Full Judgement
Delhi High Court
Sushila Malge vs Raj Singh Bhatti & Ors on 28 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th February 2019.
+ CS(OS) 124/2019, IA Nos.3117/2019 (u/O XXXIX R-1&2 CPC) &
3118/2019 (for exemption)
SUSHILA MALGE ..... Plaintiff
Through: Mr. Jatin Rajput, Adv.
Versus
RAJ SINGH BHATTI & ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit for declaration, that the deed of
settlement dated 3rd April, 2018 executed by her husband namely Sh. Suresh
Babu Malge impleaded as defendant no.8 and by the defendant no.1 namely
Sh. Raj Singh Bhatti on behalf of defendants 1 to 7 namely Sh. Raj Singh
Bhatti, Smt. Sunita Bhatti, Sh. Umesh Bhatti, Smt. Anita Bhatti, Sh.
Narender Bhatti, Sh. Papu Bhatti & M/s Mahamedha Estate Private Limited,
is illegal, false, null and void ab initio and not binding on the plaintiff and
for perpetual injunction restraining the defendants from using the said deed
of settlement dated 3rd April, 2018 in any manner whatsoever.
2. The suit, for the relief of declaration is valued for the purposes of
jurisdiction at Rs.60 crores, being the amount claimed by the defendants 1 to
7 from the plaintiff and defendant no.8 under the said deed of settlement
dated 3rd April, 2018 and for the relief of court fees at Rs.20/- only. The suit,
for the relief of permanent injunction, for purpose of jurisdiction as well as
court fees is valued at Rs.200/- only.
CS(OS) 124/2019 Page 1 of 4
3. The Registry has listed the suit without raising any office objection as
to the valuation and/or court fees.
4. The counsel for the plaintiff, on enquiry as to how the suit with the
aforesaid valuation lies before this court, refers to para 7 of Suhrid Singh
Alias Sardool Singh vs. Randhir Singh and Ors., (2010) 12 SCC 112 laying
down that a non-party to a deed relating to immovable property, if in
possession of immovable property, seeking declaration for cancellation of
deed with respect to the property, executed by another, is not required to pay
ad valorem court fees. It is argued that since the plaintiff is not the executant
of the deed, is entitled to maintain the suit with fixed court fees on the relief
of declaration.
5. The aforesaid argument loses sight of the fact that the plaintiff is also
seeking the consequential relief of permanent injunction restraining the
defendants from relying upon the deed of settlement dated 3 rd April, 2018
inter alia for recovery of the amount claimed thereunder from the plaintiff
and the defendant no.8. Option to a plaintiff, suing for declaration
simplicitor, to maintain the suit without paying ad valorem court fees under
Article 17(iii) of the Second Schedule to the Court Fees Act 1870 is not
available when the suit for declaration is accompanied with a consequential
relief.
6. Once the suit is for declaration with consequential relief, Section
7(iv)(c) of the Court Fees Act will apply and ad valorem court fees will have
to be paid on the valuation, which as per Section 8 of the Suits Valuation
Act, 1887 is required to be the same for the purposes of court fees and
jurisdiction.
CS(OS) 124/2019 Page 2 of 4
7. The counsel for the plaintiff states that he does not press the suit for
consequential relief of permanent injunction.
8. The suit for consequential relief of permanent injunction is dismissed
as withdrawn.
9. I have next enquired from the counsel for the plaintiff, how the suit for
declaration simplicitor, without claiming consequential relief to which the
plaintiff is entitled to, maintainable. Attention is invited to proviso to
Section 34 of the Specific Relief Act, 1963, providing that no Court shall
make any declaration where the plaintiff, being able to seek further relief
than a mere declaration of title, omits to do so.
10. Declaration simplicitor will not serve any purpose. It will not prevent
the defendants No.1 to 7 from taking proceedings for recovery of monies
claimed by them to be due from the plaintiff and defendant No.8 and
pendency of this suit for declaration will not come in the way of such
proceedings. I may mention that even grant of permanent injunction to
restrain institution or prosecution of any proceeding in a Court, is barred by
Section 41(b) of the Specific Relief Act. Thus, the defendants,
notwithstanding this suit for declaration, if desirous of recovering monies, as
the plaintiff pleads they are demanding, would be entitled to do so. Needless
to state, in the said proceedings if any, the defence of the plaintiff will be the
same as in the plaint in the present suit. It is appropriate that the dispute if
any raised by the plaintiff is decided by way of defence to the claim of the
defendants No.1 to 7 and not by way of this suit for declaration simplicitor.
No declaration as sought can be granted without adjudicating the claim of
the defendants No.1 to 7.
CS(OS) 124/2019 Page 3 of 4
11. Grant of relief of declaration is in the discretion of the Court and
cannot be demanded as of right. Reference if any required can be made to
M.P. Mathur Vs. DTC (2006) 13 SCC 706.
12. In American Express Bank Ltd. Vs. Calcutta Steel Co. (1993) 2 SCC
199, it was held that discretion should not be exercised in favour of plaintiff
in a suit for declaration that the bills of exchange were illegal, null and void,
invalid, inoperative and of no effect nor binding on the plaintiff. In my view,
ends of justice will be served by holding that such declaration cannot be
granted, leaving the plaintiff to defend the claim if any on the basis of deed
of settlement dated 3rd April, 2018, including on the grounds taken in the
plaint.
13. The counsel for the plaintiff withdraws the suit with liberty to
approach the court of appropriate pecuniary jurisdiction i.e. the court of the
Civil Judge, Delhi.
14. Dismissed as withdrawn with liberty aforesaid but subject to the
condition that the plaintiff, along with the fresh proceedings, if any, will file
a copy of this order.
15. Since the suit is being withdrawn, it is clarified that the dismissal as
withdrawal of the suit insofar as for injunction, will not come in the way of
the plaintiff filing an appropriate proceedings.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 28, 2019 ak
CS(OS) 124/2019 Page 4 of 4
