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2009 DIGILAW 2690 (ALL)

RAKESH PRATAP SINGH v. ROYAL SHIKSHA SANSTHAN

2009-07-28

RAJIV SHARMA, SATISH CHANDRA

body2009
JUDGMENT RAJIV SHARMA and Dr. SATISH CHANDRA, JJ.--Heard Mr. A.P. Singh, Gaur, learned Counsel for the appellant and Mr. Prashant Chandra, Senior Advocate assisted by Mr. Jaspreet Singh, learned Counsel for the respondent No.1. 2. It has been stated by the Counsel for the appellant that the land comprised in Khasra Plot No. 648-Kha, measuring 4.0469 hectares is situated in Village Kankaha, Pargana Nigohan, Tehsil Mohanlalganj, District Lucknow. The appellant executed a sale-deed in the name of respondent No. 1 on 15.12.2005, which is recorded in the name of the appellant as bhumidhar with transferable rights, Counsel for the appellant submit that the appellant came to know that an application dated 1.12.2006 has been moved in the name of Royal Shiksha Sans than (respondent) before the All India Council for Technical Education for grant of approval of establishing an institution ih the name and style of Lucknow College of Technology and Management (Hotel Management Wing) over the suit property. 3. Counsel for the appellant further submitted that the Society (respondent No.1) fraudulently and deceitfully applied for and obtained recognition on the basis of false information and forged documents including the fact that instead of showing the building, which could belong or constructed over the property in suit, the building and the property situated on the adjoining land of the appellant was claimed to have been owned by the society. In these circumstances, the appellant lodged a complaint with the respondent No. 2 vide letter dated 25.4.2009 for de-recognition of the society and cancellation of affiliation of the institute. When no action was taken on the complaint of the appellant, a Writ Petition No. 4746 (M.B.) of 2006, Shivgarh Resort Limited v. Union of India and others, was filed before this Court. A Division Bench of this Court directed the respondent No.2 to decide the complaint of the appellant by 3rd week of July. 4. When no action was taken on the complaint of the appellant, a Writ Petition No. 4746 (M.B.) of 2006, Shivgarh Resort Limited v. Union of India and others, was filed before this Court. A Division Bench of this Court directed the respondent No.2 to decide the complaint of the appellant by 3rd week of July. 4. Counsel for the appellant has further submitted that when the appellant show that extensive construction works are under way on the property in question, he also filed a suit for declaration, permanent and mandatory injunction before the Trial Court on 27.5.2009 which was registered as Regular Suit (No. 158 of 2009) with the title Rakesh Pratap Singh v. Royal Shiksha Sansthan and another, alongwith application under Order XXXIX, Rules 1 and 2 for interim injunction and another application under Order XXXIX, Rule 7 of the Code of Civil Procedure for appointment of an Advocate Commissioner which were numbered as C-6 and C-10 respectively. 5. In the said suit, the Munsarim has reported the deficiency of Court fee and required the appellant to make good the deficiency as the valuation of the property in question has been declared as Rs. 61,75,000. The Munsarim was of the opinion that the requisite fee has not been paid. Objections to the said report of Munsarim was filed by the appellant-plaintiff which was numbered as C-16. The objections alongwith an application under Order XXXIX, Rules 1 and 2 as well as the application under Order XXXIV, Rule 7 were taken up for disposal on 9.7.2009. By means of the orders passed separately, the application (C-6) under Order XXXIX, Rules 1 and 2 were rejected inter alia on the ground that the requisite Court fee has not been paid. As regard the appointment of Ac.vocate Commissioner, the application (C-10) was allowed, but the objections (C-16) to the report of Munsarim were rejected by the order dated 9.7.2009 which is impugned in the instant appeal. By this order, the Trial Court has directed the appellant-plaintiff to pay the Court fee as provided under section 7 (iv-A) by 17.7.2009. 6. A preliminary objection has been raised by Mr. Prashant Chandra, Senior Advocate appearing for the respondents-defendants that the appropriate Court fee as required was not paid, so under section 6-A (2) of the Court Fees Act all the interim orders have been discharges. Mr. 6. A preliminary objection has been raised by Mr. Prashant Chandra, Senior Advocate appearing for the respondents-defendants that the appropriate Court fee as required was not paid, so under section 6-A (2) of the Court Fees Act all the interim orders have been discharges. Mr. A.P.S. Gaur, learned Counsel for the appellant stated that he has complied with the order. 7. Today, a supplementary-affidavit has been filed by the appellant, wherein it has been stated that as per provision of section 7 (iv-a), the deemed value of the property is thirty times of the annual revenue record. Accordingly, for the purposes of ad valorem Court fees under that provision, value of the land comes to Rs. 3,345 and the requisite Court fee of Rs. 465.50 has been paid, but inspite of that, the deficiency has wrongly been reported by the Munsarim, to which objections were filed, but that same were rejected by means of the impugned order dated 9.7.2009 and the Court has directed for making the deficiency in the Court fees. 8. It has been argued that the application moved before the Court below was under section 6 (3) of the Court Fees Act, 1870 where the jurisdiction of the Trial Court was permissible only when a report under section 24 of the Court Fees Act is received. Further, a deed of sale is not an instrument or a decree, securing money, therefore, the Trial Court has vitiated the order by relying upon section 7 (iv-a) of the Court Fees Act. To strengthen his arguments, he has relied upon the cases of Smt. Shefali Roy v. Hero Jaswant Dass;1 Budha Lal v. Ram Chand;2 and Arun Kumar Tiwari v. Smt. Deepa Sharma.3 1. 