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Madhya Pradesh High Court · body

2013 DIGILAW 1095 (MP)

Gwalior Development Authority v. Kok Singh

2013-09-10

Sujoy Paul

body2013
ORDER 1. By invoking the jurisdiction of this Court under Article 227 of Constitution, petitioners have challenged the order passed by the Court below in case No. 5/2010 dated 26.10.2010 whereby their application preferred under Order VII Rule 11 of CPC Annexure P/10 was rejected by the Court below. The brief facts necessary for adjudication of present petition are as under: 2. Respondent/plaintiff filed a civil suit for declaration and permanent injunction. In the said suit, he prayed that he be declared Bhumiswami of the suit land. The agreement dated 12.5.1989 be set aside. It is further prayed that a permanent injunction be issued against the defendants restraining them to dispossess the plaintiff. 3. Petitioners/defendants filed the written statement and also filed an application under Order VII Rule 11 of CPC. An objection is taken that plaintiff/respondent is admittedly party to the agreement dated 12.5.1989 and therefore, he has to pay the ad valorem court fee as per section 7 (iv) (c) of the Court Fees Act, 1870. 4. Plaintiff/respondent filed his reply. The Court below by impugned order rejected the said contention on the ground that the application under Order VII Rule 11 of CPC cannot be entertained at this stage. It can be decided after framing of issues and after leading the evidence. Criticizing the said order, Shri Dixit petitioners’ learned counsel submits that this is settled in law that for the purpose of deciding objections under Order VII Rule 11 of CPC only the plaint averments are to be seen. Even as per plaint averments, it is clear that the plaintiff/respondent is party to the agreement dated 12.51989. There was no occasion for the Court below to hold that the said question cannot be decided before framing of issues and leading evidence. Reliance is placed on the agreement dated 12.5.1989 (page 48) which clearly shows that the plaintiff is party to the agreement. 5. Per contra, Shri Shukla, respondent’s learned counsel submits that petitioners assailed this order by preferring Civil Revision No. 08/2011. The said Civil Revision is dismissed and therefore, this petition is not maintainable. By relying on the principle of estoppel and (2005) 1 SCC 787 {Bhanu Kumar Jain v. Archana Kumar and another}, it is contended that the principle of res-judicata and estoppel will be applicable in the present case and after having failed in Civil Revision No. 08/2011, present petition is not tenable. By relying on the principle of estoppel and (2005) 1 SCC 787 {Bhanu Kumar Jain v. Archana Kumar and another}, it is contended that the principle of res-judicata and estoppel will be applicable in the present case and after having failed in Civil Revision No. 08/2011, present petition is not tenable. Shri Shukla relied on AIR 1961 SC 1299 {Sri Rathnavarmaraja v. Smt. Vimla} to bolster his submission that the question of court fee on a plaint is basically an issue between the plaintiff and State Government. Defendants have no right to agitate this issue by filing civil revision. 6. I have bestowed my anxious consideration on the rival contentions of parties and perused the record. I deem it proper to first deal with the objections of Shri Shukla regarding maintainability of this petition after dismissal of aforesaid Civil Revision. 7. A bare perusal of order passed by this Court in Civil Revision No. 08/2011 dated 11.7.2013 shows that the petitioners invoked the jurisdiction of this Court under section 115 of CPC but the Court in paragraph 6 has given specific finding that with regard to relief arising out of application preferred under Order VII Rule 11 of CPC, civil revision is not maintainable. The Court entertained the civil revision with regard to other claim and issues of the impugned order and reserved the liberty to the petitioners to avail the remedy available to them under the law against rejection of their objections in relation to inappropriate valuation of the suit and deficit court fee. On the strength of this liberty given by the revisional Court, present petition under Article 227 of Constitution is filed. In view of express liberty given, no fault can be found in filing the present petition by the petitioners. Estoppel or res-judicata has no application when the issues regarding valuation of suit and deficit court fee is not decided by the revisional Court and liberty is reserved to avail the proper remedy. The judgment in Bhanu Kumar Jain (supra) has no application