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Allahabad High Court · body

2016 DIGILAW 3118 (ALL)

SHIV SHANKER MUKHERJEE v. SANDEEP JAIN

2016-09-12

KRISHNA MURARI, PRASHANT KUMAR

body2016
JUDGMENT By the Court.—This First Appeal From Order filed under Section 6-A of the Court Fees Act, 1870 read with Section 104 C.P.C. arises out of the proceedings from O.S. No. 1361 of 2007 and is directed against the order dated 21.7.2016 passed by the Additional District Judge, Court No. 16, Allahabad whereby the issue No. (5) in respect of the payment of Court fees has been decided against the plaintiff-appellants. 2. The suit was filed by the plaintiff-appellants against the defendant-respondents claiming the following relief : 1. A decree of permanent injunction to restrain the defendant-respondents and their servants, agents, family members not to interfere in the ownership and possession of the plaintiffs over the suit property and not to dispossess them or raise any construction and not transfer it in favour of third person. 2. A decree of declaration to declare the registered sale-deed dated 23.8.2006 executed by the power of attorney holder of plaintiff-appellants No. 1 to 13 in favour of defendant-respondent Nos. 1 to 10 forcefully at gun point as void, ineffective and not binding upon the plaintiffs. 3. The suit was valued at Rs. 1 crore. Plaintiffs paid separate Court fees. In respect of first relief, they paid maximum Court fees of Rs. 500/-. In respect of second relief of declaration, the plaintiffs paid Court fees of Rs. 200/-. 4. An objection was raised by the defendant-respondents in their written statement that the suit was undervalued and Court fees paid was insufficient and it should have been paid ad-valorem. 5. Trial Court found that the suit has been properly valued and the Court fees paid for the relief of injunction is sufficient. The said part of the order is not under challenge in the present appeal. However, in respect of relief seeking declaration, the trial Court found that the Court fees paid is insufficient and ad-valorem Court fees is payable in accordance with Section 7(iv)(a) of the Court Fees Act, 1870 (for short the ‘Act’). 6. Learned counsel for the appellant vehemently contends that the trial Court has erred in law in directing the Court fees payable in terms of Section 7(iv)(a) of the Act. 6. Learned counsel for the appellant vehemently contends that the trial Court has erred in law in directing the Court fees payable in terms of Section 7(iv)(a) of the Act. It is further submitted that the relief claimed in the suit is only to declare the sale-deed void and no cancellation of the document was sought, hence, the ad-valorem Court fees was not payable and the plaintiffs are entitled to pay the fixed Court fees in accordance with the provisions Article 17 (iii) enumerated in Schedule II of the Act. 7. Sri B.C. Rai, learned counsel for the defendant-respondents refuting the arguments advanced on behalf of the appellants submits that relief of declaration is simply a camouflage and in effect the plaintiffs are seeking cancellation of a registered sale-deed and thus, they are liable to pay ad-valorem Court fees. It is also submitted that though only a declaratory decree is sought for but a plain reading of the plaint reveals that true substantial and main relief amounts to adjudging the registered sale-deed as null and void and without doing so, declaratory decree sought for cannot be granted and therefor, Section 7(iv) is not attracted and the case falls within the four corners of Section 7(iv)(a) making the plaintiffs liable to pay ad-valorem Court fees. 8. We have considered the argument advanced on behalf of the parties and perused the record. 9. The issue being raised is no longer res integra. In the case of Ajay Tiwari v. Hirday Ram Tiwari, 2006(7) ADJ 5 (DB), a Division Bench of this Court in reference to a registered sale-deed held that it is a document securing other other property within the meaning of Section 7(iv-A) of the Act and a suit for declaration of the sale-deed as null and void squarely falls within the four corners of Section 7(iv-A) and Article 17(iii) of Schedule-II which applies to suits not otherwise provided for in the Act does not come into play. 10. In the case of Her Highness Maharani Riwa Smt. Parveen Kumari v. Sangam Upnivesh Awas and Nirman Sahakari Samiti Ltd. and others, 2008(1) ADJ 449 (DB), another Division Bench of this Court has held that a declaratory relief coupled with injunction, cannot be a declaratory relief simplicitor so as to cover by Article 17(iii) of the Act and in such cases ad-valorem Court fees is to be paid. 11. 