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Allahabad High Court · body

2019 DIGILAW 1308 (ALL)

Mannaur Ansari v. Juved Ahmad

2019-05-14

VIVEK KUMAR BIRLA

body2019
JUDGMENT : Vivek Kumar Birla, J. 1. Heard learned counsel for the petitioners and perused the record. 2. Present petition has been filed challenging the impugned order dated 17.12.2011 passed by the Civil Judge (J.D.) Mohammdabad Ghazipur in Original Suit No. 298 of 1997 as the as the order dated 31.5.2018 passed by Additional District Judge, Ghazipur in Civil Revision No. 2 of 2012. 3. By order dated 17.12.2011 the trial Court has decided the issue no. 3 regarding valuation and Court fees against the plaintiffs (petitioners herein). The valuation of the suit was fixed at Rs. 1,99,000/-on the basis of sale deed of the year 1994 regarding which relief of declaration that the same may be declared as void and ineffective has been prayed for. The plaintiffs (petitioners herein) were directed to pay the Court fees accordingly. Revision against the same was also rejected by the Court below on the ground that once the relief is being claimed regarding declaration of a deed as null and void, without holding the same , the declaratory relief as sought cannot be granted, hence the Court fees is to be paid accordingly. 4. Submission of learned counsel for the petitioners is that on 17.12.2017 itself Amin's report was approved by the trial Court wherein the valuation of the property was given at Rs. 33,000/-, therefore, valuation cannot be assessed more than that. 5. I have considered the submissions of learned counsel for the petitioners and perused the record. 6. Amin's report may have been approved by the trial Court, however, the relief claimed is in respect of the sale deed dated 14.9.1994 and as such, the valuation has been fixed on the basis of the same. 7. A reference may be made to a judgment of Ho'ble Apex Court in Shailendra Bhardwaj and others vs. Chandra Pal and another, (2013) 1 SCC 579 , paragraphs 7, 8, 9 10 and 11 whereof quoted as under:- “7. We may also indicate that the Suits Valuation Act, 1887 in terms of which the suits have to be valued for the purpose of the Court Fees Act has also been amended vide U.P. Act 7 of 1939 (w.e.f. 16-7-1939) and the difference in both the Acts are given below: Suits Valuation Act 1887 (Central Act) Suits Valuation Act “4. We may also indicate that the Suits Valuation Act, 1887 in terms of which the suits have to be valued for the purpose of the Court Fees Act has also been amended vide U.P. Act 7 of 1939 (w.e.f. 16-7-1939) and the difference in both the Acts are given below: Suits Valuation Act 1887 (Central Act) Suits Valuation Act “4. Valuation of relief in certain suits relating to land not to exceed the value of the land – Where a suit mentioned in the Court Fees Act, 1870 (7 of 1870), Section 7, Para IV, or Schedule II, Article 17, relates to land or an interest in land of which the value has been determined by rules under last foregoing section, the amount at which for purposes of jurisdiction the relief sought in the suit is valued shall not exceed the value of the land or interest as determined by those rules.” “4. Valuation of certain suits for the purposes of jurisdiction – Suits mentioned in Paras IV (a) IVA 8. On comparing the abovementioned provisions, it is clear that Article 17 (iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where the plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. 9. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. 9. The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7 (iv-A) of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the court fees have to be computed according to the value of the subject-matter and the trial court as well as the High Court have correctly held so. 10. We are of the view that the decision of this Court in Suhrid Singh v. Randhir Singh, (2010) 12 SCC 112 is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a case in which this Court was dealing with Sections 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view the said judgment would not apply to the present case. 11. The plaintiff, in the instant case, valued the suit at Rs. 30 lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of court fee, the plaintiff paid a fixed court fee of Rs 200 under Article 17(iii) of Schedule II of the Court Fess Act. The plaintiff had not noticed the fact that the abovementioned article stood amended by the State, by adding the words “not otherwise provided for by this Act”. However, for the purpose of court fee, the plaintiff paid a fixed court fee of Rs 200 under Article 17(iii) of Schedule II of the Court Fess Act. The plaintiff had not noticed the fact that the abovementioned article stood amended by the State, by adding the words “not otherwise provided for by this Act”. Since Section 7(iv-A) of the U.P. Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable.” 8. In the above noted case after considering the earlier judgment in Suhrid Singh alias Sardool Singh vs. Randhir Singh and Ors., (2010) 12 SCC 112 , it has been held that Court fee is to be paid under Section 7 (iv-A) of the UP Amendment Act (19 of 1938) of the Court Fees Act, 1890 and Act 17 (iii) of Section 11 of the Court Fees Act shall not apply. 9. A reference may also be made to a judgment of Hon'ble Apex Court in J. Vasanthi and others vs. N. Ramani Kanthammal (Dead) Represented by Legal Representatives and others, (2017) 11 SCC 852 , paragraphs 20, 21, 22, 23, 24 and 28 whereof are quoted as under: “20. In this context, we may profitably refer to the pronouncement of this Court in Suhrid Singh alias Sardool Singh v. Randhir Singh and Ors. (2010) 12 SCC 112 . In the said case, the Court referred to several elaborate prayers contained in the plaint and summarized the same. The Court took note of the fact that the issue had come before the trial court which had come to hold that prayers relating to the sale deeds amounted to seeking cancellation of the sale deeds and, therefore, ad valorem court fee was payable on the sale consideration in respect of the sale deeds. The said view was affirmed in the revision. The Court addressed the core issue pertaining to court fee payable in regard to the prayer for a declaration that the sale deeds were void and not "binding on the coparcenary", and for the consequential relief of joint possession and injunction. The said view was affirmed in the revision. The Court addressed the core issue pertaining to court fee payable in regard to the prayer for a declaration that the sale deeds were void and not "binding on the coparcenary", and for the consequential relief of joint possession and injunction. After referring to the provisions of the Court Fees Act, 1870 as amended in Punjab (as the controversy arose from the High Court of Punjab and Haryana), the Court held: “7. 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 the 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. 8. 19.50 Under Article 17(iii) of the 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. 8. 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.” 21. On the basis of the aforesaid analysis, the Court opined that the view expressed by the trial court and the High Court was not justified in holding that the court fee is required to be paid on the sale consideration mentioned in the sale deeds. 22. In Shailendra Bhardwaj and Ors. v. Chandra Pal and Anr. (2013) 1 SCC 579 , the Court was dealing with an issue whether suit filed seeking a declaration that a will and a sale deed are void resulting in their cancellation fell Under Section 7(iv-A) of the Court Fees Act, 1870 as amended by the U.P. Amendment Act (Act 19 of 1938) or Article 17(iii) of Schedule II of the Court Fees Act, 1870 for the purpose of valuation. Be it noted, in the said case the trial court had taken the view that the court fee had to be paid Under Section 7(iv-A) and the High Court has concurred with the same. The two-Judge Bench took note of the provisions of the Court Fees Act, 1870 as amended by the U.P. Amendment Act (Act 19 of 1938) and after referring to the same in detail, held thus: “8. On comparing the abovementioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the Plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. On comparing the abovementioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the Plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this Article is applicable in cases where the Plaintiff seeks to obtain a declaratory decree without consequential relief’s and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.” 23. The Court took note of the fact that the suit was filed after the death of the testator and, therefore, on that basis observed that the suit property covered by the will was required to be valued. The Court further opined that since Section of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the said case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section of the U.P. Amendment Act, the court fees have to be computed according to the value of the subject-matter and the trial court as well as the High Court have correctly held so. The two-Judge Bench distinguished Suhrid Singh's case by expressing thus: “10. Consequently, in terms of Section of the U.P. Amendment Act, the court fees have to be computed according to the value of the subject-matter and the trial court as well as the High Court have correctly held so. The two-Judge Bench distinguished Suhrid Singh's case by expressing thus: “10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a case in which this Court was dealing with Sections, (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case. 11. The Plaintiff, in the instant case, valued the suit at Rs. 30 lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of court fee, the Plaintiff paid a fixed court fee of Rs. 200 Under Article 17(iii) of Schedule II of the Court Fees Act. The Plaintiff had not noticed the fact that the abovementioned Article stood amended by the State, by adding the words "not otherwise provided for by this Act". Since Section of the U.P. Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable. 24. The decisions in Suhrid Singh (supra) and Shailendra Bhardwaj (supra) have to be understood in their proper perspective. There was U.P. Amendment in Shailendra Bhardwaj (supra). In Suhrid Singh (supra) the Court was dealing with a different situation. Be that as it may, the valuation of a suit and payment of court fee shall depend upon the special provision in a State if provided for. The view taken by the Madras High Court in Chellakannu (supra), in our considered opinion, is the correct exposition of law. 28. Be that as it may, the valuation of a suit and payment of court fee shall depend upon the special provision in a State if provided for. The view taken by the Madras High Court in Chellakannu (supra), in our considered opinion, is the correct exposition of law. 28. In the ultimate analysis, we arrive at the conclusion that the appeal is to be allowed, the impugned orders passed by the trial court and the High Court, being unsustainable are to be set aside and we so direct. The trial court is directed to grant three months time to the Plaintiff to pay the requisite court fee. There shall be no order as to costs.” 10. In the above noted case, after extensive consideration the judgments in Suhrid Singh (supra) and Shailendra Bhardwaj (supra) it has been held that valuation of a suit and payment of court fee shall be dependent upon the special provision in a State, if provided for. 11. A reference may also be made to a judgment of this Court in Smt. Rambeti and others vs. Rajendra and others, 2016 (1) CAR 414 wherein also it has been held that Court fee is to be paid under Section 7 (iv-A) of the UP Amendment Act (19 of 1938) of the Court Fees Act, 1890 and Act 17 (iii) of Section 11 of the Court Fees Act shall not apply. 12. A reference may also be made to a judgment of this Court passed in A.V. Ampoules and Vials Pvt. Ltd. vs. Abdul Rasheed and Ors., 2016 (5) ADJ 708 , paragraphs 6, 7, 8 and 11 whereof are quoted as under: “6. The court of Civil Judge (S.D.) has unlimited pecuniary jurisdiction of hearing of the case. In present matter, it is immaterial whether the valuation of property in question is Rs. 40,000,00/-or more than it. Since any valuation of such property will be within jurisdiction of trial court, therefore valuation of the suit is not going to have any effect on pecuniary jurisdiction of trial court. Therefore the suit's alleged undervaluation will not prejudice the revisionists. 7. In Sri Ratnavaramaraja Vs. 40,000,00/-or more than it. Since any valuation of such property will be within jurisdiction of trial court, therefore valuation of the suit is not going to have any effect on pecuniary jurisdiction of trial court. Therefore the suit's alleged undervaluation will not prejudice the revisionists. 7. In Sri Ratnavaramaraja Vs. Smt. Vimla; AIR 1961 SC 1299 Hon'ble Apex Court held as under: "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 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 move the superior court by appeal or in revision against the order adjudging payment of court-fee payable on the plaint." 8. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior court by appeal or in revision against the order adjudging payment of court-fee payable on the plaint." 8. So far as the payment of court-fee is concerned, it is settled legal position that it is always a matter between the Court and plaintiff; and the defendants have no legal right to challenge the insufficiency of the court fees. Apart from it on merits, the maximum payable court-fee for the relief of permanent injunction is Rs. 500/-which has already been paid by the plaintiffs. So this finding of trial court in impugned order is not erroneous that proper court-fee had been paid in this matter. 11. In light of above mentioned legal verdicts I am of the opinion that since the matter of payment of Court fees is a matter between plaintiff (present opposite party) and Court, the defendant (revisionist) has no right or locus standii to agitate this matter by revision or by any way. His revision is liable to be dismissed with costs.” 13. In a case involving similar circumstances this Court refused to interfere under Article 227 of the Constitution of India in view of the judgment of this Court passed in Matter under Article 227 No. 6334 of 2018 ( Layak Singh and another vs. Smt. Sunita Yadav and 16 others) decided on 30.8.2018. 14. In such view of the matter, I do not find any legal infirmity in the order impugned herein. 15. Present petition is accordingly dismissed. 16. In the facts and circumstances of the case as this suit is of the year 1997, it is provided that the Court below shall expedite the hearing of the suit and decide the same as expeditiously as possible by fixing short dates. 17. No order as to costs.