Case BriefsHigh Courts

Punjab and Haryana High Court: In a revision petition challenging an order passed under Order 7 Rule 11 CPC; Raj Mohan Singh, J., allowed the petition while setting the order aside.

The present petition arises from the order dated 07-03-2020 passed by the Additional Civil Judge (Senior Division), Sirsa, vide which application under Order 7 Rule 11 CPC filed by the respondent was allowed and petitioner was directed to pay the ad valorem Court fee as per the market value of the suit property.

Counsel for the petitioner, Mohit Garg has submitted that there is a pending application before the trial court under Order 6 Rule 17 read with Order 1 Rule 10 and Section 151 CPC for amendment of the plaint. Through the proposed amendment, the petitioner intends to challenge the sale deed(s) executed by the plaintiff. In the event of acceptance of the said application under Order 6 Rule 17 CPC, the amended plaint would be tested at the threshold of Order 7 Rule 11 CPC. Consequently, if the proposed amendment is incorporated, the suit would be for declaration, challenging the sale deed and for possession.

The Court relied on the judgment delivered in the case of Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 which lays down the following principle-

“the executant of the sale deed if seeks cancellation of the deed, then the plaintiff has to pay the ad valorem Court fee on the consideration as shown in the deed.”

Based on this, the Court observed that the application under Order 6 Rule 17 CPC has to be decided before the decision of the application under Order 7 Rule 11 CPC. It is opined that the order dated 07-03-2020 passed by the trial court is pertinently illegal in nature.

“In any case, the pending application under Order 6 Rule 17 CPC ought to have been decided prior to the decision in the application under Order 7 Rule 11 CPC.”

In view of the above, the Court allowed the present revision petition directing the trial court to decide the application under Order 6 Rule 17 CPC. The Court also set aside the impugned order dated 07-03-2020. Only after consideration of the application under Order 6 Rule 17 will the trial court proceed with the application under Order 7 Rule 11 CPC.[Dera Baba Bhumman Shah Sangar Sarista v. Subhash Narula, 2020 SCC OnLine P&H 1625, decided on 08-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma J., upheld the impugned judgment and dismissed the petition.

The facts, in a nutshell, are that parties to the suit of the impugned judgment are in joint owner-in-possession of the suit land. Father of the parties executed a Will dated 19-5-2003 in favour of plaintiff, defendant and proforma defendant 1. After execution of Will dated 19-5-2003, on account of uncalled for behaviour of the defendant, father of the plaintiff cancelled the Will dated 19-5-2003 and executed a fresh Will dated 3-4-2008. Proforma defendant, Krishna Devi also died during the pendency of the suit and as such, she also executed Will dated 1-8-2012 in favour of plaintiff.  The instant petition is filed under Article  227 of the Constitution of India, laying challenge to order dated 18-4-2018 passed by learned Senior Civil Judge Nadaun, District Hamirpur, Himachal Pradesh, whereby an application under Order XXIII, Rule 1(3) read with Section 151 Civil Procedure Code, seeking therein permission to withdraw the suit with liberty to file afresh, came to be dismissed.

The petitioner submitted that he should not suffer for lapse on the part of counsel as he failed to institute the suit against proper parties. The petitioner was represented by counsel Ramakant Sharma and Bhuvnesh Sharma. Counsel Sanjay Dutt Vasudeva represented the respondents.

The Court observed that since no proper service has been effected, the suit would fail, dismissed the application on the ground that non-joinder of proper parties cannot be said to be a formal defect, rather said defect can be cured by way of filing an appropriate application for impleadment/amendment of plaint

The Court held s well settled that non-joinder or non-description of suit land is not a formal defect, rather same can be cured by way of filing an appropriate application.

In view of the above, impugned judgment upheld and petition dismissed.[Joginder Singh v. Surinder Pal, 2020 SCC OnLine HP 1793, decided on 29-09-2020]


Arunima Bose, Editorial Assistant has put this story together