11. In Arun Kumar Tiwari v. Smt. Deepa Sharma and others, 2006(2) ADJ 542 (DB), another Division Bench of this Court has held that where the relief of injunction is consequential to the relief of declaration, the case is covered by Section 7(iv)(a) of the Court Fees Act and ad-valorem Court fees is to be paid on the entire valuation of the suit and Article 17 of Schedule-II of the Court Fees Act would not be applicable. 12. Reference may also be made to a Full Bench Decision of this Court in the case of Smt. Bibi and another v. Shugan Chand and others, AIR 1968 All 216 , wherein it has been held that in a suit for declaration that the sale-deed is unauthorised, void, illegal and ineffective as against plaintiff is for adjudging the sale-deed void or voidable and hence falls squarely within the four corners of Section 7(iv)(a) and Article 17(iii) of Schedule II is not attracted. 13. In the case of Chief Inspector of Stamps, U.P. Allahabad v. Mahanth Laxmi Narain and others, AIR 1970 All 488 , it has been held that for the purpose of Court fee, the Court must look at the relief as prayed for in the plaint. In order to ascertain the real nature of the reliefs claim, the substance of the plaint has to be considered. If a declaratory relief alone has been prayed for the Court cannot super add consequential relief which it thinks the plaintiff ought to have prayed for and treat it as a consequential relief. Likewise, if only a substantive relief is prayed for, it is not open to a Court to add or read a declaratory relief also into it and and treat it as a declaratory relief with a consequential relief. 14. The legal position is thus crystallised that the matter relating to valuation of suit and payment of Court-fee solely rest upon the pleadings and the relief claimed in a particular suit. This controvery stands settled by decision of the Hon’ble Apex Court in the case of Shailendra Bhardwaj and others v. Chandra Pal and another, (2013) 1 SCC 579 . It may be relevant to quote the paragraphs 8, 9, 10 & 11 which read as under : “8. This controvery stands settled by decision of the Hon’ble Apex Court in the case of Shailendra Bhardwaj and others v. Chandra Pal and another, (2013) 1 SCC 579 . It may be relevant to quote the paragraphs 8, 9, 10 & 11 which read as under : “8. On comparing the above mentioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale-deed on the question of payment of Court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. 9. The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that payment of Court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the Court fees have to be commuted according to the value of the subject-matter and the trial Court as well as the High Court have correctly held so. 10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a case in which this Court was dealing with Section 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case.” 11. Plaintiff, in the instant case, valued the suit at Rs. 30 Lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of Court fee, the plaintiff paid a fixed Court fee of Rs. 200/- under Article 17(iii) of Schedule II of the Court Fees Act. Plaintiff had not noticed the fact that the above mentioned article stood amended by the State, by adding the words “not otherwise provided by this Act”. Since Section 7(iv-A) of the U.P. Amended Act specifically provides for payment of Court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable.” 15. Relying upon the law propounded by Hon’ble Apex Court in the case of Shailendra Bhardwaj (Supra), two Division Bench presided over by one of us (Krishna Murari, J) in the case of Badri Prasad and others v. Gyan Prakash and others, 2015(5) ADJ 1504 and Ashok Kumar Singh v. Meera Rathore and others, 2016(4) ADJ 257 , have taken the same view. 16. 16. From a perusal of settled proposition of law by aforesaid pronouncements, the decree of declaration cannot be granted without declaring the sale-deed as null and void and thus the Court fee is payable in accordance with Article 17(iii) of Schedule II of the Act inasmuch as until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties as held by the Hon’ble Apex Court in the case of Smt. Ramti Devi v. Union of India, 1995 (1) SCC 198 . 17. In view of the aforesaid facts and discussions, we are of the opinion that the trial Court has rightly answered the issue for payment of Court fees in accordance with Section 7(iv)(a) of the Court Fees Act, 1870 and committed no error of law. 18. The appeal is thus bereft of merits and accordingly stands dismissed.