OMP/186/2018 of MOHINDER KUMAR Vs RAMESH KUMAR on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

OMP No. 440 of 2018 & OMPNo. 186 of 2018 in Civil Suit No. 2 of 2009.

Decided on : 31.12.2018

------------------------------------------------------------------------------------Mohinder Kumar Sood …..Plaintiff.

Versus

Ramesh Kumar Sood and others ….Defendants.

Coram:

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?[1] Yes.

OMP No. 440 of 2018

For the applicant:Mr. Ashok Sood, Advocate.

For the respondents/non-applicants:Mr. Prince Chauhan, Advocate vicecounsel for non-applicant/defendantNo.2.

Mr. Aman Sood, Advocate, for non-applicant/defendant No.3.

Mr. Ravinder Singh Jaswal,Advocate,fornon-applicant/defendant No.4.

Mr. Anil Sharma, Advocate, vicecounsel, for non-applicant/defendantNo.5.

1Whether reporters of the local papers may be allowed to see the judgment?

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OMP No. 186 of 2018

For the applicant:

Mr. Ravinder Singh Jaswal, Advocate.

For the respondents/non-applicants:

Mr. Ashok Sood, Advocate, for non-applicant/plaintiff.

Mr. Prince Chauhan, Advocate vicecounsel for non-applicant/defendantNo.2.

Mr. Aman Sood, Advocate, for non-applicant/defendant No.3.

Mr. Anil Sharma, Advocate, vicecounsel, for non-applicant/defendantNo.5.

Sureshwar Thakur, J (oral)

Through OMP No. 440 of 2018, the plaintiff/applicant seeks leave of the Court, to, incorporate in paragraph 12, of, the initially instituted plaint, the hereinafter extractedamendments:- “That the value of the suit for the purpose ofCourt fee and jurisdiction newly added jointproperties detailed in para 3(a) and 3 (b) of amendedplaint is assessed at Rs. 45,00,000/- and value of theshare of plaintiff comes to 5,00,000/- thus the total …3…

value of all properties sought to be partitioned nowcomes to Rs. 1,17,00,000/- (one Crore and Seventeenlaks) i.e Rs.72,00,000/- + Rs. 45,00,000=1,17,00,000/-and total value of the share of the plaintiff on allproperties sought to be partitioned is assessed at Rs.19,00,000/- i.e Rs. 14,00,000+Rs.500000=19,00,000/-for seeking relief of partition by metes and boundsand fixed Court fee of Rs. 98/- is payable as theplaintiff is in physical possession of one semi builtshop in joint suit property, therefore, the Court feeof Rs. 98/- is affixed on the plaint for the said reliefand for the second relief of rendition of accounts andseeking decree for recovery of amount to which theplaintiff is found tobe entitled on rendition ofaccounts of income joint properties from defendantsis tentatively assessed to Rs.2,00,000/- of newlyadded properties. Thus total value of the share ofthe plaintiff in the income of the suit joint propertiesis tentatively assessed to Rs. 17,00,000/- i.e Rs.15,00,000+Rs. 200000=Rs. 17,00,000/- and court feeon amount of Rs. 15,00,000/- is already affixed onoriginal plaint and on added amount of Rs.2,00,000/- shall be affixed when this application isallowed by this Hon’ble Court and any additionalcourt fee if any is found to payable will be paid bythe plaintiff on the actual amount found to bepayable to the plaintiff on rendition of accounts. Thevalue of suit for the relief of injunction is fixedRs.130/- and court fee has been affixed on the plaint.It is clarified that the total value of the suit for the …4…

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purpose of pecuniary jurisdiction in accordance withlaw and Punjab High Court Rules and order asapplicable to this Hon’ble Court comes to1,17,00,000/- (one crore seventeen laks) being totalvalue of all joint properties sought to be partitionedand value of share of the plaintiff in income of jointproperties to which he is likely to found entitled onrendition of accounts comes to Rs. 17,00,000/- byadding the same to value of joint properties value ofsuit comes for the purpose of pecuniary jurisdictioncomes to Rs. 1,34,00,000/- (i.e Rs.1,17,00,000+ Rs.17,00,000=Rs. 1,34,00,000/-) Even value of the shareof the plaintiff in joint properties and share ofplaintiff in income pecuniary value comes to Rs.26,00,000/- (i.e Rs. 19,00,000+Rs. 17,00,000=Rs.36,00,000/-).”

