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TMI Blog2014 (7) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff, without appropriately valuating the suit for the relief of recovery of damages/compensation claimed and without quantifying the damages/compensation claimed and paying appropriate court fees thereon is not entitled to have the claim for damages/compensation adjudicated. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g. bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds; it was thus held that such an order even though it keeps the suit alive decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a 'judgment' so as to be appealable to a larger Bench. To the same effect is the judgment of the Division Bench of this Court in Jyotika Kumar Vs. Anil Soni 156 (2009) DLT 685 and SLP CC No. 10698/2009 whereagainst was dismissed in limine on 11th May, 2009. 6. Notwithstanding the aforesaid, what is peculiar about the order impugned in this appeal is that though it dismisses t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This plea of the defendants is without any merit. 8. We enquired from the counsel for the respondent/plaintiff, as to how the question of payment of court fees can be deferred to the stage of final adjudication and as to how the claim of the respondent/plaintiff for damages can be put to trial and the payment of court fees thereon be deferred and be directed to be paid only if the plaintiff succeeds in such claim. We further enquired from the counsel for the respondent/plaintiff, whether not, if the same was permitted, the plaintiff in each and every suit for recovery of money would contend that the payment of court fees thereon be deferred to the final stage, with the plaintiff being liable to pay court fees only if succeeds and escaping such payment, if were to be unsuccessful in his claim. 9. Needless to state, no answer was forthcoming. The counsel for the respondent/plaintiff on the contrary referred to Roop Lal Sathi Vs. Nachhattar Singh AIR 1982 SC 1559, Chief Inspector of Stamps Vs. Indu Prabha Vachaspati (1998) 9 SCC 157, Vigneswara Coop. Housing Society Ltd. Vs. K. Balachandramouli (2005) 13 SCC 506 and Mayar (H.K.) Ltd. Vs. Owners & Parties, Vessel M.V. Fortune Expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint is written upon paper insufficiently stamped and the plaintiff, on being required to supply the requisite stamp paper fails to do so, the plaint shall be rejected. Thus, as per the newly added Sub-Rule (3) of Rule 1 of Order IV, there can be no due institution of a suit without proper court fees being paid. If there is no institution of the suit qua one of the reliefs, the question of putting the same to trial does not arise. 12. The fact of the matter remains that the appellants/defendants sought rejection of the plaint on the ground, of the suit insofar as for the relief of damages having been not valued at all for the purposes of court fees and the appropriate court fees having not been paid thereon but the learned Single Judge refused to decide the same. The said refusal of the learned Single Judge to decide the ground urged for rejection of the plaint coupled with the deferment, vide subsequent order dated 29th January, 2014, of decision on the said aspect till the time of final adjudication, and which will result in the claim of the respondent/plaintiff for damages being put to trial without appropriate court fees being paid thereon, in our view is sufficient for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relief of damages/compensation. 15. The claim for damages is not such qua which enquiry is to be held nor are the damages claimed such as to which accounts are to be taken under the orders of the Court. It is for the respondent/plaintiff to quantify the damages claimed and prove the entitlement thereto. It was thus incumbent upon the respondent/plaintiff to quantify the damages/compensation for recovery of which the suit was filed and in the absence thereof, no enquiry into the claim for damages can be conducted. Similarly, if the respondent/plaintiff presses the claim for damages, the respondent/plaintiff is also required to value the same for the purposes of court fees and jurisdiction and which has also not been done. The counsel for the respondent/plaintiff does not controvert that ad-valorem court fees is payable on the damages so claimed. 16. As far as the reasoning given by the learned Single Judge, of rejection of the plaint in part being not permissible, the said principle came into existence to prevent dissection of pleadings into several parts and examination of whether each of them disclosed a cause of action and to prevent rejection of the plaint in the entirety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPC and instead of rejecting a part of the plaint have been directing the plaintiff to amend the plaint by deleting the part of the pleadings and the relief qua which the suit is not maintainable. We are therefore of the view that the respondent/plaintiff, without appropriately valuating the suit for the relief of recovery of damages/compensation claimed and without quantifying the damages/compensation claimed and paying appropriate court fees thereon is not entitled to have the claim for damages/compensation adjudicated. 17. The counsel for the respondent/plaintiff, after the close of hearing, has filed a list of citations with copies of the judgment, referring to: (I) Shah Babulal Khimji Vs. Jayaben D. Kania AIR 1981 SC 1786. Reliance is placed on para 121 of the judgment to contend that this appeal is not maintainable. We are unable to agree. Para 121 of the judgment deals with an order on an application under Order VII Rule 11 of the CPC directing the plaintiff to pay additional court fees. The said order was held to a 'judgment' but appealable only at the instance of the plaintiff. The defendant was held to be not entitled to appeal for the reason of having no locus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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