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2014 DIGILAW 1043 (MP)

Saya Jeet v. Balle Singh @ Balram

2014-08-21

ROHIT ARYA

body2014
ORDER 1. Defendant/petitioner by this petition under Article 227 of the Constitution of India has questioned the legality, validity and propriety of order dated 4.1.2013 passed in Civil Suit No.16-A/2012 by 14th Additional District Judge, Gwalior. By the aforesaid order, defendant’s application under Order 7 rule 11 CPC has been rejected. 2. Facts necessary for disposal of this petition are to the effect that plaintiffs have filed a suit for declaration and permanent injunction inter alia contending that plaintiffs No.2 and 3 are sons of plaintiff No.1 and thus are members of one family. They owned agricultural land ad-measuring 0.303 hectare falling in survey No.301 in village Gudha Lashkar, Gwalior. An area of 0.177 hectare has already been sold and remaining area of 0.126 hectare is in possession of plaintiffs; whereupon, they have constructed a residential house with boundary wall. In the plaint para 2, it has been pleaded that defendant No.1 in collusion with some persons has prepared forged documents dated 12.1.2012 in relation to the suit land and on strength thereof since have tried to dispossess the plaintiffs, instant suit was filed for declaration and permanent injunctions. It is submitted that none of the plaintiffs have either signed or executed the alleged sale deed. That apart, the aforesaid forged document bears wrong description of the boundaries of the suit land. It is submitted that no sooner did the plaintiffs come to know about the aforementioned forged documents, they filed a police complaint in police station on 29.3.2012 against the defendant and the alleged witnesses to the sale-deed dated 12.1.2012 for offence under sections 420, 467, 468, 471, 120B and 506 of IPC and copy of the same has also been sent through registered post to Superintendent of Police, Gwalior. But no action was taken instead defendant alleged to have been provided help by the local police for dispossession of the plaintiffs. With aforesaid pleadings, plaintiff has prayed for declaration that the alleged sale-deed be declared as null and void with further relief for protection of their possession by decree of permanent injunction. Suit has been accordingly valued for declaration at Rs.10 lacs and for permanent injunction at Rs.200/- and accordingly plaintiffs have paid fixed Court fees of Rs.2,100/-. 3. With aforesaid pleadings, plaintiff has prayed for declaration that the alleged sale-deed be declared as null and void with further relief for protection of their possession by decree of permanent injunction. Suit has been accordingly valued for declaration at Rs.10 lacs and for permanent injunction at Rs.200/- and accordingly plaintiffs have paid fixed Court fees of Rs.2,100/-. 3. Thereafter, defendant filed an application under Order VII rule 11 CPC on the premise that plaintiffs in order to avoid sale-deed dated 12.1.2012 , have not paid the ad valorem court-fees under section 7(iv)(d) of the Courts-fees Act. 4. Trial Court by the impugned order has rejected the application of the defendant primarily on the premise that plaintiffs have not executed the alleged sale deed and no consideration has been passed on. Defendant has forged a document in collusion with others styling the same as sale deed. Plaintiffs have already filed a criminal complaint against defendants in the concerned police station and copy whereof has already been sent to Superintendent of Police, Gwalior. None of the plaintiffs, is party to the alleged sale deed. The aforesaid order has been passed relying upon a number of judgments delivered by Hon’ble Supreme Court as well as by this High Court. 5. Defendant has questioned the impugned order inter alia contending that trial Court ought to have considered that plaintiffs in order to avoid the sale deed dated 12.1.2012 have filed the suit seeking declaration that alleged sale-deed is null and void either plaintiffs are party to it or not, they are required to affix ad valorem court-fees and not the fixed court-fees under section 7(iv)(d) of the Court-fees Act. 6. Section 7(iv) of the Court-fees Act provides that suit of the nature falling under section 7(iv) of the Act, plaintiff is required to affix the court fees on the amount at which the value of the relief is sought. It is from this valuation, the jurisdiction of the Court is determined. Decision of Hon’ble apex Court in the matter of S.Rm.Ar.S. S.P. Sathappa Chettiar v. S.Rm.Ar.Rm. Ramanathan Chettiar [ AIR 1958 SC 245 ], is referred. 