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Madhya Pradesh High Court · body

2020 DIGILAW 792 (MP)

Jagmohan Jadon v. State of M. P.

2020-08-10

G.S.AHLUWALIA

body2020
JUDGMENT : 1. Heard on the question of admission through Video Conferencing. 2. This Misc. Petition under Article 227 of the Constitution of India has been filed against the order dated 30-6-2020 passed by 1st C.J. Class 2, Radhogarh, Distt. Guna in Civil Suit No. Unregistered A/2020 by which the petitioner has been directed to pay ad-valorem Court Fee. 3. The necessary facts for disposal of the present petition in short is that the petitioner has filed a suit for declaration of title, permanent injunction as well as for declaring the sale deed as null and void. It is the case of the petitioner that the brother of the petitioner namely Neeraj Meena had agreed to sell survey no. 282 area 2.445 hectares, 278/2/1 area 0.429 hectares situated in village Kherkhedi. Accordingly, the petitioner had gone to the office of Sub-Registrar for the execution of sale deed of his brother. It is alleged that the defendant no. 1, also took the rin pustika of the petitioner for the purposes of sale deed and in a clandestine manner, he also got a sale deed registered in respect of land belonging to the petitioner bearing survey no. 2-8/1 area 0.418 hectares without payment of consideration amount. Thus, the suit was filed for the mentioned reliefs on the ground that the sale deed in respect of the land belonging to the petitioner has been got executed in a fraudulent manner. 4. The Trial Court by the impugned order, held that since, the petitioner is trying to avoid the sale deed in question, and as he was party to the said transaction, therefore, he is liable to pay ad-valorem Court. 5. Challenging the order passed by the Court below, it is submitted by the Counsel for the petitioner, that in the case of Sunil Ragheliya and another Vs. Awadhnarayan and another reported in 2011 (10) JLJ 71 the Full Bench of this Court, had held that where the document is void, then a suit for mere declaration is sufficient and fixed Court fee is payable. However, thereafter, a Division Bench of this Court in the case of Ambika Prakash and others Vs. Shriram Shiromani and others reported in 2011 (3) MPLJ 184 has held that since, a judgment passed by the Supreme Court, was not brought to the knowledge of the Full Bench, otherwise, the judgment of the Full Bench would have been different. However, thereafter, a Division Bench of this Court in the case of Ambika Prakash and others Vs. Shriram Shiromani and others reported in 2011 (3) MPLJ 184 has held that since, a judgment passed by the Supreme Court, was not brought to the knowledge of the Full Bench, otherwise, the judgment of the Full Bench would have been different. It is submitted that if the Division Bench was of the view that the judgment passed by the Full Bench in the case of Sunil Ragheliya (Supra) did not lay down the correct law, then should have referred the matter to larger bench. Therefore, it is prayed that this Court must rely on the passed by the Full Bench of this Court in the case of Sunil Ragheliya (Supra). Heard the learned Counsel for the petitioner. 6. The Supreme Court in the case of J. Vasanthi Vs. N. Ramani Kanthammal reported in (2017) 11 SCC 852 has held as under : 7. The High Court, as the impugned judgment would show, referred to the averments in the plaint which were to the effect that the sale deeds were not executed by their predecessor-in-interest and she had not received consideration and, therefore, the principle enunciated in G. Seethadevi is squarely applicable to them. The High Court further observed that on a perusal of the plaint, it is manifest that the plaintiff had denied execution of the sale deeds and in that context the court fee payable could be under Section 25(d) and not under Section 40 of the Act. 8. Ms. V. Mohana, learned Senior Counsel appearing for the appellants, submits that the court fees has to be paid under Section 40 of the Act when the plaintiff has sought declaration for treating the documents as null and void, which basically amounts to seeking the relief of cancellation of the said documents. It is urged by her that when the requisite court fees as payable under the Act is not paid, the court has no other option but to reject the plaint and the said factum is obvious from the assertions in the plaint. 9. Mr. G. Gowthaman and Mr. It is urged by her that when the requisite court fees as payable under the Act is not paid, the court has no other option but to reject the plaint and the said factum is obvious from the assertions in the plaint. 9. Mr. G. Gowthaman and Mr. P. Soma Sundaram, learned counsel for Respondents 1, 5, 6, 7 and 9 to 14, in support of the order passed by the High Court, contend that the reasons ascribed by the High Court are absolutely impregnable and in a case of the present nature, court fee has to be paid under Section 25(d) of the Act. It is further submitted by the learned counsel for the respondents that the sale deeds executed in favour of the defendants were fraudulent ones, for they were never executed by the original plaintiff and hence, the court fees is required to be paid under Section 25(d) of the Act. 16. Chellakannu v. Kolanji dealt with a civil revision that was filed by the plaintiff assailing the order of the trial court directing the plaintiff to pay the court fee under Section 40 of the Act. The narration of the facts in the plaint was adverted to by the High Court and for proper appreciation of the controversy that