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2018 DIGILAW 744 (MP)

Abhishek Saklecha v. Lakshman

2018-08-30

PRAKASH SHRIVASTAVA

body2018
JUDGMENT : Heard finally with consent. 2. By this revision petition under Section 115 of the CPC, the defendant No.1 has challenged the order of the trial Court dated 03/09/2015 rejecting the petitioner’s application under Order 7 Rule 11 of the CPC. 3. The petitioner had filed the application under Order 7 Rule 11 of the CPC with the plea that in the suit the prayer is to declare the power of attorney and the sale deed as void, therefore, the respondent/plaintiff is liable to pay the advalorem court fee as per the value of the property indicated in the sale deed and that the suit is not properly valued and there is a bar under Section 257 of the M.P. Land Revenue Code. The trial Court has rejected the said application by the impugned order. 4. Learned counsel appearing for the petitioner submits that the trial Court has committed an error in rejecting the application without appreciating that once the sale deed executed by the respondent/plaintiff through the power of attorney is challenged in the suit, then he is liable to pay the advalorem court fee. He further submits that the suit has not been properly valued. 5. As against this, learned counsel for the respondents have supported the impugned order. 6. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the respondent No.1 (plaintiff) has filed the suit for declaration and permanent injunction with a prayer for holding the sale deed dated 23/04/2010 as also the power of attorney allegedly executed in favour of the respondent No.3 as null and void. It has been pleaded that no such power of attorney was executed by the respondent No.1 in favour of respondent No.3 and that the alleged power of attorney was in respect of survey No.78/12 whereas the sale deed has been executed in respect of survey No.78/1A and that the respondent/plaintiff is not the owner of the survey No.78/12 but is the owner of 78/1A. In these circumstances, prima-facie the respondent No.1 is not a party to the sale deed under challenge in the suit. It is also pleaded in the plaint that the respondent No.1 is in possession of the suit land, hence in view of the judgement of this Court in the matter of Vijay Kumar Vs. In these circumstances, prima-facie the respondent No.1 is not a party to the sale deed under challenge in the suit. It is also pleaded in the plaint that the respondent No.1 is in possession of the suit land, hence in view of the judgement of this Court in the matter of Vijay Kumar Vs. Vinay Kumar reported in 2016 (3) MPLJ 499 , he is not liable to pay the advalorem court fee. 7. The judgment in the matter of Baldev Singh Bhatia Vs. Commissioner, Nagar Palika Nigam, Raipur and others reported in 2001 (5) MPHT 206 relied upon by learned counsel for the petitioner is of no relevance in this regard, because in that case the plaintiff had valued the suit differently for jurisdiction and court fee, therefore, it has held that he was liable to pay the court fee on valuation put forth by him. 8. Similarly, he is also not entitled to the benefit of the order dated 30/01/2018 passed in the matter of Municipal Council Boda Vs. Dinesh Construction & others passed in WP No.6696/2016, because in that case the suit was for challenging the order for cancellation of work order and the cost of work was Rs.45 Lakhs, therefore, this Court had held the petitioner liable to pay the advalorem court fee. Therefore, this Court had held that the plaintiff was liable to pay the advalorem court fee as per the valuation. 9. The record further reflects that the petitioner has prayed for an injunction restraining the respondents to interfere in his possession which is an independent relief and not a consequential relief since the respondent No.1 had pleaded himself to be in possession. Hence, no interference in this regard is required in view of the judgment of this Court in the matter of Ashok Kumar Gehani Vs. Ramhet Agrawal reported in 2008 (1) MPLJ 116 . 10. So far as the conclusion of the trial Court that the suit is not bar under Section 257 of the M.P. Land Revenue Code, learned counsel for the petitioner has not advanced any arguments in this regard. 11. On the issue of valuation, counsel for the respondent No.1 has fairly stated that the said issue can be re-examination by the trial Court. 12. 11. On the issue of valuation, counsel for the respondent No.1 has fairly stated that the said issue can be re-examination by the trial Court. 12. Having regard to the aforesaid, the revision petition is disposed of without interfering in the order of the trial Court in respect of the court fee and bar under Section 257 of the Land Revenue Code, but directing the trial Court to re-examine the issue of valuation of the suit and pass an appropriate order. C.c. as per rules.