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2019 DIGILAW 1205 (ALL)

Pappu Tiwari v. Pramod Dubey

2019-05-06

AJIT KUMAR

body2019
JUDGMENT : Ajit Kumar, J. 1. Rejoinder affidavit filed today is taken on record. 2. This is a petition originally filed under Article 226 of the Constitution of India questioning the order passed by the Additional District and Sessions Judge/ Special Judge (Essential Commodities Act), Varanasi in Civil Revision No.-257 of 2010 filed by the defendant-respondent in the suit. Since after the judgment in the case of Radhey Shyam v. Chhabi Lal and others, 2015 (5) SCC 423 , the petition arising out of an order passed in the Civil Suit is only maintainable under Article 227 of the Constitution, the petitioner has moved an amendment application. Both the parties agree that the petition may be permitted to be amended forthwith to be read with also as under Article 227 of the Constitution and the petition may also be disposed of on merits. Hence, amendment application is allowed and learned counsel for the petitioner is permitted to amend the provision clause of memo of the petition forthwith. 3. Briefly stated the facts of the case are that a suit has been filed through power of attorney holder of the vendor for cancellation of a sale deed executed by the petitioner in favour of the defendant-respondent registered on 28th April, 2008. One of the issues framed was that whether the suit was under valued and the said issue was framed as issue No.3(A). The objection, it appears, was raised by the defendant-respondents that the suit was under valued and, accordingly, the issue came to be framed and also came to be adjudicated initially as a preliminary issue on the question of valuation of the suit property. 4. The trial court after hearing the parties on the said issue decided that the suit property was properly assessed valued and, accordingly, the court fee paid was in accordance with law. Hence, the second issue whether the court fee has not been properly paid as issue No.3(B) was decided in negative and then issue No.4 as to whether the court has the jurisdiction to decide was decided in affirmative. Thus, all the three preliminary issues regarding valuation of the property, payment of the court fee and the jurisdiction of the court to hear and try the suit as issue Nos. 3(A), 3(B) and 4 were all decided in favour of the plaintiff. Thus, all the three preliminary issues regarding valuation of the property, payment of the court fee and the jurisdiction of the court to hear and try the suit as issue Nos. 3(A), 3(B) and 4 were all decided in favour of the plaintiff. The defendant-respondent filed a revision challenging the order of trial court and revision has came to be allowed setting aside the order of the trial court holding that in view of the judgment of the Apex Court in the case of Suhrit Singh @ Sardul Singh v. Randhir Singh and others, 2010 (2) JCLR 818, in which it was held that in case if the suit was filed cancellation of the sale deed by the vendor himself then the valuation of the property will be considering the consideration for which the conveyance was executed and accordingly the court fee will be payable, the court below decided the issue No.-3(A) in affirmative and issue No.3(B) and 4 also in affirmative, vide judgment and order dated 21st April, 2011. 5. The basic arguments raised by the learned counsel for the plaintiff-petitioner is that the court below has failed to consider the relevant provisions of U.P. Amendment to the Central Act, namely, the Court Fees Act, 1870 which takes full care in cases of suit for cancellation of sale deed in respect of immovable property and has also further placed reliance upon a judgment of this Court in the case of Rajendra Prasad Yadav v. Ravindra Nath Singh and others, 2014 (122) RD 507 . 6. Per contra, the argument advanced by the learned counsel for the respondent is that Section 37 of Andra Pradesh Court Fees and Suits Valuation Act, 1956 is pari materia to the provision Section 7(v)(i)(a) of the Court Fees Act, Section (vii-A) and, therefore, he argues for the latest judgment of the Apex Court in the case of Polamrasetti Manikyam and another v. Teegala Venkata Ramayya and another in Civil Appeal Nos. 2456-2457 of 2014 arising out of SLP (C) Nos. 16353-54 of 2012 decided on 19th February, 2014 is fully attracted in the case. He has placed reliance upon the paragraphs 9, 10, 14 and 16 of the said judgment. 7. 2456-2457 of 2014 arising out of SLP (C) Nos. 16353-54 of 2012 decided on 19th February, 2014 is fully attracted in the case. He has placed reliance upon the paragraphs 9, 10, 14 and 16 of the said judgment. 7. Having heard learned counsel for the parties and their argument across the Bar and having perused the records and relevant provisions of the Court Fees Act, 1870 with the special reference to the U.P. Amendment Act and also the import of the provisions of Andhra Pradesh Court Fees and Suits Valuation Act, 1956, whereby the provisions of the Court fees Act have been incorporated and made applicable independently of the Central Act though with certain modifications. I find that in cases of suits instituted for cancellation of or adjudication on an instrument on the ground of being void or voidable or for that matter of a decree, it is the value of the property in issue or in lis between the parties that becomes a determining factor for the purposes of jurisdiction and realisation of the Court fees. 8. While the value of the subject matter becomes the epicenter for the purposes of the admissibility of the Court fees under the relevant laws, the