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2016 DIGILAW 317 (ORI)

Koutiki Sahu v. Basant Kumar Nepak

2016-04-20

A.K.RATH

body2016
JUDGMENT : Dr. A.K.Rath, J. This petition challenges the order dated 19.1.2009 passed by the learned Civil Judge (Junior Division), Berhampur in C.S. No.92 of 2008. By the said order, learned trial court rejected the application of the defendants under Order 7 Rule 10 and 11 CPC. 2. Opposite party as plaintiff instituted C.S. No.92 of 2008 in the court of the learned Civil Judge (Junior Division), Berhampur with the following reliefs: “(i) to pass a decree declaring the alleged document/sale deed No.4659 executed and registered on 12.08.08 by the defendant no.2 Prafulla Chandra Nepak and his son Pradeep Kumar Nepak in favour of the Defendant No.1 Koutuki Sahu as invalid and illegal and not binding on the plaintiff & no right, title and interest under the above said alleged sale deed is passed to defendant no.1. (ii) to pass a decree with a consequential relief of injunction restraining the Defendant No.1 and her men to enter into and interfere with in the peaceful possession and enjoyment of the suit schedule property by the cosharers of co-parcenery in any manner whatsoever and restraining the defendant No.1 taking possession and/or remaining in possession of suit schedule property. (iii) any relief/reliefs may be granted as the Hon’ble Court deems fit and proper in the circumstances of the case. (iv) and cost of the suit in favour of the plaintiff.” 3. The case of the plaintiff is that the suit schedule property is the joint family property. In the partition, the same was allotted in favour of Narayan Nepak, father of the plaintiff and defendant no.2. Narayan died leaving behind the plaintiff, defendant no.2 and nine other legal heirs and successors. Narayan instituted T.S. No.51 of 1992 in the court of learned Sub-Judge, Berhampur for partition of the suit property. He died in the year 1995 and the suit was abated. Thereafter, Pratima Kumari Devi, sister of the plaintiff instituted T.S. No.60 of 1996 in the same court for partition of the suit schedule property. The suit schedule property is a part of and the subject-matter of dispute in T.S. No.60 of 1996. The settlement authority recorded the land in favour of Narayan. During pendency of the suit, defendant no.2, one of the co-parcener along with his son alienated the land to defendant no.1 by means of registered sale deed no.4659 dated 12.8.2008. The suit schedule property is a part of and the subject-matter of dispute in T.S. No.60 of 1996. The settlement authority recorded the land in favour of Narayan. During pendency of the suit, defendant no.2, one of the co-parcener along with his son alienated the land to defendant no.1 by means of registered sale deed no.4659 dated 12.8.2008. The alleged sale deed contains the recital that the suit schedule property fell to the share of the defendant no.2 in oral partition. But then, there is no partition between the parties. The sale deed is illegal and inoperative. With this factual scenario, the suit was filed seeking the reliefs mentioned supra. 4. Pursuant to issuance of summons, defendant no.1 entered appearance and filed comprehensive written statement denying the assertions made in the plaint. 5. While the matter stood thus, the defendant no.1 filed an application under Order VII Rule 10 and 11 CPC praying therein to dismiss the suit or in alternative to return the plaint. It is stated that the suit is not maintainable in the absence of any other co-sharers. Further, valuation of the suit is Rs.2,66,000/-. The court has no jurisdiction to entertain the suit. By order dated 19.1.2009, learned trial court rejected the application. 6. Heard Mr. L. Samantray along with Mr. R.L. Pradhan, learned counsel for the petitioner and Mr. S.K. Pradhan, learned counsel for the opposite party. 7. Really two points arise for consideration; I. Whether defendant no.1 has the locus standi to challenge the valuation of the suit ? II. Whether the plaintiff shall pay the ad valorem court fees in a suit for a declaration that the registered sale deed no.4659 dated 12.8.2008 executed by defendant no.2 in favour of defendant no.1 as invalid, illegal and not binding on him ? Point No.I 8. The subject-matter of dispute is no more res integra. In Mahasay Ganesh Prasad Ray and another Vrs. Narendra Nath Sen and others, AIR 1953 SC 431 , the apex Court held that the payment of court fees is a matter primarily between the plaintiff and Government. The said dicta were reiterated in Sri Rathnavarmaraja Vrs. Smt.Vimla, AIR 1961 Supreme Court 1299. In Mahasay Ganesh Prasad Ray and another Vrs. Narendra Nath Sen and others, AIR 1953 SC 431 , the apex Court held that the payment of court fees is a matter primarily between the plaintiff and Government. The said dicta were reiterated in Sri Rathnavarmaraja Vrs. Smt.Vimla, AIR 1961 Supreme Court 1299. In