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2024 DIGILAW 237 (CHH)

Prabodh Pathak (Advocate), S/o. Shri Shivshankar Pathak v. Nirmal Parakh, S/o. Jasraj Parakh

2024-03-14

NARENDRA KUMAR VYAS

body2024
ORDER : 1. The petitioner/plaintiff has preferred the instant writ petition under Article 227 of the Constitution of India, assailing the order dated 24-08-2021 passed by the learned XIIIth Civil Judge, Class-II, District Raipur in Civil Suit No. 149-A/2021 by which the learned trial Court though rejected the application file under Order 7 Rule 11 of C.P.C. but has directed the plaintiff/petitioner to affix the proper court fees on the valuation as mentioned in the sale deed. 2. Brief facts as reflected from the record are that the plaintiff has filed civil suit for declaring the sale deed dated 16-2-2021 as without jurisdiction, illegal and void and not binding upon the plaintiff with regard to property bearing Khasra No 644/462, area 560 sq.ft and Khasra No 644/663 area 50 sq.ft., total 610 area 610 sq.ft situated at Ward No. 68, Madhavrao Sapre Ward, presently Ward No. 69, Mouja Raipura, Patwari Halka No. 104/57, R.N.M, Raipur-1, Tahsil and District Raipur wherein a house in the ground and first floor have been constructed. It has been contended in the plaint that the plaintiff and defendants are known to each other. The plaintiff has taken some financial assistance by way of loan from defendant No. 1 to the tune of Rs. 10 lacs on 07.07.2019 and 06.12.2019 Rs. 10 lacs through cheque, as such, he has received Rs. 20 lacs. 3. It has also been contended that the plaintiff by profession is an Advocate and when he was searching some document in the Registration Office, Raipur in connection with his professional work, it has come to his knowledge that on 16-2-2021 without intimation to the plaintiff, the suit property has been sold by him for sale consideration of Rs.10,00,000/- on 7-9-2019 and on 6-12-2019 Rs.10,00.000/-, thus total Rs.20,00,000/- which has been purchased by the defendant No.2. As such, the sale deed is without jurisdiction. It is also case of the plaintiff that the defendants with collusion of Deputy Registrar, executed the sale deed and also recorded their names in the revenue records, as such, the sale deed dated 16-2-2021 is void ab initio and without jurisdiction, illegal and not binding upon the plaintiff. 4. As such, the sale deed is without jurisdiction. It is also case of the plaintiff that the defendants with collusion of Deputy Registrar, executed the sale deed and also recorded their names in the revenue records, as such, the sale deed dated 16-2-2021 is void ab initio and without jurisdiction, illegal and not binding upon the plaintiff. 4. The defendants have not filed their written statements, but they have filed an application under Order 7 Rule 11 of CPC contending that though the plaintiff has pleaded that he has executed unregistered agreement in favour of the defendant No. 1 but from bare perusal of the document, it is quite vivid that it is a registered document and the plaintiff has not challenged the validity of the said agreement. It is also case of the defendant that the plaintiff has also executed registered power of attorney but has not challenged the validity of the power of attorney and when the power of attorney is in existence and the sale deed has been executed as per the power of attorney as such, the relief sought by the plaintiff is consequence relief of declaration of registered agreement, power of attorney and registered sale deed, as such, the suit for declaration is not maintainable. It has also been contended that the plaintiff has not affixed the proper court fees as the registered power of attorney is in existence and the in the present suit, he has not challenged the same. It has been contended that the plaintiff is party to the sale in view of the registered power of attorney, as such, the proper court fee on sale consideration of Rs. 20 lac should be affixed, therefore, the suit is not maintainable. 5. The plaintiff has filed reply to the application contending that the defendants by committing fraud with the plaintiff utilising the power of attorney have executed the sale deed on 16-2-2021 which is without jurisdiction, illegal, void and is not binding upon the plaintiff, therefore, declaration must be stopped and he has properly valued the suit. 6. The learned trial Court vide its impugned order dated 24.08.2021 has rejected the application under Order 7 Rule 11 of C.P.C. but directed the petitioner to deposit the difference of court fee as per the valuation made in the sale deed. This order is being assailed by the petitioner. 7. 6. The learned trial Court vide its impugned order dated 24.08.2021 has rejected the application under Order 7 Rule 11 of C.P.C. but directed the petitioner to deposit the difference of court fee as per the valuation made in the sale deed. This order is being assailed by the petitioner. 