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2016 DIGILAW 597 (HP)

Mohinder Singh v. Sanjay Kumar

2016-04-29

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff/petitioner herein instituted a suit for declaration qua sale deed of 9.2.2010 executed by defendant No.3 on the basis of his holding his General Power of Attorney comprising therein the share of the plaintiff borne in the joint land in favour of defendants No. 1 and 2 being inoperative qua his share therein, it being violative of the terms and conditions of the GPA. A studied perusal of the plaint unfolds the factum of the plaintiff though not denying his signatures borne on GPA of 5.2.2010 wherein he constituted the defendant No.3 as his general power of attorney, nonetheless he claims of the recitals recorded therein whereby authority stood conferred by him upon defendant No. 3 to alienate his share in the joint land by executing a deed of conveyance and to receive sale consideration stood incorporated therein by deception besides beyond the volition of the plaintiff besides beyond the instructions imparted to defendant No. 3 to merely record recitals therein permitting him to only pursue appeals/revisions before the Divisional Commissioner, Kangra at Dharamshala. Moreover, consequently it is averred of the title conveyed under the apposite sale deed by defendant No.3 in favour of defendants No. 1 and 2 being non est. Apart there-from, an averment stands embodied in the plaint of no part of sale consideration received by defendant No.3 from defendants No.1 and 2 standing transmitted to him. The plaintiff valued the suit for the purpose of court fees and jurisdiction at Rs.130/- Accordingly, he affixed a fixed court fee on the plaint. The office of the learned trial Court raised an objection qua the valuation put by the plaintiff qua his suit for the purpose of court fees also an objection stood raised by the office of the court concerned, of an inappropriate fixed court fees standing affixed on the plaint by the plaintiff whereas given the relief claimed by the plaintiff in the plaint, the valuation of the suit was enjoined to concur with besides be in tandem with Section 7 (iv) (c) of the Court fees Act, 1870 provisions whereof stands extracted hereinafter:- “7. Computation of fees payable in certain suits: The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:- (iv) in suits xxxxx (c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, xxxx according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff shall state the amount at which he values the relief sought: 2. The learned trial Court after hearing the contesting parties on the aforesaid objections raised by its office directed the plaintiff to in accordance with Section 7(4)(c) read with Section 7(V) of the Court fees Act affix ad valorem court fees on the amount of sale consideration amount reflected in sale deed of 9.2.2010. The order rendered by the learned trial Court stands assailed before this Court by the plaintiff petitioner herein. 3. The learned counsel appearing for the plaintiff petitioner herein alludes to the nature of the relief claimed in the plaint inasmuch as of his seeking a declaratory relief of the apposite sale deed executed qua the suit land by defendant No.3 in favour of defendants No.1 and 2 for reasons afore-stated being illegal, null and void, ineffective having no binding force on his right, title and interest in the joint land. He hence given the phraseology of the relief ventilated in the plaint by the plaintiff hence its perse communicative of its constituting a dire contradiction vis-àvis the relief for the sale deed standing prayed to be cancelled/avoided hence with the former relief standing staked by him entailed the legal consequence of his being amenable to affix a fixed Court fees on the plaint. He proceeds to contend that only in the wake of the latter relief standing staked or asserted by him he then thereon rather stood enjoined to affix court fees ad valorem vis.a.vis the amount of sale consideration reflected in the apposite sale deed executed qua the suit land in favour of defendants No.1 and 2 by defendant No.3. He proceeds to contend that only in the wake of the latter relief standing staked or asserted by him he then thereon rather stood enjoined to affix court fees ad valorem vis.a.vis the amount of sale consideration reflected in the apposite sale deed executed qua the suit land in favour of defendants No.1 and 2 by defendant No.3. Even though the aforesaid semantic distinctions in the phraseology wherein the relief of cancellation of sale deed stands couched vis-à-vis the couching of in the plaint the relief of declaration