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Madhya Pradesh High Court · body

2012 DIGILAW 121 (MP)

Tarun Malkapurkar v. Jitendra Agrawal

2012-01-27

N.K.MODY

body2012
ORDER Being aggrieved by the order dated 21.4.2011 passed by the Civil Judge Class II, Indore in Civil Suit No.69-A/2011, whereby application filed by the respondents No.1,4,5 and 6 under Order 7 Rule 11 CPC was allowed and the petitioner was directed to value the suit and pay the Court fees as per valuation of the suit, present petition has been filed. Short facts of the case are that petitioner filed a suit for declaration, possession and permanent injunction alleging that respondent No.1 is the person, who has prepared a forged power of attorney on 17.10.2008. It was alleged that respondents No.3 to 6 are the persons, who have prepared the forged documents. It was alleged that vide sale deed dated 13.2.2003 petitioner purchased the suit property from Kantabai W/o Modiram and Pankaj S/o Modiram through Power of Attorney Dharshanlal. It was alleged that petitioner was in occupation of the land from the time of purchase. It was alleged that petitioner took a loan from respondents No.1,4 and 5 on 22.7.2005 for business. It was alleged that at that time the forged document was prepared by the respondents. In the suit it was prayed that decree as prayed be passed in favour of the petitioner. In the suit an application was filed by the respondents under Order VII Rule 11 CPC, wherein it was prayed that suit has not been valued properly and also the Court fees was not paid as per the provisions of Court Fees Act, therefore, the suit be dismissed. After hearing the parties learned Court below passed the impugned order, against which present petition has been filed. Learned counsel for the petitioner argued at length and submits that impugned order is illegal, incorrect and deserves to be set aside. Learned counsel submits that since the petitioner is not a party to the document and the document is executed through Power of Attorney, therefore, learned Court below committed error in directing the petitioner to pay advalorem Court fees. Reliance is placed on a decision in the matter of Sunil Radhelia Vs. Awadh Narayan, reported in 2010(4) MPHT 477 , wherein Full Bench of this Court has held that when he plaintiff makes an allegation that the instrument is void, hence not binding on him, advalorem Court fee is not payable. Reliance is placed on a decision in the matter of Sunil Radhelia Vs. Awadh Narayan, reported in 2010(4) MPHT 477 , wherein Full Bench of this Court has held that when he plaintiff makes an allegation that the instrument is void, hence not binding on him, advalorem Court fee is not payable. It is submitted that petition filed by the petitioner be allowed and the impugned order be set aside. From perusal of the record it appears that for the purposes of possession the suit was valued at Rs.1,000/-and for the purposes of permanent injunction and mandatory injunction again the suit was valued at Rs.1,000/-and Rs.1,000/-, to talling Rs.3,000/-and the Court fees of Rs.622/-was paid. From the record it is evident that sale deed of which cancellation is sought is dated 24.6.2009 is valued at Rs.5 lac. On what basis the suit was valued at Rs.1,000/-is not clear from the record. From the impugned order it appears that learned Court below has nowhere stated that appellant has to pay the advalorem Court fees, on the contrary the learned Court below has stated that since the appellant is praying for a declaration to the effect that sale deed be declared as void and also praying for a decree of possession. Even if for the sake of arguments it is assumed that petitioner is not party to the transaction, then too the petitioner has to put valuation of the suit property as appellant is praying for a decree of possession. In view of this, this Court is of the view that learned Court below has committed no error in passing the impugned order. Accordingly the petition fails and is dismissed.