Case Note & Summary
The petitioners, who are plaintiffs in a civil suit, challenged a common order dated 12.11.2013 passed by the trial Court below Exh. Nos. 66, 80 and 81. The trial court had directed the plaintiffs to evaluate the subject matter of the suit as per market value of the properties covered by two Wills dated 07.07.1983 and 21.01.1985, and also to add all legal heirs of Gangaramsingh Mulsingh Bisen and beneficiaries of the said three Wills as parties to the suit. The suit in question is a simplicitor suit for declaration that the plaintiffs are the lawful owners of the suit property by virtue of a Will dated 07.07.1983, and that the alleged Will dated 21.01.1985 is bogus, fraudulent and forged. The suit also seeks a permanent injunction restraining the defendants from interfering with the plaintiffs' possession and from creating any third party interest. The plaintiffs are in possession of the suit property. The trial court, while deciding applications under Order 7 Rule 11 CPC, passed the impugned order. The High Court held that the trial court erred in directing the plaintiffs to pay court fee on the market value of the property without first determining the question of possession. Under Section 6(iv)(j) of the Bombay Court Fees Act, 1959, in a suit for declaration with consequential injunction, if the plaintiff is in possession, the court fee is fixed and not ad valorem. The court also held that the direction to implead all legal heirs and beneficiaries was premature and beyond the scope of Order 7 Rule 11 CPC. The High Court allowed the writ petition, set aside the impugned order, and directed the trial court to decide the applications afresh in accordance with law, after hearing the parties.
Headnote
A) Court Fees - Declaratory Suit with Injunction - Section 6(iv)(j) Bombay Court Fees Act, 1959 - In a simplicitor suit for declaration of title and permanent injunction without claiming possession, the court fee is payable on the market value of the property only if the plaintiff is not in possession. If the plaintiff is in possession, the court fee is fixed under Section 6(iv)(j) and not ad valorem. The trial court erred in directing the plaintiff to pay court fee on market value without determining the question of possession. (Paras 5-7) B) Impleadment - Order 1 Rule 10 CPC - The trial court cannot direct the plaintiff to implead all legal heirs and beneficiaries of the wills at the stage of deciding applications under Order 7 Rule 11 CPC. The question of impleadment is to be decided after issues are framed and evidence is led. The direction to implead all legal heirs and beneficiaries was premature and set aside. (Paras 8-9) C) Civil Procedure - Order 7 Rule 11 CPC - The trial court while deciding applications for rejection of plaint or for court fee cannot go into the merits of the case or direct impleadment of parties. The only question at that stage is whether the plaint discloses a cause of action and whether the court fee paid is proper. (Para 8)
Issue of Consideration
Whether the trial court was correct in directing the plaintiff to evaluate the suit property at market value for court fee purposes and to implead all legal heirs and beneficiaries of the wills at the stage of deciding applications under Order 7 Rule 11 CPC?
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 12.11.2013, and directed the trial court to decide the applications afresh in accordance with law, after hearing the parties.
Law Points
- Court fee in declaratory suit with injunction depends on possession
- Section 6(iv)(j) Bombay Court Fees Act
- 1959
- Impleadment not to be decided at court fee stage
- Order 1 Rule 10 CPC