legislature has been conscious enough to add an explanation to further guide for the factors for determination of court fees and I find that for the purposes of the valuation of the property to be determined, for the purposes of the court fees to be paid in a suit for cancellation of the sale deed, the explanation in a most unequivocal terms provides that what will be deemed to be the value computed in accordance with only sub-section (v) and (v-A) or (v-B), as the case may be. Sub-section 7(v) as referred to hereinabove provides for assessment of the valuation on the basis of annual rental value of the land in case of land being the suit property and then 10 times of the revenue as may be payable. Sub-section 7(v) as referred to hereinabove provides for assessment of the valuation on the basis of annual rental value of the land in case of land being the suit property and then 10 times of the revenue as may be payable. In the State after the coming into force of the U.P. Zamindari Abolition and Land Reforms Act, every erstwhile owner of the land has only become a tenure holder and the land has virtually got vested in the State and, therefore, he is to pay the land revenue as a rent and it appears that the legislature being quite conscious of this change under the revenue law, that it considered it to be necessary to incorporate necessary amendments in the Court Fees Act. The land, of course, when it is an agricultural land and is subjected to sale, it is the rental value of the land which becomes true valuation of the land and, therefore, in my considered opinion, for the purposes of valuation of the subject matter of the suit in case of land, it will be determined as per the provisions (v-A), (v-B), (v-C) and (v-D), as the case may be. 9. This Court in the case of Rajendra Prasad Yadav (supra), has considered in detail and discussed also the provisions of Section 7 for the purposes of computation of fee payable in certain suit for instruments and decrees with special reference to the U.P. Amendment and after holding detailed discussion, the Court has summarized the law vide paragraphs 18, 19 and 20 that read as under:- “18. In the instant case, the plaintiff valued the suit as per sub section (v) (I) (a) of Section 7 of the Court Fees Act by claiming that as the property in suit was assessed to land revenue, therefore, it was being valued at thirty times the annual revenue. Such a valuation assigned to a suit for cancellation of sale-deed by placing reliance on the Explanation to sub-section (iv-A) of Section 7 of the Court Fees Act, has been accepted by Uttaranchal High Court in the case of Smt. Savita Agarwal v. Sharda Math Nyas: 2006 (100) RD 568 where similar provisions are applicable as they are applicable in the State of Uttar Pradesh. The paragraph 5 of the judgment in Smt. Savita Agarwal's case (supra) is reproduced herein below:- "5. The paragraph 5 of the judgment in Smt. Savita Agarwal's case (supra) is reproduced herein below:- "5. Under section 7(iv-A) of the Court Fees Act, 1870 (as amended by State of U.P. applicable to Uttaranchal), in a suit for cancellation of an instrument (including sale deeds), the property involved is required to be valued at the amount mentioned in instrument or value of the property to which such instrument relates. It is further provided in the explanation to said sub-section (iv-A) that 'value of the property' for the purposes of the sale deed shall be market value which in the case of immovable property shall be deemed to be the value computed in accordance with subsection (v), (v-A) or (v-B), as the case may be. Section 7(v) of the Court Fees Act, 1870, provides that where the revenue is settled in respect of a land the market value of such land shall be assessed at 30 times of such revenue. In view of said provision of law, neither the suit appears to be undervalued, nor the Court fee paid appears to be insufficient. Therefore, finding on issue No.3 given by the Trial Court need no interference." 19. The Courts below though were correct that the valuation of such a suit, as is involved in the instant petition, is to be done on the market value of the subject matter of sale, but while deciding the issue No.2 they fell in error by taking the sale consideration set forth in the instrument as the sole determinant of the market value instead of considering whether the market value assigned by the plaintiff was in conformity with the provisions of the Explanation to Section 7(iv-A) of the Court Fees Act, as applicable in the State of U.P. 20. No doubt, there may be a case where the sale consideration may reflect the market value of the subject matter, and in the event of there being no objection to its market value, the same may be taken as the market value for the purpose of valuing the suit. No doubt, there may be a case where the sale consideration may reflect the market value of the subject matter, and in the event of there being no objection to its market value, the same may be taken as the market value for the purpose of valuing the suit. But where the plaintiff has assigned a valuation, by determining the market value on the basis of the Explanation, the same cannot be discarded merely because it is different from the sale consideration set forth in the instrument, inasmuch as, it is the market value of the subject matter on which the suit referable to Section 7(iv-A) of the Court Fees Act is to be valued and not on the sale consideration set forth in the instrument.” 