in the facts and circumstances of the case. So far second objection regarding right of defendants to raise the question of proper court fee is concerned, in the opinion of this Court the judgment of apex Court in Smt. Vimla (supra) is of no assistance to the respondent. The judgment in Bhanu Kumar Jain (supra) has no application in the facts and circumstances of the case. So far second objection regarding right of defendants to raise the question of proper court fee is concerned, in the opinion of this Court the judgment of apex Court in Smt. Vimla (supra) is of no assistance to the respondent. In the said case, the apex Court has given finding by considering the provisions of Suit Valuation Act, 1955 and as per section 12(2) of Madras Court Fees and Suit Valuation Act. In the said judgment, the apex Court did not consider the aspect regarding rejection of application under Order VII Rule 11 of CPC. It cannot be doubted that the question of proper valuation is one of the ingredients in Order VII Rule 11 of CPC. If such objection preferred, under Order VII Rule 11 of CPC is erroneously rejected, it can always be challenged by filing appropriate proceedings. In absence of considering the aforesaid aspects in the judgment by Supreme Court, the said judgment is distinguishable and cannot be mechanically applied herein. This is settled in law that a judgment is binding on a question which has been expressly decided and judgment cannot be binding precedent on the principle that inference can be logically drawn from it. In catena of judgment, it has been held that the decision of Court should be understood in the facts situation of the case. The factual context has to be kept in mind. This view is taken by the apex Court in (2006) 1 SCC 368 {Union of India and another v. Major Bahadur Singh} and (2003) 1 SCC 289 {Ram Prasad Sarma v. Mani Kumar Subba and others}. It is further held that judgment cannot be construed as an statute and blind reliance on a judgment without considering the facts situation is unjustifiable. This view is taken by Supreme Court in (2003) 2 SCC 111 {Bhavnagar University v. Palitana Sugar Mill (P) Ltd. And others} and followed by this Court in 2010 (1) MPWN 70 = 2010 (1) MPLJ 321 {Bihar School Examination Board v. Suresh Prasad Sinha}. In the light of aforesaid, I am unable to hold that the order impugned deciding the application under Order VII Rule 11 of CPC can not be made subject of judicial review under Article 227 of Constitution. 8. In the light of aforesaid, I am unable to hold that the order impugned deciding the application under Order VII Rule 11 of CPC can not be made subject of judicial review under Article 227 of Constitution. 8. I find force in the contention of Shri Dixit that for an application under Order VII Rule 11 of CPC plaint averments are to be seen. Shri Shukla has not disputed that plaintiff/respondent was party to the agreement dated 12.5.1989. Thus, the Court below in my opinion has erred in not deciding the aspect of question of payment of proper court fee. In view of factual material available, the Court below should have decided the matter and should not have postponed the matter for framing of issues and recording of evidence. The order in my opinion suffers from serious procedural irregularity and impropriety. The apex Court in Suhrid Singh @ Sardool Singh v. Randhir Singh and others reported in 2010 AIR SCW 3308 opined as under: Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’ – two brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently ‘A’ wants to avoid the sale. ‘A’ has to sue for cancellation of the deed. On the other hand, if ‘B’ who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of Second Schedule of the Act. But if ‘B’ a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court-fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of section 7. 7. If the example given in Suhrid Singh (supra) is applied in the present case, it will be clear that since the plaintiff/respondent is party to the agreement and he has challenged its cancellation, he has to pay ad valorem court fee. A Division Bench of this Court in 2011 (2) MPHT 488 {Ambika Prasad and others v. Shri Ram Shiromani @ Chandrika Prasad Dwivedi and another} followed the same ratio. Thus, I deem it proper to allow this application on the question of court fee by holding that plaintiff/respondent is bound to pay ad valorem court fee. 10. On the basis of aforesaid analysis, the impugned order to the extent challenged herein is set aside by holding that the plaintiff/respondent shall pay ad valorem court fee. Petition is allowed. No costs.