qua the sale deed standing decreed to be void ab initio and its not holding any binding effect qua the right, title and interest of the plaintiff in the joint land, with the concomitant sequelling effect of the plaintiff/petitioner herein standing hence enjoined to respectively affix on the plaint court fees ad valorem qua the amount of sale consideration borne on the apposite sale deed concerted to be rescinded or cancelled vis-à-vis his standing enjoined to affix thereon a fixed Court fees stand accepted by a catena of judicial pronouncements. Nonetheless acceptance by this Court of the ratio decidendi contained in a decision of Patna High Court rendered in Devasharay Singh versus Saroj Kumar @ Saroj Singh, 2008(4) Civil Court Cases 523 (Patna), the relevant Paragraph-5 whereof stands extracted herein-after: “[5] The law is well settled In this regard as against a deed of transfer two sorts of reliefs can be sought, the first is a declaration that a deed may be cancelled or avoided, whereas the other is a declaration that a deed is void, ab initio having no legal consequence and not binding on the plaintiff. In the Instant case, the claim of the plaintiff is that he has got title and possession over the suit properties and that the sale deed in question was void ab Initio and not binding upon him but he has not sought any relief that the sale deed be cancelled or avoided. This distinction has been completely overlooked by the learned Court below who has merely relied upon the report of the Sheristedar although it is completely against the specific proposition of law. This distinction has been completely overlooked by the learned Court below who has merely relied upon the report of the Sheristedar although it is completely against the specific proposition of law. If the plaintiff seeks a relief for cancellation of a deed he has to pay ad valorem court-fee as per the valuation of the deed, but if he seeks a relief for declaring the deed to be void ab initio and not binding upon him a fixed declaratory court-fee would be sufficient. This view finds support from a plethora of decisions of the Hon ble Apex Court and this Court including the case of Mostt. Sohagwati Devi v. Mostt. Lakhpatia Devi, 1975 PLJR 349 and also in case of Kamaldeo Prasad Singh v. Smt. Ram Shawarl Devi, 2006 4 PLJR 443 .” would be with extreme wariness and caution. Rather an incisive perusal of the relief canvassed by the plaintiff in the plaint is imperative for discerning therefrom whether the effect of the declaratory relief asked for in the plaint by the plaintiff ultimately tantamounts to his asking for the rendition of a decree of cancellation of the sale deed. In the aforesaid endeavour a reading of the genre besides the innate nuance of the declaratory relief asked for by the plaintiff in the plaint while unveiling of its bespeaking of on the grounds averred therein of sale deed of 9.2.2010 executed qua the suit land by defendant No.3 in favour of defendants No.1 and 2 being declared to be illegal, ineffective and having no binding force, does to the circumspect mind of this Court tantamount to of hence the decree aforesaid if rendered also tantamounting to its begetting the sequel of the sale deed standing hence cancelled or rescinded. The semantic artifice resorted to by the plaintiff to avoid payment of Court fees on the plaint if stands countenanced by this Court it would sequel the effect of this Court holding the untenable view of the declaratory decree if stands afforded by the learned trial Court of the sale deed qua the suit land being hence declared to be illegal, null and void, ineffective and having no binding force on the right, title or interest of the plaintiff in the land comprised in the sale deed, it yet not constituting a decree of hence the sale deed standing rescinded or cancelled especially when the setting aside of the sale deed by a decree of the learned Civil Court begets the obvious sequel of its standing rescinded or cancelled. Even when the latter relief stands not asked for in the plaint by the plaintiff, the semantic artifice or contrivance resorted to by the plaintiff by craftly couching the phraseology of the relief cannot when the effect thereof ultimately is of his tacitly asking for its begetting the aftermath of the sale deed standing rescinded or standing cancelled, stand to be approbated by this Court, it being an apparent device to facilitate his, escaping merely by his subtly deploying qua the relief ventilated in the plaint a phraseology disguising besides camouflaging the relief of its rescission or its cancellation reliefs whereof naturally ensue on the apposite sale deed standing decreed