Himachal Pradesh High Court
Tinku @ Bimal Kumar Walia vs Rinku @ Kamal Kishore Walia on 31 July, 2025
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
CMPMO No.84 of 2025
Reserved on:-18.07.2025
Decided on 31st July, 2025
.
Tinku @ Bimal Kumar Walia
...Petitioner
Versus
Rinku @ Kamal Kishore Walia
...Respondent
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
1
Whether approved for reporting? Yes
For the petitioner: Mr. Bhuvnesh Sharma, Senior
Advocate, with M/s Shekhar Badola
r and Rupesh Kumar, Advocates.
For the respondent: Mr. Janesh Gupta, Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this petition filed under Article 227 of the
Constitution of India, the petitioner has prayed for the following
relief:-
“It is most respectfully prayed that this petition
may kindly be allowed and the impugned order dated
31.08.2024 in CMA No.304/2022 in Civil Suit No.461of 2017, titled “Rinku @ Kamal Kishore Walia Vs.
Tinku @ Vimal Kumar Walia, passed by the learned
Senior Civil Judge, Court No.1, Kangra, District
Kangra (HP), may kindly be quashed and set aside
and the application under Order 7 Rule 10 read with
Order 7 Rule 7 of the CPC may kindly be allowed and
the plaint may kindly be ordered to be returned to the
respondent/plaintiff for its presentation in the
competent Court of jurisdiction, in the interest of
justice.”
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2. The impugned order is dated 31.08.2024, in terms
whereof an application filed under Order VII Rule 10 read with
Order VII Rule 7 has been dismissed by the learned Court below.
.
3. Learned Senior Counsel for the petitioner argued that
the impugned order is not sustainable in the eyes of law. He
submitted that the suit filed by the respondent/plaintiff was for
grant of a preliminary decree for partition by way of separation of
½ share in the land/houses/shops, as prayed in the Head note of
the suit and in light of the prayers made in the Civil Suit, the
plaintiff was bound to pay ad-valorem Court fee on the value of
the suit land/suit property and as the plaintiff undervalued the
subject matter property for the purpose of pecuniary jurisdiction,
the plaint was liable to be returned in terms of the provisions of
Order Rule VII Rule 10 as well as order VII Rule 7 of the Code of
Civil Procedure. He thus submitted that as the learned Trial Court
erred in not appreciating this extremely important aspect of the
matter, the present petition be allowed and the impugned order
be quashed and set aside.
4. On the other hand, learned counsel appearing for the
respondent/plaintiff submitted that there was no infirmity in the
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order passed by the learned Court below, for the reason that the
valuation of the suit land for the purpose of pecuniary jurisdiction
was rightly assessed in light of the prayers made in the suit and
.
considering the fact that the plaintiff was not praying for a decree
of possession, as he was already in part possession of the suit
land.
5. I have heard learned counsel for the parties and have
also carefully gone through the order passed by the learned
Court below. r
6. The application filed by the petitioner was dismissed
by the learned Trial Court by assigning the following reasons:-
“The contention of the applicant is that the
present suit is liable to be returned on the ground of
pecuniary jurisdiction as property in question is a
multicore property. Now perusal of main suit shows
that it is a suit for partition by c0o-sharer claiming tobe in part of possession and no relief of possession
has been prayed for. In such type of suit, theHon’ble High Court of Himachal Pradesh in AIR
1966 HP4(7) Mina Ram v. Amolak Ram and others,
has held that where suit for partition, plaintiff allegesactual possession of some of property and in
constructive possession of other, the relief of
partition claimed does not fall either under Section
7(iv) (b) or section 7(v) of the Court fees Act and
same shall fall under Article 17(vi) Schedule II
Article 17(vi) of the Court fees Act, 1870, that the
plaintiff/non-applicant has declared and affixed right
amount of Court fees i.e. Rs.98/-. Therefore, the
objection raised by applicant/defendant is not::: Downloaded on – 22/08/2025 23:00:42 :::CIS
4sustainable. Also, suit being simplicitor suit for
partition, this Court has the jurisdiction to try the
present matter at hand. Therefore, for reasons and
discussions made supra, this Court is of the opinion
that present application is devoid of any merits.