7. There is no cavil of doubt that the court-fees payable on a plaint is to be decided on the basis of allegations made in the plaint and substantive relief sought. Decision of Hon’ble apex Court in the matter of S.Rm.Ar.S. S.P. Sathappa Chettiar v. S.Rm.Ar.Rm. Ramanathan Chettiar [ AIR 1958 SC 245 ], is referred. 7. There is no cavil of doubt that the court-fees payable on a plaint is to be decided on the basis of allegations made in the plaint and substantive relief sought. The question as to whether the suit valued by the plaintiff, is correctly arrived at or not, is of no consequence to the Court at that stage. Pleadings in the suit have to be understood in entirety to draw the nexus of the ultimate relief sought for in the plaint. Mere on assumption being drawn, the plaint will not alleged to come in the way while the Court examines and reaches the conclusion as regards substantial relief. The Full Bench of the Lahore High Court in MT. Zebul-Nisa and otehrs v. Chaudhri Din Mohammad and others [AIR 1941 Lahore 97], has held as under : “The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Article 17(iii) of the Act.” 8. In the instant case as mentioned hereinabove the plaintiff has filed the suit on the premise that sale-deed dated 12.1.2012 is a forged and fabricated document prepared in collusion with others. Even the same is not signed or executed by the plaintiff. Besides, plaintiffs have also lodged a complaint to local police station and copy of the same has also been forwarded to the concerned Superintendent of Police. Aforesaid pleadings, if juxtapositioned with the relief sought by the plaintiff on the aforesaid allegation, substantive relief claimed by the plaintiff is a mere pure and simple declaration. As such the suit is covered by Article 17(iii) of the Act. Another question, which may come, is with regard to construction of document whether void or voidable, with due regard plaint allegations to ascertain the substantive relief sought for the purpose of court-fees. As such the suit is covered by Article 17(iii) of the Act. Another question, which may come, is with regard to construction of document whether void or voidable, with due regard plaint allegations to ascertain the substantive relief sought for the purpose of court-fees. This aspect is lucidly explained by Hon’ble Supreme Court in the case of Ningawwa v. Byrappa Shiddappa Kireknrabar and others [ AIR 1968 SC 956 ], wherein it has been held by Hon’ble Supreme Court that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. However, on discovering the fraud, the party defrauded may elect whether he shall continue to treat the contract as binding or disaffirm the contract and resume the property. The party defrauded may keep the question open so long as he does nothing to affirm the contract. In para 5 it has been further held by Hon’ble Supreme Court that legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. 9. The judgment of a Division Bench of this Court as cited by the petitioner in the matter of Ambika Prasad and others v. Shri Ram Shiromani @ Chandrika Prasad Dwivedi and another [2010 Legal Eagle (M.P.) 1540], is quite distinguishable looking to the facts and circumstances of the present case and as discussed hereinabove, and therefore has no applicability to the facts and circumstances of the present case. 10. Now applying the above principle to the facts in hand, the document alleged to be a sale-deed as per the plaint allegation is not even signed by the plaintiffs and no consideration has ever passed. 10. Now applying the above principle to the facts in hand, the document alleged to be a sale-deed as per the plaint allegation is not even signed by the plaintiffs and no consideration has ever passed. On allegation that the document is forged and fabricated, as such the document in question is a misrepresentation of fraud as regard its character as well as its contents and therefore, is void document. Hence, the plaintiff is required to pay fix court-fees and not the ad valorem court-fees for the substantive relief of declaration sought. In the opinion of this Court, trial Court has not committed any error of law or jurisdiction while dismissing the application under Order VII rule 11 of CPC. Petition sans merits and is hereby dismissed. .............