to be set-aside, the legal consequence qua his liability to affix on the plaint court fees ad valorem vis.a.vis the amount of sale consideration borne on the apposite sale deed. In sequel, the distinctivity intra se the relief of cancellation or revocation of sale deed and its warranting affixation on the plaint by the plaintiff of ad valorem Court fees vis-à-vis the purported diverse relief to it of the sale deed being declared null and void, fades into the realm of irrelevance rather when the subtle nuance of the nature of the reliefs ventilated in the plaint for the reasons afore-stated bears a close affinity with besides stands in coagulation also is inextricably entwined with its ultimately begetting the sequel of the sale deed standing revoked or cancelled rather coaxes this Court to conclude that the order impugned before this Court is both just and well reasoned and its necessitating no interference. 4. 4. The learned counsel for the plaintiff/petitioner herein relies upon a judgment titled as Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, reported in 2010(2) Civil Court Cases 510 (S.C) the relevant Paragraph-6 stands extracted herein-after: “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-east 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. 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.” to canvass therein grounds analogous to the one as initially canvassed by him for rendering legally infirm the order impugned before this Court. However, the judgment of the Hon’ble Apex Court, the relevant paragraph whereof stands extracted rather omits to give any strength or leverage to the espousal before this Court of the learned counsel for the plaintiff petitioner herein of his suit standing properly valued for the purpose of jurisdiction besides a proper Court fees standing affixed thereon, in the light of an underscoring in the citation relied upon by the counsel for the plaintiff petitioner herein of ad valorem Court fees on the sale consideration standing enjoined to be peremptorily affixed on the plaint by the plaintiff in the event of his being its executant whereas when a non executant thereof seeks a declaration for avoiding the sale deed with his being in possession of the suit land, the latter standing obliged to merely affix a fixed Court fees on the plaint. In sequel, for applying the ratio decidendi thereof this Court is obliged to allude to the factum probandum of the sale deed of 9.2.2010 standing vicariously executed by the plaintiff inasmuch as through his general power of attorney the latter whereofs authorization though stands assailed in the plaint factum whereof when yet remains to be adjudicated upon by the learned trial Court given the factum of the suit having not progressed to the stage of even striking of issues nor obviously evidence standing adduced by the plaintiff on the apposite issue devolving upon the validity of the sale deed of 9.2.2010. Being so with the plaintiff being hence the executant of the sale deed, his suit for hence his avoiding the sale deed enjoins him to in tandem with the verdict of the Hon’ble Apex Court affix ad valorem court fees on the plaint vis.a.vis the amount of sale consideration displayed in the deed of conveyance assailed at his instance. The verdict of the Hon’ble Apex Court does also subsume the submission of the learned counsel for the plaintiff built on a semantic artifice qua the constitution of the phraseology of the relief claimed by the plaintiff in his plaint and its concomitantly entailing the effect of his standing enjoined to affix on his plaint a fixed court fees or an ad valorem Court fees vis.a.vis the amount of sale consideration displayed in the deed of conveyance assailed at his instance. 5. The summum bonum of the above discussion is of not the couching of the phraseology of the relief in the plaint constituting the predominant factor for ordering the plaintiff to on the plaint affix a fixed court fees or an ad valorem court fees vis.a.vis the amount of sale consideration borne on the sale deed concerned rather the accent is upon the gathering of the subtle nuance of the phraseology embodying the reliefs staked in the plaint ultimately begetting the sequel of the apposite sale deed by a decree of Civil Court standing rescinded or cancelled, for fomenting an apt conclusion qua the fastening upon the plaintiff the apposite liability qua affixation by him on the plaint, of the apposite Court fees. 6. In view of the above discussion, the petition fails and is accordingly dismissed. Impugned order maintained and affirmed. Pending application, if any, also stands disposed of. Records be sent back forthwith.