paragraph-2 of the said report, the apex Court held as follows: “(2) The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate 6 what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under S. 115 of the Code of Civil Procedure is strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to more the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to more the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court-fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the court. Reliance in support of that contention is placed upon sub-sec. (2) of S. 12. That subsection, in so far as it is material, provides : "Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim plead that the subjectmatter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a date before which the plaint shall be amended in accordance with the court's decision and the deficit fee shall be paid...." 9. On a survey of the decisions, this Court in the case of Bijay Kumar Sahoo Vrs. Gokula Bihari Mohanty and others, AIR 2011 ORISSA 183, has succinctly stated the principles in paragraph15 of the said report, which are quoted below: “15. The principles decided in all the aforesaid decisions and the discussion supra must have, by now, answered the questions posed at the outset. The discussion may be summed up as follows : (1) The "finality" declared by Section 12 of the Act is limited to the extent that the order on the question of valuation for the purpose of jurisdiction and court-fees is like any other non-appealable interlocutory order and no appeal lies from such an order. The discussion may be summed up as follows : (1) The "finality" declared by Section 12 of the Act is limited to the extent that the order on the question of valuation for the purpose of jurisdiction and court-fees is like any other non-appealable interlocutory order and no appeal lies from such an order. (2) Any mistake or vulnerability in the decision/order in view of the interdict in Rathnavarmaraja's case ( AIR 1961 SC 1299 ) cannot be questioned by the defendant on the ground of any mistake or vulnerability in the decision itself or in the decision making process unless the question also involves jurisdiction of the Court to try the suit or entertain the appeal. (3) In Courts of limited pecuniary jurisdiction, valuation assumes great importance and since undervaluation goes to the root of maintainability of the suit, a defendant is entitled to raise the objection irrespective of the nature of the suit when the valuation touches the question of jurisdiction. The distinction between error regarding category and an error regarding valuation pure and simple (as discussed supra in Nemi Chand's case) is of no relevance in a revision by the defendant. (4) So long as the error is not one affecting the jurisdiction of the Court to try the suit or entertain the appeal, the defendant is not affected thereby and in suits filed in Court of unlimited pecuniary jurisdiction, the defendant may not be entitled to question the decision on the valuation. (The question of over-valuation may however be different).” 10. The suit has been filed in the court of limited pecuniary jurisdiction. The valuation assumes great significance. The under valuation goes to the root of maintainability of the suit. Thus the defendant is entitled to raise the objection irrespective of the nature of the suit when the valuation touches the question of jurisdiction. Point No.II 11. In Suhrid Singh @ Sardool Singh v. Randhir Singh & others, AIR 2010 SC 2807 , the question arose where non-executant seeks annulment of a deed and seeks declaration that the deed is invalid or non-est or illegal or that it is not binding on him, whether he has to pay the ad valorem court fee as provided under Section 7(iv)(c) of the Court Fees Act. The apex Court in paragraphs 6 and 7 held thus: “6. The apex Court in paragraphs 6 and 7 held thus: “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. 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. 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. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under Section 7(iv)(c) of the Act. The trial court and the High Court were, therefore, not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that, therefore, court fee had to be paid on the sale consideration mentioned in the sale deeds.” 12. The instant case may be examined on the anvil of the decision cited supra. The plaintiff had not executed the sale deed. He sought the reliefs mentioned supra. In view of the authoritative pronouncement of the apex Court in the case of Suhrid Singh (supra), the conclusion is irresistible that the plaintiff has to pay the court fees under Section 7(iii) of Second Schedule of the Court Fees Act. Thus the valuation of the suit has been rightly made. 13. There being no perversity or illegality in the impugned order, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed. No costs.