Accordingly application stands disposed off with.
costs of Rs.500/- Same be registered and tagged
with the main case file for record.”
7. A perusal of the plaint demonstrates that the suit filed
is a simplicitor suit for partition. Therefore, in light of this fact, as
far as the commutation of Court fee payable is concerned, the
assessment thereof by the plaintiff for the purpose of assessing
the pecuniary jurisdiction was correctly upheld by the learned
Trial Court.
8. Learned Trial Court relied upon the judgment of this
Court in AIR 1966 Himachal Pradesh 4(V 53 C 2) titled Mina Ram
v. Amolak Ram and others, in which, this Court held as under:-
“14. The learned counsel for respondent No.
1 invited the attention of the Court to paragraph 11
of the plaint wherein it is stated that respondent No.
1 had refused to render accounts after 1960 and toparagraph 12 wherein it is stated that respondent
No. 1 had denied the right of the petitioner, and
contended that the clear inference from the
aforesaid statements was that the petitioner
admitted in the plaint that he had been ousted from
the enjoyment of the joint property, and that,
therefore, either Section 7 (iv) (b) or Section 7 (v),
and not Article 17(vi), Schedule II, of the Court-Fees
Act, was applicable to the relief of partition. The
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5to be correct. A reading of the plaint, as a whole,
shows that the allegations of the petitioner were that
he had been occasionally visiting the property in suit
which was being managed by respondent No. 1, on
behalf of and for the benefit of the joint Hindu family,
that he had been receiving profits of the orchard and.
that it had become difficult to enjoy the property
jointly. The petitioner did not state in the plaint that
he had been ousted from possession of the
property. The refusal to render accounts and denialof title, by respondent No. 1, had furnished cause of
action to the petitioner, for the suit. Those facts
were stated, in the plaint, in that context. The
allegations, in the plaint, read as a whole, amounted
to an averment that the petitioner was in actualpossession of some property and in constructive
possession of the other. Therefore, the relief of
partition, claimed by the petitioner, did not fall within
the ambit of either Section 7 (iv) (b) or Section 7 (v)of the Court-Fees Act, but fell within the four corners
of Article 17 (vi), Schedule II.
15. There is authority for the proposition that Article
17(vi), Schedule II applies to a suit, brought for
partition of joint family property, by a member, whoalleges that he is in possession, actual or
constructive, of the property. Reference may be
made to AIR 1934 Lah 563 supra. The facts, in thatcase, were similar to the facts in the present case.
The plaintiffs had brought a suit for separate
possession of one-half share, by partition, allegingthat the properties belonged to a joint Hindu family
of which the plaintiffs and the defendants were
members and that the plaintiffs were in possessionof some of the properties. The plaint was stamped
with Court-fees of Rs. 10/- only under Article
17(vi), Schedule II of the Court-Fees Act, though the
market value of the half share was one lac. The
defendants denied that the plaintiffs were members
of the joint Hindu family or had a share in the
properties in suit or were in possession of any of the
properties. The defendants raised an objection that
proper Court-fees had not been paid, on the plaint.
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The Full Bench held that Court-fee, on the suit, was
payable under Article 17(vi), Schedule II and not
under Section 7 (iv) (b), of the Court-Fees Act.
Similarly, it was held in, AIR 1947 Bom 259 (FB)
supra, that a suit for partition of joint family property,.
when the plaintiff was alleged to be in constructive
possession, is not a suit for possession of property
within the meaning of Section 7(v) Court-Fees Act,
but fell under Article 17(vi), Schedule H. In C. R.Ramaswami Ayyangar v. C.S. Rangachariar, AIR
1940 Mad 113 (FB), it was laid down that
neither Section 7(iv) (b) nor Section 7(v) of the
Court-Fees Act applied to a suit for partition of joint
family property by a member who was in jointpossession and that Article 17(vi), Schedule II was
applicable to such a suit. The Madras Full Bench
overruled the decision of a previous Full Bench
which had held that a suit for partition of joint familyproperty was governed by Section 7(iv) (b) of the
Court-Fees Act.