1992 (20) ALR 831. 2. 1992 (20) ALR 837. 3. 2006 (24) LCD 92= 2006 (3) AWC 2142 = 2006 (1) ARC 717 . 9. Rebutting the aforesaid submissions, the Counsel for the opposite parties Mr. Prashant Chandra, Senior Advocate submitted that the Court fee is to be paid on the market value and further, the appellant himself declared that the valuation of the suit is Rs. 61,75,000. 3. 2006 (24) LCD 92= 2006 (3) AWC 2142 = 2006 (1) ARC 717 . 9. Rebutting the aforesaid submissions, the Counsel for the opposite parties Mr. Prashant Chandra, Senior Advocate submitted that the Court fee is to be paid on the market value and further, the appellant himself declared that the valuation of the suit is Rs. 61,75,000. This Court in the cases of Ajay Tiwari v. Hirday Ram Tiwari and others1 and Smt. Vecma Bahl (deceased) and others v. Vishnu Kumar and others,2 has specifically held that the Court fees is to be paid as per section 7 (iv-a) of the Court Fees Act and as such, the Court below had not committed any illegality or infirmity in the impugned order. 1. 2006 (65) ALR 70. 2. 2005 (61) ALR 853. In Ajay Tiwari's case (supra) this Court relying upon a Full Bench decision rendered in Smt. Bibbi and another v. Shugan Chand and others,3 observed as under in paragraph 12 of the report : 3. AIR 1968 All 216 . "To conclude in view of Full Bench decision in the case of Smt. Bibbi and another v. Shugan Chand and others,4 (supra) a sale-deed being a document securing other property within the meaning of section 7 (iv-a) of the Act, a suit for declaration of the sale-deed as null and void squarely falls within the four corners of section 7 (iv-a) and Article 17 (iii) of the Schedule II which applies to suit not otherwise provided for in the Act does not come into play." 4. MANU/UP /0055/1968= AIR 1968 All 216 . 10. Section 8 (iv-A) refers to prayer for a declaratory decree and consequential relief. Where the plaintiff wants to claim an injunction which is a consequence of declaration or where without declaration of right or status the injunction cannot be granted, section 7 (iv) (a) would apply with full. Section 7 (iv) (d) elates to the relief of the injunction. Article 17 of Schedule II of Court Fees Act, refers to certain suits wherein the fixed Court fee is to be paid. It relates to such reliefs where the plaintiff seeks to obtain declaratory decree where no consequential relief is prayed. In view of the aforesaid legal position emerging out from the discussion, the case laws relied upon by the appellant are of no avail to him. 11. It relates to such reliefs where the plaintiff seeks to obtain declaratory decree where no consequential relief is prayed. In view of the aforesaid legal position emerging out from the discussion, the case laws relied upon by the appellant are of no avail to him. 11. A Division Bench of this Court dealing with identical question in the case of Smt. Veena Bahl (deceased) and others v. Vishnu Kumar and others,5 relying upon various case laws including the Full Bench decision rendered in the case of Chief Inspector of Stamps V. Mahant Laxmi Narain,6 held that a suit for declaratory decree in respect of the specified property alongwith a consequential relief of injunction falls under section 7 (iv) (a) of the Act and therefore, Article 17 (iii) of Schedule II is not attracted. 5. 2005 (61) ALR 853. 6. AIR 1970 All 488 . 12. A perusal of the relief sought by the appellant in Regular Suit No. 158 of 2009 reveals that the appellant-plaintiff has prayed for declaration of sale-deed dated 15.12.2005 executed by him in favour of the defendant No.1 be declared void and a copy of the decree be sent to the registering authority for making an endorsement on the copy of the sale-deed in his books. It may be pointed out that the appellant himself has declared the value of the property as Rs. 61,75,000/- but agitated the matter with regard to payment of Court fee. No doubt the plaintiff/appellant has not prayed for any consequential relief but in substances the suit is one for the cancellation of the sale-deed and as such it is covered by section 7 (iv-a) of the Act. No doubt, in the present suit no consequential relief has been claimed but the relief prayed squarely falls within the ambit of section 7 (iv-a) and as such the Trial Court rightly directed the appellant to pay necessary Court fee under section 7 (iv-a) of the Court Fees Act. 13. For the reason aforesaid we do not find any infirmity or illegality in the impugned order dated 9.7.2009 passed by Civil Judge (Senior Division) Mohanlalganj in Regular Suit No. 158 of 2009. 14. Accordingly the appeal is dismissed. 15. 13. For the reason aforesaid we do not find any infirmity or illegality in the impugned order dated 9.7.2009 passed by Civil Judge (Senior Division) Mohanlalganj in Regular Suit No. 158 of 2009. 14. Accordingly the appeal is dismissed. 15. Before parting with, we would like to mention that during the course of arguments, Counsel for the appellant has submitted that in the event this Court declines to entertain this appeal, the appellant may be granted a week's time to make good the deficiency for the Court fees. Therefore, liberty is granted to the appellant to make good the deficiency in Court fee within a week from the date of receipt of certified copy of this order. Appeal Dismissed.