10. The argument advanced by the learned counsel for the petitioner is that the court below has wrongly interpreted and relied upon the judgment of the Apex Court in the case of Suhrit Singh @ Sardul Singh v. Randhir Singh 2010 (110) RD 145 carries substance because of the reason that the provisions that have come to be considered by the Apex Court related to the Court Fees Act as has been made applicable in the State of Punjab. The Sections that have been referred to as 7-iv (c) are not pari meteria the provisions of 7-iv with explanation of U.P. Amendment and, therefore, the court below was not been justified in setting aside the order passed by the trial court. 11. Coming to the argument of learned counsel for the respondents that the judgment in the case of Polamrasetti Manikyam (supra) would be applicable because Section 37 of Andhra Pradesh Court Fee Act, 1956, is pari materia in terms of the subject matter of the suit and determination of valuation is in issue. The provision has been quoted vide paragraph 9 of the said judgment. Paragraph 9 of the judgment is reproduced hereunder:- “9. We are, in this case, concerned with the interpretation of Section 37 of the Court Fees Act, which reads as follows :- “37. Suits for cancellation of decrees, etc. The provision has been quoted vide paragraph 9 of the said judgment. Paragraph 9 of the judgment is reproduced hereunder:- “9. We are, in this case, concerned with the interpretation of Section 37 of the Court Fees Act, which reads as follows :- “37. Suits for cancellation of decrees, etc. – (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit, and such value shall be deemed to be : (a) If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed; (b) If a part of the decree or other document is sought to be cancelled, such part of the amount or of the value of the property. (2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff’s share in any such property, fee shall be computed on the value of such property, or share or on the amount of the decree, whichever is less. Explanation : A suit to set aside an award shall be deemed to be a suit for cancellation of a decree within the meaning of this section.” 12. The principle of pari materia is not related to a word or sentence in a provision of law. The principle of pari materia has been coined in law for the purposes of the provision standing substantially same on the subject matter. The provision as quoted under Section 37 even if it is taken to be correct as far as subject matter of the suit is concerned as the valuation of the property is in issue what I find that the provision does not get qualified by any rider or proviso as opposed to what there is in U.P. Amendment and, therefore, the provision of Section 37 of Andhra Pradesh Court Fee Act, 1956 cannot be held to be pari materia and the argument is rejected. The judgment, therefore, in the considered opinion of the Court, in the case of Polamrasetti Manikyam (supra) is of no help to the respondent considering the relevant provisions of Section 7(iv) and 7(v) of the U.P. Amendment to the Central Act. 13. In view of the above, the order passed by the court below cannot be sustained on merits and is hereby set aside on issue No.-3(A), 3(B) and 4 and the judgment and order passed by the trial court deciding the issue is hereby affirmed. 14. Besides above, before parting with the case this Court may observe that payment of Court fees in a suit is principally a matter between the plaintiff and the court. The defendant comes into picture after the suit is entertained and to raise otherwise objection on its maintainability provided there is issue of jurisdiction. The law on the issue has come to be crystallized in a series of the judgment of this Court and also the Apex Court. As far back as 1961 in the case of Sri Ratnavaramaraja v. Smt. Vimla AIR 1961 SC 1299 , the Apex Court vide para 3 of the judgment held thus:- “3. But this section only enables the defendant to raise a contention as to the proper court-fee payable on a plaint and to assist the court in arriving at a just decision on that question. Our attention has not been invited to any provision of the Madras Court-fees Act or any other statute which enables the defendant to move the High Court in revision against the decision of the court of first instance on the matter of court-fee payable on a plaint. The Act, it is true by s. 19, provides that for the purpose of deciding whether the subject-matter of the suit or other proceedings has been properly valued or whether the fee paid is sufficient, the court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the Legislature to collect court-fee due from the litigant is manifest from the detailed provisions made in ch. The anxiety of the Legislature to collect court-fee due from the litigant is manifest from the detailed provisions made in ch. III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision, against an order determining the court-fee payable. In our view, the High Court grievously erred in entertaining revision applications on questions of court-fee at the instance of the defendant, when no question of jurisdiction was involved.” 15. The law as above has consistently been followed till date and by a learned Single Judge of this Court also in the case of Siddhartha Gautam Ram and others v. Sarveshwari Samooh Kushtha, AIR 1995 Allahabad 52. Thus on this above count also the revision ought not to have been entertained by the court below at the instance of the defendant. 16. However, since this Court has passed this order on the merit of valuation of suit, it hardly matters now as to whether the court below had jurisdiction to entertain revision or not. 17. The writ petition is, accordingly, allowed.