff to
correct the valuation that has been made by him. Indeed, in a
suit for accounts it is also difficult for the Court to come to a
finding even as to the approximate correct valuation of the
relief. In such a case, the Court has no other alternative than
to accept plaintiffs valuation tentatively.
XXX XXX XXX XXX
In the above decision, this Court took the view that the
conversion of the plaintiffs undivided share in the joint family
property into his separate share cannot be easily valued in
terms of rupees with any precision or definiteness. It is true
that the Court did not consider whether the plaintiff had been
given an absolute right or option to place any valuation
whatever on his relief under the provision of section 7(iv) of
the Court Fees Act, but the difficulty that would be felt by the
Court in exercising its power under order VII, Rule 11(b) of the
Code of Civil Procedure is that if it is unable to determine the
correct value of the relief, it cannot direct the plaintiff to
correct the valuation. Order VII, Rule 11(b) contemplates
correct valuation and not approximate correct valuation and
such correct valuation of the relief has to be determined by the
Court. If the Court cannot determine the correct valuation of
the relief claimed, it cannot require the plaintiff to correct the
valuation and, consequently, order VII, Rule 11(b) will not be
applicable.

The view taken in the above-said judgments has been reiterated

time and again by this Court in the later judgments including in Manpreet

Singh Vs. Gurmail Singh and others, 2016 (3) PLR 751 and

Dr.B.L.Kapoor Memorial Singh V. Balbir Aggarwal, 2015 SCC Online

P&H 1790.

Coming to the facts of the case in hand and respectfully

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following the law laid down by the Hon'ble Supreme Court as well as by

this Court in the cases referred to hereinabove, it is unhesitatingly held that

the learned trial court fell in serious error of law, while passing the

impugned order and the same cannot be sustained. As on date, even the

learned trial court was not able to decide and specify proper and correct

valuation for the relief claimed by the plaintiff.

Unless the learned court was able to determine the correct

valuation of relief claimed by the plaintiff, there was no scope for the

learned trial court to direct the plaintiff to pay the ad valorem court fee. It

would have been possible only after the learned trial court would have

recorded appropriate findings after appreciation of the evidence and

accordingly arrive at a final determination as to for what specified amount

the plaintiff would be entitled. Only thereafter plaintiff could have been

directed to pay the deficient court fee accordingly. In this view of the

matter, the impugned order, being an order without jurisdiction, cannot be

sustained.

During the course of hearing, learned counsel for respondents

could not raise any meaningful arguments in support of the impugned order

and rightly so, it being a matter of record, because no such argument was

available to them. In fact, the impugned order has been found suffering

from a patent illegality, as the same is running counter to the undisputed

facts of the case because of which the impugned order is liable to be set

aside, for this reason also.

No other argument was raised.

Considering the peculiar facts and circumstances of the case

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noted above, coupled with the reasons aforementioned, this Court is of the

considered view that since the impugned order has been found suffering

from patent illegality, it cannot be sustained. Accordingly, the impugned

order dated 5.2.2016 is hereby set aside.

Resultantly, with the above-said observations made, the civil

revision petition stands allowed, however, with no order as to costs.

31.7.2017 (RAMESHWAR SINGH MALIK)

mks JUDGE

Whether Speaking/reasoned : Yes/No

Whether Reportable : Yes/No

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