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2013 DIGILAW 174 (MP)

Ajay Pratap Singh v. Kuldeep Singh

2013-02-08

SUJOY PAUL

body2013
JUDGMENT : This petition under Article 227 of the Constitution is directed against order dated 17-7-2012 passed by the ADJ (FT), Mungawali in Case No. 19-A72010. By the order impugned, a preliminary issue No. 4 is decided by the Court below regarding proper valuation of the suit and payment of Court-fees on it. 2. The singular question involved in this matter is whether plaintiff was to pay ad valorem Court-fee and whether the order passed by the Court low directing otherwise is bad in law. It is not in dispute between the parties that the plaintiff was not executant/party to the sale deed and a relief is prayed by the plaintiff to declare the sale deed dated 29-5-2010 between defendant Nos. 1 to 4 and defendant Nos. 5 to 9 as void and ineffective qua the plaintiff. In the aforesaid Actual background, it is to be decided as to whether plaintiff is required to pay ad valorem Court-fee. 3. Shri Santosh Agrawal, learned Counsel for the petitioners, in support of his contention relied on Santosh Chandra and others Vs. Cyan Sunder Bai and others, 1970 JLJ 290 (FB), Manzoor Ahmed Vs. Jaggi Bai and others, 2009(4) M.P.H.T. 347 (DB) = 2009 (4) MPLJ 182 , Sunil Vs. Awadh Narayan and others, 2010(4) M.P.H.T. 477 (FB) = 2010 (4) MPLJ 431 (FB) and Israt Jahan Vs. Rajia Begum and others, 2010(1) M.P.H.T. 338 (DB) = 2010 (1) MPLJ 50 (DB). He submits that in the light of the aforesaid judgments and relevant provision of the Court-fees Act, the Court below has erred in deciding the issue aforesaid in favour of the plaintiff. 4. Shri B.S. Bhadoria, learned Counsel for respondent Nos. 2 to 5, supported the stand of the petitioners. He submits that initial plaint was subsequently amended thereby praying for a consequential relief, and therefore, ad valorem Court-fee was required to be paid. He further submits that amended relief whereby it is prayed that the sale deed, dated 29-5-2010 be declared null and void and ineffective qua plaintiff amounts to seeking quashment of the sale deed in question, and therefore, ad valorem Court-fee is required to be paid. 5. Per contra, Shri N.K. Gupta, learned Counsel for respondent No. I/plaintiff, submits that initially the suit was filed with the prayer that plaintiff be declared owner of the suit land. 5. Per contra, Shri N.K. Gupta, learned Counsel for respondent No. I/plaintiff, submits that initially the suit was filed with the prayer that plaintiff be declared owner of the suit land. However, later on, an amendment was incorporated whereby it is prayed that sale deed dated 29-5-2010 entered into between defendant Nos. 1 to 4 and defendant Nos. 5 to 9 be declared invalid and ineffective qua the plaintiff. He submits that there is a world of difference where a prayer is made for setting aside a sale deed by the executant of the said sale deed or a party to a sale deed and where it is by a person who is not a party to the sale deed but prays for declaring that it is not binding on him. He relied on Santosh Chandra (supra) and Ambaram Vs. Smt. Pramilabai and others, 1997 (1) JLJ 136 . 6. I have heard learned Counsel for the parties and perused the record. 7. The pivotal question is that when admittedly the plaintiff is not a party to the sale deed; whether relief claimed by him brings his case liable for payment of ad valorem Court-fee ? 8. In Santosh Chandra (supra), the Full Bench of this Court opined as under:- "But, however, where a plaintiff is not a party to such a decree, agreement, instrument or liability and he cannot be deemed to be a representative in interest of the person who is bound by that decree, agreement, instrument or liability, he can sue for a declaration simpliciter, provided he is also in possession of the property. The matter may be different if he is not in possession of the property. In that event, the proviso to Section 42 of the Specific Relief Act might be a bar to the tenability of a suit framed for the relief of declaration simpliciter. But that would be a different aspect. All the same, if the plaintiff is not bound by that decree or agreement or liability and if he is not required to have it set aside, he can claim to pay Court-fees under any of the sub-clauses of Article 17, Schedule II of the Court-fees Act." Another Full Bench of this Court considered this judgment in Sunil (supra). All the same, if the plaintiff is not bound by that decree