RAVI MALHOTRA  Vs PREM MALHOTRA & ANR

FAO(OS) 167/2019 Page 1 of 4
$~A-6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Date of Decision: 12.01.2021

% FAO(OS) 167/2019

RAVI MALHOTRA ….. Appellant
Through: Mr. Sandeep Sharma, Advocate.

versus

PREM MALHOTRA & ANR ….. Respondents
Through:

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J. (ORAL)

1. The present appeal is directed against the order dated 11.09.2018
passed by the learned Single Judge rejecting the appellant/ defendant’s
application bein g I.A. No. 23748/2014 under Order VII Rule 11 CPC. The
appellant has also assailed the order dated 05.10.2018 passed in Review
Petition No. 383/2018, whereby the review sought by him against the order
dated 11.09.2018 was also rejected.
2. The respondents/ plaintiffs instituted a suit against the
appellant/defendant to seek a decree for partition and permanent injunction
in respect of property No. 17, Road No. 8, Punjabi Bagh, New Delhi on the
premise that the plaintiffs and the defendant are co -owners of th e said
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property.
3. After the demise of their father, Late Shri Jaidev Malhotra, the
plaintiffs are residing in USA and therefore, the suit has been instituted
through their General Attorney. It has been averred in the plaint that the
plaintiffs are in joi nt possession of the suit property which has, accordingly,
been valued for purposes of court fee and jurisdiction. The
appellant/defendant has filed his written statement, claiming therein that the
plaintiffs, not being in possession of the suit property, were required to pay
ad valorem Court fees on the value of their share in the same.
4. Vide the impugned order, the learned Single Judge has rejected the
application by observing that the question as to whether proper Court fees
has been paid or not had alrea dy been framed as an issue vide order dated
23.09.2014, which issue would be decided at the stage of final hearing of the
suit. The review application filed by the appellant was disposed of by
recording the undertakings of the plaintiffs that in case the Court were to
hold that further Court fees was payable, they would make the requisite
payment within the time granted by the Court at that stage.
5. Learned counsel for the appellant submits that the learned Single
Judge has failed to appreciate that the res pondents/plaintiffs have not visited
India in the last 15 years and therefore, could not be treated as being in
possession of the suit property. Consequently, the respondents were bound
to pay the ad valorem Court fees on their claim for partition, which aspect
has been not properly appreciated by the learned Single Judge.
6. Having heard the learned counsel for the appellant and perused the
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FAO(OS) 167/2019 Page 3 of 4
record, we do not find any merit in the present appeal. The appellant does
not dispute the fact that the plaintiffs continue to be co -owners of the suit
property, which fact has been specifically averred in the plaint. In our view,
that statement, in itself, is sufficient to show their possession , since
ownership is a bundle of rights – including the right to possessio n and there
is nothing to show that the plaintiff has been ever divested of possession .
7. Even otherwise, from a perusal of the plaint it is evident that it is not
the case of the plaintiffs that they were ever dispossessed or forcibly ousted
from the suit p roperty. On the contrary, the plaintiffs have specifically
averred in the plaint that they continue to be in joint possession of the suit
property.
8. It is settled legal position that an application under Order VII Rule 11,
CPC is to be determined primari ly by looking at the averments in the plaint
and the documents filed by the plaintiff along with the plaint. The version of
the defendant cannot be gone into to decide such an application. Therefore,
the plea of the defendant/ appellant that the plaintiffs are not in possession or
that he is in exclusive possession of the suit property was rightly not
considered by the learned Single Judge while deciding the said application.
9. We may also observe that deficiency in court fees, if any, is not fatal
to mainta inability of the suit. Even if, eventually the court fees is found to be
deficient and the Court comes to the conclusion that more amount is payable
by the plaintiff towards court fees, the plaintiff is entitled to be granted a
reasonable opportunity to ma ke up the said deficiency before the decree is
drawn.
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FAO(OS) 167/2019 Page 4 of 4
10. In the present case, in view of the specific undertaking given by the
plaintiffs as recorded in the order dated 05.10.2018 during the hearing of the
review petition, we find no merit in the present appe al, which is accordingly
dismissed.

VIPIN SANGHI, J

REKHA PALLI, J
JANUARY 12, 2021
N.Khanna
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