HARMOHINDER SINGH vs JOGINDER SINGH AND ORS.
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th February, 2024
+ CS(OS) 566/2018, I.A. 3162/2024, I.A. 3164/2024
HARMOHINDER SINGH ….. Plaintiff
Through: Ms. Meena Chaudhary Sharma & Mr. Saurabh Goel, Advocates.
versus
JOGINDER SINGH AND ORS. ….. Defendants
Through: Mr. Rajiv K Garg, Mr. Ashish Garg & Mr. Shiven Banga, Advocates.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 3162/2024 & I.A. 3164/2024 (u/S 151 CPC, for condonation of delay of 6 days in re-filing)
1. Applications have been filed under section 151 CPC, 1908 seeking condonation of 6 days delay in re-filing I.A. 3163/2024 and I.A. 3161/2024.
2. For the reasons stated in the applications, the applications are allowed ant the delay of 6 days in re-filing the applications is hereby condoned.
3. The Applications are accordingly disposed of.
I.A. 3163/2024 (u/S 10 of Court Fees Act r/w Section 151 of CPC, 1908 by plaintiff, for refund of excess court fee)
4. The application under Section 10 of the Court Fee Act read with Section 151 CPC, 1908, has been filed on behalf of the plaintiff seeking refund of the excess court fee paid on behalf of the plaintiff.
5. It is submitted in the application that the suit for Partition was filed by the plaintiff, which has been allowed vide Judgment dated 15.11.2018. At the time of filing of the suit, under the bona fide presumption, the plaintiff had paid the court fee in the sum of Rs.8,11,060/-, assuming it would be later converted to the stamp duty. The plaintiff was a co-owner of the suit property and was in constructive possession of the entire suit property along with the co-owners and after filing of the suit, the tenant jointly handed over the Keys of the suit property to both the landlords i.e. the plaintiff and the defendant.
6. It is asserted that the Article 17 (VI) of the Schedule II of the Court Fee Act, provides that the plaintiff was liable to pay only a fixed court fee, though it has deposited the court fee in the sum of Rs.8,11,060/-.
7. Further, the Plaintiff is required to pay 50% of the stamp duty for drawing up of the Decree. Vide Order dated 16.11.2022, the Registrar has been directed to demand the non-judicial stamp duty for the same amount for execution of a Decree of partition. The plaintiff, therefore, has been put in double jeopardy for having to pay the court fee/stamp duty twice. A prayer is therefore, made that the excess court fee paid initially by the plaintiff, be refunded so as to enable him to be able to pay the stamp duty.
8. Reliance has been placed on Saroj Salkan vs. Capt. Sanjeev Singh and Others in FAO (OS) No. 239/2007.
9. Submissions heard.
10. Considering the submissions made that the Stamp duty is now required to be filed and that excess Court Fees was paid initially, the application is allowed and the excess court fee, if any, be refunded to the plaintiff, in accordance with the Rules.
I.A. 3161/2024 (u/S 151 of CPC, 1908 by plaintiff for providing separate decree to the plaintiff)
11. The application under Section 151 of the Code of Civil Procedure, 1908, has been filed on behalf of the plaintiff for providing separate Decree in respect of his share, to the plaintiff .
12. It is submitted on behalf of the plaintiff that vide Judgment dated 15.11.2018, the plaintiff and defendant have been held entitled to 50% share each, in the suit property. It is submitted that since share of both the parties is 50% and the stamp duty payable by both the parties is also 50% each, separate decrees be drawn in respect of their respective shares instead of a Joint Decree and the Registry be directed to hand-over the Original Decree on the requisite stamp paper to the plaintiff, in the interest of justice.
13. Submissions heard.
14. As per the Registry only one final Joint Decree is drawn, which requires to be necessarily registered after payment of the requisite stamp duty. Thereafter, the certified copy can be taken by both the parties. There cannot be two separate Decrees prepared of one Judgment.
15. Consequently, both the parties are directed to jointly approach the Registry for getting the original Decree registered and thereafter each party is at liberty to take the certified copy thereof, in accordance with law.
16. The application is disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 14, 2024
RS/JN
CS(OS) 566/2018 Page 1 of 3