2. The defendant No.4/applicant, also through OMP No.

186 of 2018, cast under the provisions of Order 7 Rule 10 and 11of the C.P.C, seeks an order being made by this Court, for, theplaint being returned to the plaintiff, for its, being filed beforethe Civil Court concerned, hence, holding the requisite pecuniaryjurisdiction, for, trying the civil suit.

3. Both the afore OMPs are hence amenable for acommon verdict being rendered thereon, hence, they are …5…

disposed, of, under a common verdict. Upon a reading ofparagraph 12 of the initially instituted plaint, it is manifest,that, some of the undivided suit properties rather remainingomitted, to be pleaded therein, and, through OMP No. 440 of2018 the plaintiff/applicant seeks leave, to, add the aptproperties, detailed therein, in, paragraph 12, of, the initiallyinstituted plaint. Even though, the afore espoused relief isgrantable to th plaintiff/applicant, given the adding of all theundivided suit properties, inter-se, the contesting litigants’rather being a dire legal necessity, (i) given all being the subjectmatter of the extant lis, and, also, for obviating, the attractionthereon, the mandate of Order 2 Rule 2 of the CPC, againstinstitution of a subsequent suit, by the plaintiff, for including inthe apposite plaint, some of the properties, as remained omittedto be incorporated, in the initially instituted plaint, (ii) yet thelearned counsel for defendant No.4, has contended with muchvigor before this Court, that, even if the valuation of the sharesof the plaintiff/applicant, in the undivided suit properties iscomputed, thereupon also this Court, not, holding the requisite …6…

pecuniary jurisdiction to try the suit. Consequently, he insiststhat the prayer made in OMP No. 186 of 2018, for an order beingpronounced, for return of plaint, being rather allowed by thisCourt.

4. The submission addressed before this Court, by thelearned counsel for defendant No. 4, is, rudderless (i) given forthe purpose, of, valuation, of, the suit for assumption ofpecuniary jurisdiction, by the Civil Court, the requisiteparameter for making an apt determination, being, the onecontained in Volume 1 Chapter 3, Part C of Punjab High CourtRules and Orders, the relevant clause 8 whereof, is, extractedhereinafter, (ii) wherein it is categorically specified, that, in suitsof partition vis-a-vis undivided properties, the apt mode fordetermining or making valuation(s), vis-a-vis, the the pecuniaryjurisdiction of the Civil Court concerned, being the oneappertaining, to, the entire valuation of the entire undividedproperty, and, only obviously for affixation of Court fee, the,value of the share therein of the applicant rather constitutingthe apt parameter.

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“Suits for partition of Property.

Court-fee- (a) As determined by the Court-fees Act, 1870. Value-(b) For the Purposes of the Suits Valuation Act, 1887and the Punjab Courts Act, 1918, the value of the wholeproperty as determined by Sections 3,8 and 9 of the SuitsValuation At, 1887.”

5. Bearing in mind, the afore parameter(s), and,

applying, it, vis-a-vis the apt clause, thereupon the afore relief asespoused, vis-a-vis, the amendment being, made, in paragraph12 of the OMP No. 440 of 2018, is, accepted. Consequently, OMPNo. 440 of 2018 is allowed, and, the requisite leave is granted.The amended plaint, if, not filed be filed within one week, and,written-statement thereto be also filed within four weeksthereafter. In view of order passed in OMP No. 440 of 2018,OMP No. 186 of 2018 is dismissed. Court fee in accordance withlaw, if not fixed, be fixed, and, in commensuration with thevaluation of the share, of, the plaintiff, in, the undivided suit property.31[st] December, 2018 (priti)

( Sureshwar Thakur ),

Judge.