16. It follows from the above discussion that the
petitioner was liable to pay fixed Court-fees of Rs.
15/-, with respect to the declaratory relief that thelands, including the orchard, were joint property and
were liable to be partitioned and fixed Court-fees of
Rs. 15/-, with respect to the relief of separatepossession of one-half share of houses, by partition.
The payment of additional Court-fees on the amount
of Rs. 4100.00, the market value of one-half sharein certain houses, was unnecessary. The petitioner
had paid much more Court-fees on the reliefs,
claimed, than he was liable to pay under the Court-
Fees Act. The refusal of the learned Senior
Subordinate Judge to accept the plaint of the
petitioner, which was not only properly stamped but
was stamped with more Court-fee than was required
under law amounted to failure to exercise
jurisdiction. The order of the learned Senior
Subordinate Judge, directing the petitioner to pay
additional Court-fees of the value of Rs. 3200 60np
is, illegal and liable to be set aside.”
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9. Presently, there is in vogue The Himachal Pradesh
Court Fee Act, 1968. Chapter III of the Act deals with fees in
other Court and in Public Offices.
.
10. Section 7 “IV” of the same provides as under:-
“7(iv) in suits-
(a)for movable property of no market value.- for
movable property where the subject-matter has no
market-value, as, for instance, in the case of
documents relating to title;
(b) to enforce a right to share in joint family property.- to
enforce the right to share in any property on the groundthat it is joint family property;
(c) for a declaratory decree and consequential releif.- to
obtain a declaratory decree or order, where
consequential relief is prayed;
(d) for an injunction.- to obtain an injunction;
(e) for easements.- for a right to some benefit (not
herein otherwise provided for) to arise out of land; and
(f) for accounts.- for accounts; according to the amount
at which the relief sought is valued in the plaint or
memorandum of appeal;
In all such suits the plaintiff shall state the
amount at which he values the relief sought: Provided
that the minimum court-fee in each case shall be
thirteen rupees:
Provided further that in suit coming under sub-
clause (c), in cases here the relief sought is with
reference to any property such valuation shall not beless than the value of the property calculated in the
manner provided for by paragraph (v) of this section.”
10. Therefore, in terms of Section 7(iv)(b) in a suit to
enforce a right to share in a joint family property, the plaintiff has
to state the amount at which he values the relief sought provided
that the minimum court-fee in each case shall be thirteen rupees.
.
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11. Now, in the present case, the suit instituted by the
respondent does not falls under Sub-clause(c) of Section 7 (iv),
.
neither the plaintiff has sought the relief of possession therein.
Therefore also, the plaintiff was not bound to pay ad-valorem
Court fee as has been argued by the learned Senior Counsel for
the petitioner.
12. At this stage, this Court would also like to refer to the
judgment cited by the learned Senior Counsel for the petitioner
i.e., Abdul Hamid Shamsi versus Abdul Majid and others (1988) 2
SCC 575. By referring to the said judgment, learned Senior
Counsel submitted that as the plaintiff was bound to pay ad-
valorem Court fee on the actual value of the property, the Trial
Court did not have the pecuniary jurisdiction to adjudicate the
case and this extremely important aspect of the matter has been
ignored by the learned Court below. However, a perusal of the
judgment passed by the Hon’ble Supreme Court demonstrates
that the same does not come to the rescue of the petitioner. All
that the Hon’ble Supreme Court has held in the said judgment is
that the valuation should not be arbitrary and whimsical and in
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the context of the present case, it cannot be said that the
valuation of the suit for the purpose of pecuniary jurisdiction, as
has been done by the petitioner is arbitrary or whimsical.
.
13. Therefore, in light of the above observations, as this
Court does not find any infirmity in the impugned order, this
petition is dismissed. Pending miscellaneous applications, if any,
also disposed of.
(Ajay Mohan Goel)
Judge
July 31, 2025
(Vinod)
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