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2021 DIGILAW 153 (MP)

Omprakash Sahu v. Dilip Kumar Sahu

2021-02-15

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. With the consent of the learned counsel for the parties, the matter is finally heard. 1. The present petition is being filed under Article 227 of the Constitution of India challenging the order dated 22.12.2020, whereby the application filed under Order 7 Rule 11 of CPC has been allowed and the petitioners have directed to pay the ad valorem court fees on the civil suit filed by them. 2. It is pointed out that the civil suit was filed by the petitioners for seeking declaration and injunction with respect to the property in question and also for declaring the Will dated 22.1.2019 as null and void as against the plaintiff/petitioners. The suit was valued for Rs. 1,01,000/- for declaration and injunction and accordingly the fixed court fees was paid. It is pointed out that the valuation of the court fees is required to be done only on the basis of pleadings of the plaint and the nature of reliefs sought. It is argued that the petitioners have sought for the following reliefs in the civil suit: ^^vr,o Jheku th ls ÁkFkZuk gS fd oknhx.k ds fgr esa Áfroknh ds fo#) fuEu vk'k; dk t;i= fMØh Ánku dh tkos& v- ;g ?kksf"kr fd;k tkos fd eFkqjks ckbZ ifRu Lo0 Jh uRFkw yky lkgw fuoklh jktik;xk jksM+ u;kcktkj y'dj Xokfy;j }kjk laikfnr olh;rukek rkjh[kh 22&1&2019 ¼ckbZl tuojh nks gtkj mUuhl½ oknhx.k ds eqdkcys 'kwU; vf/kdkj foghu o O;FkZ gksdj oknhx.k ij ca/kudkjh ugha gSA c- oknh x.k ds fgr esa Áfroknh ds fo#) bl vk'k; dh LFkkbZ fu"ks/kkKk tkjh dh tkos fd Áfrokn oknxzLr Hkou dks gLrkarj.k u djs u fdlh Ádkj dh rksM+QksM+ dj edkfu;r ds Lo#i dks cnys rFkk oknxzLr d`f”k Hkwfe dks fdlh Hkh Ádkj ls foØ; gLrkarj.k vkfn u djs u djkosA l- vU; dksbZ lgk;rk U;k;ksfpr gks Ánku dh tkosA n- Ádj.k O;; oknh dks Áfroknh ls fnyk;k tkosA** 3. It is argued that looking to the nature of the reliefs which has been sought by the petitioners only for declaration and the court fees is required to be paid which has been paid by the petitioners and as far as injunction part is concerned i.e. consequential relief consequent to declaration, therefore, no ad valorem court fees is required to be paid in the suit. The order impugned is bad in law and he has prayed for quashment of the impugned order. The order impugned is bad in law and he has prayed for quashment of the impugned order. He has relied upon the judgment passed by the Coordinate Bench of this Court in the case of Sanik Nagar Durga G.N. 5 Samiti Vs. Indore City Improvement Trust, 1983 MPWN 66 . He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of Shamsher Singh Vs. Rajinder Prasad, AIR 1973 SC 2384 and has argued that expression "consequential relief" is being considered by the Hon'ble Supreme Court and has held that expression "consequential relief" in Section 7 (iv) (c) of Court Fees Act means some relief which would follow strictly from the declaration given, the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of declaration as a substantial relief. He has further relied upon the judgment passed in the case of Varud Ahmed Vs. Nihal Ahmed, 1996 (1) MPWN 235 . In the case of Ashok Kumar Gehani and another Vs. Ramhet Agrawal and another, 2007 (III) MPWN 86 , wherein it was categorically held that the plaintiffs not being party to the sale deed nor claiming through vendor can sue for mere declaration and not liable to pay ad valorem court fees. In such circumstances it is argued that the impugned order is unsustainable and deserves to be set aside. 4. Per contra counsel appearing for the respondents has supported the impugned judgment and has argued that the petitioners has sought declaration of title and also sought a consequential relief of declaring the Will dated 22.1.2019 as null and void and further consequential relief that the defendant not to create any third party interest nor make any damage to the property nor change the physical nature of the property. In such circumstances it cannot be said that the other reliefs are not being claimed by the petitioner. The relief which has been claimed does not fall under the definition of consequential relief as held by the Hon'ble Supreme Court in the case of Shamsher Singh (supra). In such circumstances, the order impugned has rightly been passed by the learned Trial Court and calls for no interference in the present writ petition. The relief which has been claimed does not fall under the definition of consequential relief as held by the Hon'ble Supreme Court in the case of Shamsher Singh (supra). In such circumstances, the order impugned has rightly been passed by the learned Trial Court and calls for no interference in the present writ petition. It is argued that the petition is being filed under Article 226 of the Constitution of India having supervisory jurisdiction and a very limited scope for interference. Therefore, he has relied upon the judgment passed in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329 and has prayed for dismissal of the writ petition. 5. Heard the learned counsel for the parties and perused the record. 6. From perusal of the record it is evident that the civil suit was filed claiming the relief of declaration with respect to Will dated 22.1.2019 as null and void as against the plaintiff and also claiming the relief of injunction not to create any third party interest and not to change the nature of the property in question. Admittedly the petitioner was not a party to the Will dated 22.1.2019 and the declaration is being sought on the ground that the property belong to ancestors of the petitioners and forged Will is being prepared which is put to challenge in the civil suit yet got executed and registered on 23.1.2019 and when the aforesaid fact was came to the knowledge of the plaintiff/petitioners, they have immediately filed the civil suit. The law with respect to the payment of the ad valorem court fees has been settled by the Hon'ble Supreme Court of India in the large number of cases. In Shamsher Singh (supra) the expression "consequential relief" has been defined by the Hon'ble Supreme Court of India and it is held as under: "A consequential relief would be a relief which in absence of a declaration in favour of the party seeking it, cannot be granted. If the plaintiff who is a party to the deed or earlier decree or any other proceeding wants to avoid it, then without seeking a declaration that such proceedings or documents were void. He cannot seek an injunction against the other party that the other party be restrained from taking benefit from the sale deed or executing the decree. If the plaintiff who is a party to the deed or earlier decree or any other proceeding wants to avoid it, then without seeking a declaration that such proceedings or documents were void. He cannot seek an injunction against the other party that the other party be restrained from taking benefit from the sale deed or executing the decree. In such a case unless the declaration is granted, no injunction would be issued. An injunction in such cases would be a consequential relief of the declaration." 7. The relief which has been sought by the petitioners in the present case does not appear to have fallen in the definition of "consequential relief". The petitioners have not only sought declaration, but has sought other reliefs, as permanent injunction not to make changes in the property and further to declare Will dated 22.1.2019 as null and void against the petitioners. In terms of the judgment passed by the Court in the case of Lakshmikant Dube Vs. Smt. Piyaria, 2002 (II) MPWN 184 the relief which has been claimed does not fall under section 7 (iv) (c) of the Court Fees Act, 1870. Under the supervisory jurisdiction under Article 227 of the Constitution of India the scope for interference is limited as has been held by the Hon'ble Apex Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329 , in which Hon'ble Apex Court held as under: "(a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c). Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised." Thus, the petitioner is liable to pay the ad valorem court fees. The order impugned passed by the learned Trial Court has rightly been passed does not call for any interference in the present writ petition. 8. The petitioner is directed to comply with the Trial Court's order and deposit the ad valorem court fees within a period of thirty days from today. 9. Accordingly, the petition filed by the petitioners is hereby dismissed. No order as to costs. E-copy/Certified copy as per rules/directions.