Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 447 (ORI)

Rinarani Biswal v. Pradeep Chauhan

2017-04-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 3.12.2014 passed by the learned First Additional Civil Judge (Senior Division), Cuttack in C.S.No.471 of 2012, whereby and where under, the learned trial court rejected the application of defendant no.2-petitoner under Order 7 Rule 11 (b) & (c) read with Section 151 CPC for a direction to the plaintiff to put proper valuation of the suit and pay Court fee, failing which, to reject the plaint. 2. Opposite party no.1 as plaintiff instituted the suit for declaration that RSD No.2017 dated 7.7.2012 executed by defendant no.1 in favour of defendant no.2 is illegal, void, not binding on him and permanent injunction. Petitioner is the defendant no.2 in the suit. Pursuant to issuance of summons, defendant no.2 entered appearance and filed an application under Order 7 Rule 11(b)(c) read with Section 151 CPC for a direction to the plaintiff to put proper valuation of the suit and pay the court fee within a specified time, failing which, to reject the plaint. The plaintiff filed objection stating that the power of attorney executed by him in favour of defendant no.1 has been cancelled. He has not delivered the suit land to defendant no.1. Thus, defendant no.1 cannot alienate the property in question to defendant no.2. The suit has been properly valued. The learned trial court came to hold that the plaintiff is not a party to the registered sale deed. The suit is not for cancellation of an instrument, but for declaration of sale deed as illegal and void. The plaintiff is not required to value the suit as per the valuation of the sale deed. Held so, the learned trial court rejected same. 3. Mr.Rath, learned counsel for the petitioner submitted that the plaintiff has prayed inter- alia for declaration that RSD No.2017 dated 7.7.2012 executed by defendant no.1 in favour of defendant no.2 is illegal, invalid and void and not binding on him. The same is in effect of cancellation of registered sale deed. Thus, the plaintiff should have valued the suit on market price i.e. the consideration amount mentioned in the registered sale deed. Unless the plaintiff’s title is declared, the relief of permanent injunction cannot be granted. Valuation of the suit is imaginary. The learned trial court is not justified in rejecting the application. Thus, the plaintiff should have valued the suit on market price i.e. the consideration amount mentioned in the registered sale deed. Unless the plaintiff’s title is declared, the relief of permanent injunction cannot be granted. Valuation of the suit is imaginary. The learned trial court is not justified in rejecting the application. He relied upon a decision of this Court in the case of Gopal Chandra Jena Vrs. Sri Sri Laxmi Narayan Bije Maura Alava and another, 1989 (II) OLR 409. 4. Per contra, Mr.Mishra, learned counsel for the opposite party no.1 submitted that the suit has been properly valued. He relied upon a decision of the Apex Court in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh & others, AIR 2010 SC 2807 . 5. In Suhrid Singh (supra), the apex Court held : “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. 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. 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.” 6. Reliance placed on Gopal Chandra Jena (supra) is of no assistance to the petitioner. In the said case, the defendant assailed the order passed by the Munsif overruling his objection regarding the valuation of the suit for the purpose of jurisdiction and the court-fee paid by the plaintiffs in the suit for a declaration that the deed of gift executed by plaintiff No. 2 on 6-3-1984 was void inasmuch as the defendant, her husband's younger brother, practised fraud upon her to get the gift deed executed in his favour in the garb of execution of a power-of-attorney by her. According to him, in essence and substance, the relief claimed by the plaintiffs is for cancellation of the deed and depriving the defendant of his title in the property conveyed under the gift deed. Thus the suit has to be valued on the valuation of the property and ad valorem court-fee has to be paid as required under Sec.7(iv)(c) of the Court Fees Act, 1870 (shortly stated 'the Act'). It was held that in the context, the cancellation of the deed arises as a necessary consequence of the declaration and hence while the relief of declaration is the substantive relief claimed, cancellation thereof is the necessary consequential relief arising therefrom since without getting a declaration that the deed is vitiated by fraud, the cancellation cannot be sought for independently. This Court held the suit to be one for relief of declaration with consequential relief and is to be governed by Section 7(iv)(c) of the Act. It was further held that so far as a suit to which Section 7(iv)(c) applies, the plaintiff has the option to state the amount at which he values the relief. 7. In Tara Devi v. Sri Thakur Radha Krishna Maharaj through Sebaits Chandeshwar Prasad and Meshwar Prasad and another, AIR 1987 SC 2085 , the apex Court held that in a suit for declaration with consequential relief failing under Sec.7(iv)(c) of the Court-fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court-fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same. 8. In view of the authoritative pronouncement of the decisions cited supra, the inescapable conclusion is that when a non-executant is in possession and seeks a declaration that deed is null and void and is not binding on him, he has to pay the court fee under Sec.7(iv)(c)of the Court Fees Act. The plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court-fee and jurisdiction has to be ordinarily accepted. The plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court-fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same. 9. In the wake of the aforesaid, the petition is dismissed. No costs.