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Madhya Pradesh High Court · body

2007 DIGILAW 733 (MP)

Ashok Kumar Gehani v. Ramhet Agrawal

2007-07-16

A.K.SHRIVASTAVA

body2007
ORDER 1. This revision petition has been directed against the impugned order passed by learned trial Court, dismissing the application under Order 7 Rule 11, CPC filed by petitioners/defendants. 2. Instant suit has been filed by plaintiff/respondent No. 1 for declaration that the sale-deed dated 7.5.2004 which was registered on 21.5.2004, is null and void. The other relief which has been prayed by the plaintiff is for permanent injunction that on suit property defendants may not raise any construction. According to the plaint averments, in the sale-deed dated 7/21 May, 2004, plaintiff is not a party. Shri Aradhe, learned senior counsel for petitioners/defendants also admits that plaintiff is not the party in the said sale-deed. 3. On going through the averments made in the plaint, it is gathered that the sale-deed was executed by defendant No.3 in favour of defendants No.1 and 2, but plaintiff is not the party in the said deed. Ramhet Agrawal who is plaintiff is also not deriving or claiming any right, title and interest from Bhagwandas Agrawal, defendant No. 3 who sold the property to defendants No.1 and 2. Thus, I am of the view that since plaintiff is not a party in the sale-deed and is also not claiming his right from defendant No.3 who is vendor of defendants No.1 and 2, therefore, in view of Full Bench decision in Santosh Chandra and others v. Cyan Sunder Bai and others [ 1970 JLJ 290 ] he is not liable to pay ad valorem court fees and mere declaration that sale deed is void would suffice. The decision of this Court in Pratap and another v. Punia Bai and others [1976 JLJ 703] is clear on the point in issue as to whether the plaintiff is bound to pay ad valorem court fees if he seeks mere relief of declaration. This Court has categorically held in Pratap (supra) that if the transaction is voidable, and plaintiff is trying to avoid the voidable transaction, he is liable to pay ad valorem court fees but, if the transaction is void a mere declaration that the sale-deed is void would suffice and it is not necessary for the plaintiff to seek the relief of setting aside something which has no existence in the law. Shri Aradhe, learned senior counsel is also not disputing this well settled proposition of law. Shri Aradhe, learned senior counsel is also not disputing this well settled proposition of law. However, his contention is that the relief of injunction is consequential to the declaratory relief sought by plaintiff and since the plaintiff has valued his plaint for Rs. one crore of the land for purpose of declaration therefore, the same valuation ought to have been made for the purpose of obtaining a decree of injunction. In this context he has invited my attention to section 8 of the Suits Valuation Act. In support of his contention learned senior counsel has placed reliance on the Single Bench decision of this Court Raj Kaur w/o Garumukh Singh Randhawa v. M/s. Kinetic Gallery and another [ 2000 (I) JLJ 67 = 2000 (2) MPLJ 72]. 4. Considered this argument. 5. It is well settled in law that at the time of consideration of an application under Order 7 Rule 11 CPC only the averments made in the plaint is required to be seen. On going through the plaint averments made in para 7 (e) it is gathered that plaintiff is seeking relief of injunction not to raise construction so that his right to access may not be obstructed. Thus he has valued the suit for Rs. 500/- for the purpose of injunction. I am of the view that proper valuation has been made by the plaintiff for the purpose of obtaining decree of injunction and proper court fee has been paid on this relief. 6. The true test in determining whether a relief is consequential or not is that if such relief can be claimed independently, then it cannot be said to be a consequential relief Shamsher Singh v. Rajinder Prasad [ AIR 1973 SC 2384 ]. I may further add that the expression (c) consequential relief, in section 7 (iv) (c) of the Court-fees Act means some relief which would follow strictly from the declaration given, the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of declaration as a substantial relief. A consequential relief would be a relief which in absence of a declaration in favour of the party seeking it, cannot be granted. A consequential relief would be a relief which in absence of a declaration in favour of the party seeking it, cannot be granted. If the plaintiff who is a party to the deed or earlier decree or any other proceeding wants to avoid it, then without seeking a declaration that such proceedings or documents were void, he cannot seek an injunction against the other party that the other party be restrained from taking benefit from the sale deed or executing the decree. In such a case unless the declaration .is granted, no injunction would be issued. An injunction in such cases would be a consequential relief of the declaration. 7. In present case the relief of injunction claimed by plaintiff is that defendant should not obstruct his right of access which is quite distinct and separate from his relief of declaration and therefore the valuation of Rs. 500/- for the purpose of injunction cannot be said to be arbitrary and since this relief of injunction is not consequential to main relief of declaration that sale deed is void therefore plaintiff is not bound to pay advalorem court fees on Rs. one crore. Sobina @ Farida v. Mohd. Abdul Wasit [1997 (l) JLJ 105] and Nainsukh Kishandas and others v. State. Manish Choudhari and others [ 1998 (2) MPLJ 79 ]. The decision of Raj Kaur (supra) is not applicable in the present case because in this case relief of permanent injunction was flowing from the relief of declaration and hence it was held by this Court that for declaration and injunction section 7 (iv) (c) of Court-fees Act would be applicable. 8. Thus 1 am of the view that the learned Court below did not commit any error in rejecting the application under Order 7 Rule 11 CPC. 9. For the reasons stated above, I do not find any merit in this revision petition and therefore the same is dismissed with costs. Counsel fees Rs. 2,000/-, if pre certified.