or agreement or liability and if he is not required to have it set aside, he can claim to pay Court-fees under any of the sub-clauses of Article 17, Schedule II of the Court-fees Act." Another Full Bench of this Court considered this judgment in Sunil (supra). In Ambaram (supra), the Indore Bench by relying Santosh Chandra (supra), opined that when plaintiff is not party to sale deed and possession of disputed land is with the plaintiff, no ad valorem Court fee is required to be paid. In the present case, in the pleadings, the plaintiff has specifically pleaded that he is in possession. Interestingly, in a recent judgment the Division Bench of this Court in Ambika Prasad and others Vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi and another, 2011(2) M.P.H.T. 488 (DB) = 2011 (3) MPLJ 184 , again considered the Full Bench judgment in Sunil (supra). 9. Pausing here for a moment, it is profitable to quote a relevant para from the judgment of Supreme Court in the case reported in 2010 AIR SCW 3308, Suhrid Singh Vs. Randhir Singh. The relevant portion of the judgment reads as under:- "6. 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 non-est/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. 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." 10. By way of the above Illustrations 'A' and 'B', the Supreme Court has answered the issue in a very simple manner that where the executant of the sale deed wants it to be annulled, he has to seek cancellation of that deed for which ad valorem Court-fee on the consideration stated in the sale deed is payable. 11. The Apex Court earlier in Government of Orissa Vs. Ashok Transport Agency, (2002) 9 SCC 28 , explained the distinction between the meaning void and voidables acts. In that case, it was held that one type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same, no declaration is necessary as law does not take any notice of the same and they can be disregarded in collateral proceeding. As per the said judgment, the other type of void act like transaction against a minor without being represented by a next friend is a good transaction against the whole world but if the minor decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding, the transaction becomes void from the very beginning. The Apex Court referred to yet another type of void act which may be not a nullity but for avoiding the same a declaration has to be made. It observed that voidable act is that which is a good act unless avoided for instance if a suit is filed for declaration that a document is fraudulent or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. 12. It observed that voidable act is that which is a good act unless avoided for instance if a suit is filed for declaration that a document is fraudulent or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. 12. In the present case, admittedly the plaintiff is not the executant of the sale deed sought to be declared as void. Accordingly, in view of Suhrid Singh (supra), the plaintiffs case is covered by the underlined portion quoted above and is covered by Example 'B'. 13. In Ambika Prasad (supra), the Division Bench has taken note of the Full Bench judgment rendered in Sunil (supra) and then observed that the Full Bench in Sunil (supra) has not taken note of Suhrid Singh (supra), and if the said judgment of the Supreme Court would have been brought to the notice of the Hon'ble Judges of the Full Bench, in all probability, they too would have taken the view which was taken in Ambika Prasad (supra). 14. In view of the judgment of the Supreme Court in Suhrid Singh (supra), the case of the plaintiff is on a different footing qua the case of a litigant who is party to a sale deed. Since plaintiff is not a party to the sale deed and is only seeking a declaration that sale deed be declared null and void qua him, his case is on different footing. In that eventuality, as per Suhrid Singh (supra), he is not required to pay ad valorem Court-fee. Apart from this, in Sunil (supra) also, the Full Bench opined that ad valorem Court-fee is not payable when the plaintiff makes an allegation that instrument is void and hence not binding upon him. 15. In view of the binding judgment of the Supreme Court in Suhrid Singh (supra), followed by Division Bench judgment, in my opinion, the Court below has not committed any error in passing the impugned order. Accordingly, I find no reason to interfere in the impugned order. Petition sans substance and is hereby dismissed.