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 1Whether approved for reporting? Yes For the petitioner: Mr. Bhuvnesh Sharma, Senior Advocate, with M/s Shekhar Badola 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.461 of 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.” 2 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 3 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. 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 to be in part of possession and no relief of possession has been prayed for. In such type of suit, the Hon’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 alleges actual 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 4 sustainable. 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 to paragraph 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 contention of the learned counsel does not appear 5 to 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 denial of 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 actual possession 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, who alleges that he is in possession, actual or constructive, of the property. Reference may be made to AIR 1934 Lah 563 supra. The facts, in that case, were similar to the facts in the present case. The plaintiffs had brought a suit for separate possession of one-half share, by partition, alleging that the properties belonged to a joint Hindu family of which the plaintiffs and the defendants were members and that the plaintiffs were in possession of 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. 6 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 joint possession 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 family property 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 the lands, 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 separate possession 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 share in 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.” 7 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 ground that 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 be less 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. . 8 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 9 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)