has been raised in the instant case, we may reproduce the same: (SCC Online Mad para 2) "2. ... the suit property belonged to his father Pichamuthu. Pichamuthu had two wives, through whom he had three sons. Earlier, there was partition in the family of the plaintiff on 4-8-1971 wherein the plaintiff and the sons through the first wife have partitioned the family properties. There was further partition between the plaintiff and his brothers in 1977. Item 1 of the suit property was allotted to one Poomalai. Items 2 and 4 Sl. Nos. 155/3 and 339/13-A were allotted to the plaintiff. First defendant is the wife of Shanmugam. Third defendant has been keeping the first defendant as his concubine. The third item was allotted to the plaintiff's sister. The third defendant is the third party. With the help of the first defendant, the third defendant secured the suit properties Items 1 to 3 under a false representation that the plaintiff is executing a will in favour of the first defendant. The third item was allotted to the plaintiff's sister. The third defendant is the third party. With the help of the first defendant, the third defendant secured the suit properties Items 1 to 3 under a false representation that the plaintiff is executing a will in favour of the first defendant. On that misrepresentation, the plaintiff's thumb impression was obtained and two sale deeds dated 5-6-1995 and 23-8-1995 are said to have been obtained. Those sale deeds obtained from the plaintiff under false representation is not binding on the plaintiff. Hence, the plaintiff has filed the suit for declaration that the sale deeds are not binding on him and for permanent injunction, restraining the defendants from in any way interfering with the plaintiff's peaceful possession and enjoyment of the Plaint Schedule Items I, II and IV." 17. The further stand taken by the plaintiff was that the sale deeds were obtained from him under fraud and hence, suit had been filed for declaration that the sale deeds were not binding on the plaintiff and since the suit was not filed for cancellation of the sale deeds, the defendants could not insist the plaintiff to pay the court fee under Section 40 of the Act. The trial court recorded a finding that the sale had been executed by the plaintiff himself and prima facie the sale deeds were binding on the executants and when there is a prayer to declare the sale deeds as invalid, it tantamounts to seeking cancellation of sale deeds and therefore, court fee payable would be governed by Section 40 of the Act. 18. The High Court posed two questions, namely, (i) whether in the suit filed for declaration that the sale deeds are invalid, court fee paid under Section 25(d) of the Act is incorrect, and (ii) whether the impugned order directing the plaintiff to pay the court fee under Section 40 of the Act suffers from any infirmity warranting interference. Dealing with the factual matrix, the High Court observed: (Chellakannu case, SCC Online Mad para 11) "... Thus, the plaintiff himself is a party to the sale deed; when the party himself seeks to get rid of the sale deeds in substance it amounts to cancellation of decree. The plaintiff might seek to avoid the sale deeds if he is not a party to the sale deeds. Thus, the plaintiff himself is a party to the sale deed; when the party himself seeks to get rid of the sale deeds in substance it amounts to cancellation of decree. The plaintiff might seek to avoid the sale deeds if he is not a party to the sale deeds. But, since the plaintiff himself is a party to the sale deeds before he is suing for any relief, the plaintiff must first obtain the cancellation of the sale deeds." And again: (SCC Online Mad paras 12 & 15) "12. The word "Cancellation" implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the suit is one for cancellation in the present case, when the plaintiff attacks the sale deeds as having been obtained from him under fraud and misrepresentation the plaintiff cannot seek for any further relief without setting aside the sale deeds. * * * 15. The allegation on the plaint in substance amounts to cancellation of the document. Though the prayer is couched in the form of seeking declaration that the document is not valid and not binding, the relief in substance indirectly amounts to seeking for cancellation of the sale deed. The learned District Munsif was right in ordering payment of court under Section 40 of the Act. This revision petition has no merits and is bound to fail." Being of this view, the High Court dismissed the civil revision and directed the plaintiff to pay court fee with further stipulation that unless paid, the plaint would stand rejected. 24. The decisions in Suhrid Singh and Shailendra Bhardwaj have to be understood in their proper perspective. There was U.P. Amendment in Shailendra Bhardwaj. In Suhrid Singh 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, 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, 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. 7. If the facts of the present case are considered, then it is clear that the petitioner, who is a party to the transaction, is trying to avoid the sale deed by alleging that the same was got executed by playing fraud. 8. Thus, this Court is of the considered opinion, that the Trial Court did not commit any mistake by directing the petitioner to pay the ad-valorem Court Fee. 9. Accordingly, the order dated 30-6-2020 passed by 1st C.J. Class 2, Radhogarh, Distt. Guna in Civil Suit No. Unregistered A/2020 hereby affirmed. The petition fails and is hereby Dismissed in limine.