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Madhya Pradesh High Court · body

2011 DIGILAW 820 (MP)

Harinarayan v. Gulabchandra

2011-07-27

N.K.MODY

body2011
JUDGMENT N.K. Mody, J. 1. Being aggrieved by the order dated 1-10-10 passed by Civil Judge, Class 11, Sitamhow in Civil Suit No. 116-A/08, whereby learned Trial Court directed the Petitioner to pay ad valorem Court fee on the market value of the suit property, present petition has been filed. 2. Short facts of the case are that the Petitioner filed a suit for declaration to the effect that the sale deed dated 11-6-08 executed by Respondent Nos. 1 and 2 in favour of Respondent Nos. 3 and 4 be declared void so far as it relates to the share of Petitioner and also permanent injunction. The suit was contested by the Respondent Nos. 3 and 4, who have purchased the property from Respondent Nos. 1 and 2, wherein it was alleged that the Petitioner cannot challenge the validity of the sale deed unless and until Petitioner pays the ad valorem Court fee. It was alleged that the Respondent Nos. 1 and 2 sold the property to Respondent Nos. 3 and 4 for a consideration of Rs. 5,51,000/-, therefore, Petitioner is liable to pay ad valorem Court fee. It was prayed that the Petitioner be directed to pay ad valorem Court fee on the amount of sale deed. The application filed by Respondent Nos. 3 and 4 under Order VII Rule 11, Code of Civil Procedure was opposed by the Petitioner on various grounds including on the ground that since the Petitioner is not party to the sale deed, therefore, Petitioner is at liberty to value the suit as per his discretion and is not liable to pay ad valorem Court fee. It was prayed that the application be dismissed. After hearing the parties, learned Trial Court allowed the application filed by Respondent Nos. 3 and 4 and directed the Petitioner to pay ad valorem Court fee, against which present petition has been filed. 3. Learned Counsel for the Petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that since the Petitioner was not party to the sale deed, therefore, learned Court below committed error in holding the Petitioner liable for payment of ad valorem Court fee. It is submitted that since the Petitioner was not party to the sale deed, therefore, learned Court below committed error in holding the Petitioner liable for payment of ad valorem Court fee. Learned Counsel placed reliance on a decision in the matter of Sunil v. Awadh Narayan 2010 (4) M.P.H.T. 477 (FB) : 2010 (4) MPLJ 431 , wherein Full Bench of this Court had an occasion to take into consideration Section 7(iv)(c) and Schedule II, Article 17 (iii) of the Court Fees Act and held that when the Plaintiff makes an allegation that the instrument is void and hence not binding on him and a declaration simplicitor is prayed, then he is not required to pay ad valorem Court fee. In such case, a fixed Court fee under Article 17, Schedule II of the Court Fees Act will be payable. It was further held that in a suit for permanent injunction and for declaration, when document was alleged to be illegal, void and executant had not signed the document, it was not necessary to make payment of ad valorem Court fee. On the strength of aforesaid position of law, learned Counsel submits that the petition filed by the Petitioner be allowed and the impugned order whereby Petitioner has been directed to pay ad valorem Court fee be set aside. 4. Learned Counsel for Respondent Nos. 3 and 4 submitted that the Petitioner is not a stranger, but son of Respondent No. 1 and brother of Respondent No. 2. It is submitted that the Petitioner is claiming his right over the suit property through Respondent No. 1. It is submitted that since Respondent No. 1 has sold the property to the Petitioner and the Petitioner is challenging the validity of the sale deed, therefore, Petitioner is bound to pay ad valorem Court fee. Learned Counsel placed reliance on a decision in the matter of Ashok Kumar v. Hari Shankar 1987 (II) MPWN Note 33, wherein sale deed challenged as fraudulent and without consideration, this Court held that ad valorem Court fee on amount of consideration is payable. Reliance is also placed on a decision in the matter of Israt Jahan v. Rajlia Begum 2010 (1) MPLJ 50 , wherein suit for declaration that the registered sale deed executed by husband of the Plaintiff No. 1 and father of Plaintiff Nos. Reliance is also placed on a decision in the matter of Israt Jahan v. Rajlia Begum 2010 (1) MPLJ 50 , wherein suit for declaration that the registered sale deed executed by husband of the Plaintiff No. 1 and father of Plaintiff Nos. 2 to 7 is illegal and void and the suit was valued for the purpose of declaration at Rs. 5,64,400/- being the valuation of sale deed, Divisional Bench of this Court held that the sale deed would be governed by Section 7(iv)(c) and an ad valorem Court fees would be payable as setting aside the sale deed is implicit in the declaratory relief sought by the Plaintiff. On the strength of aforesaid position of law, learned Counsel submits that the petition filed by the Petitioner be dismissed. 5. Learned Counsel for Respondent No. 5/State submits that the Petitioner has not valued the suit property. It is submitted that the Petitioner has paid the fix Court fee, while Petitioner is bound to pay the Court fee as per Article 1-A of Schedule I of Court Fees Act, which lays down that the ad valorem Court fee has to be paid. It is submitted that in the facts and circumstances of the case, petition filed by the Petitioner be dismissed. 6. From perusal of the record it is evident that Respondent No. 1 is father of Petitioner while Respondent No. 2 is brother of the Petitioner. Respondent Nos. 1 and 2 have sold the property to Respondent Nos. 3 and 4 vide registered sale deed dated 11-6-08. The property is an agricultural land situated at Village Risthal. Claim of the Petitioner is that the Petitioner has got interest in the suit property vide Will dated 15-7-96 executed by deceased Kashiram and the Petitioner got share in the suit property in a partition. Relief claimed by the Petitioner is that the sale deed executed by Respondent Nos. 1 and 2 is void to the extent of the share of the Petitioner. 7. Section 7(iv)(c) of Court Fees Act reads as under: 7. Relief claimed by the Petitioner is that the sale deed executed by Respondent Nos. 1 and 2 is void to the extent of the share of the Petitioner. 7. Section 7(iv)(c) of Court Fees Act reads as under: 7. Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (a) *** *** *** (b) *** *** *** (c) for a declaratory decree and consequential relief--to obtain a declaratory decree or order, where consequential relief is prayed; In all such suits the Plaintiff shall state the amount at which he values the relief sought. Schedule I of the Court Fees Act deals with the cases in which ad valorem Court fees is payable. Schedule II deals with the fixed Court fees. Sub-clause (iii) of Article 17 reads as under: 17. Plaint or memorandum of appeal in each of the following suits: (i) *** *** *** (ii) *** *** *** (iii) to obtain a declaratory decree where no consequential relief is prayed; When presented to the Court of Five Hundred Rupees Civil Judge Class II When presented to the Court of Civil Judge Class I One Thousand Rupees When presented to the Court of ADJ or DJ Two Thousand Rupees. 8. Since the Petitioner is not party to the sale deed which were executed by Respondent Nos. 1 and 2 in favour of Respondent Nos. 3 and 4 and the allegation of the Petitioner in the plaint is that the sale deed is void to the extent of his share, therefore, learned Court below was not correct in holding that the Petitioner is liable to pay ad valorem Court fee. In view of this, petition filed by the Petitioner is allowed and the impugned order passed by the learned Court below whereby learned Court below has directed the Petitioner to value the suit as per value of the sale deed and pay the ad valorem Court fee cannot be allowed to sustain. In view of this, petition filed by the Petitioner is allowed and the impugned order stands set aside with a direction to the learned Court below to proceed with the case in accordance with law. 9. With the aforesaid observations, petition stands disposed of.