7. Learned counsel for the petitioner would submit that the court fees payable in the civil suit at which the plaintiff has valued the relief sought for, for the purpose of court fee can determine the value for the jurisdiction in the suit and not vice versa. He would further submit that the court fee payable on a plaint is to be decided on the basis of allegations made in the plaint and on the substantive relief sought. It has also been submitted that the question as to whether the suit valued by the plaintiff is correctly arrived at or not, is of no consequence to the court at this stage and pleadings in the suit have to be understood in entirety to draw the nexus of ultimate relief sought for in the plaint. He would further submit that the plaintiff has evaluated the suit for pecuniary jurisdiction and claimed for declaration when the court fee is payable according to the schedule of the court fees and applicable to this case. As such the order passed by the learned court below is illegal and deserves to be set aside by this court. To buttress his submissions he has drawn attention of this court towards judgment of Hon'ble Supreme Court in Kewal Krishan vs. Rajesh Kumar and others etc, (Civil Appeal No 6989-6992 of 2021 (arising out of SLP (C) No.2033-2036 of 2016) decided on 22-11-2021, judgment of Division Bench of Hon'ble High Court of Madhya Pradesh in Dharamraj Singh vs. Vaidya Nath Prasad Khare, reported in 2002 (1) MPHT 301 and also the judgment of Hon'ble High Court of Madhya Pradesh in Saya Jeet vs. Balle Singh, reported in 2014 (8) LAWS (MPH) 171. He has referred to the judgment of Hon’ble Supreme Court in case of Saijeeth vs. Balle Singh, reported in AIR 1958 SC 24. He has referred to the judgment of Hon’ble Supreme Court in case of Saijeeth vs. Balle Singh, reported in AIR 1958 SC 24. It has also been contended that the sale deed has been fraudulently executed, as such as per the Court Fee Act, 1870, Section 7 (iv) 2 Entry 17 (iii) he has done the valuation of court fee which is proper and would pray for setting aside the impugned order. 8. On the other hand, learned counsel for the respondents/defendants opposing the aforesaid submissions would submit that since the plaintiff through power of attorney holder is a party to this case, therefore, he is required to pay the ad valorem court fees as per the law laid down by the Hon'ble Supreme Court in Suhrid Singh @ Sardool Singh vs. Randhir Singh and others, reported in (2010) 12 SCC 112 and the judgment of Hon'ble Supreme Court in Kalapataru Sales Private Limited vs. Mukesh Kumar Chouradiya, reported in 2016 SCC Online Chh. 1253 and would submit that the plaintiff is an executant of sale deed as the sale deed has been executed as per the power of attorney given by the plaintiff and the plaintiff has made any pleading with regard to illegality of the power of attorney. It has also been contended that it is not the allegation of the plaintiff that any person who is not known to him has executed the sale deed by impersonating him. On the contrary, plaintiff has made averments that the defendant No.2 has executed the sale deed in favour of defendant No.1 which is known to him. Thus, he would pray for dismissal of the writ petition. 9. I have heard learned counsel for the parties and perused the record and also the plaint averments as well as the application submitted under Order 7 Rule 11 of CPC. 10. For better understanding the issue raised in this petition, it is necessary for this court to extract certain provisions of Power of Attorney Act, 1882. The relevant Sections 1-A and 2 of the Power of Attorney Act, 1882 are extracted as under:- “[1A. Definition.--In this Act, "power-of-attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it.] 2. The relevant Sections 1-A and 2 of the Power of Attorney Act, 1882 are extracted as under:- “[1A. Definition.--In this Act, "power-of-attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it.] 2. Execution under power-of-attorney.—The donee of a power-of-attorney may, if he thinks fit, execute or do any 4*** instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every 4*** instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force”. 11. The plaintiff in his pleadings has categorically stated that the sale deed has been executed on 16-2-2021 by the defendant No.2 in favour of defendant No.1 treating himself to be power of attorney holder, as such sale deed executed in favour of defendant No.2 is without jurisdiction, illegal and not binding upon him. Contentions were made by the defendants in their application wherein they have clearly mentioned that since the plaintiff executed the power of attorney in favour of defendant No.1, as such he is also party to this case, therefore, proper court fees has to be affixed. From the averments made in the application, it is quite vivid that the defendants in their application filed under Order 7 Rule 11 of CPC have clearly mentioned that the plaintiff has executed the registered power of attorney which was in existence and at the time of sale deed, the said power of attorney was never challenged by the plaintiff and there is no whisper about the execution of power of attorney, thus this fact was within the knowledge of the plaintiff himself and also considering that there is no pleading or material on record to suggest that power of attorney holder has exceeded its authority given to him by person who has executed power of attorney. As such, prima facie, it cannot be said that the petitioner was not party to the execution of sale deed in view of the fact that execution of power of attorney and no averment regarding genuineness or truthness of power of attorney has been raised in the plaint. 12. It is well settled position of law that any action taken by the power of attorney will deem to have been done by the person who is an executant of power of attorney. The law with regard to power of attorney has been settled by the Hon'ble Supreme Court in case of State of Rajasthan and others vs. Basant Nahata, reported in (2005) 12 SCC 77 wherein Hon’ble the Supreme Court has held in para 13 and 14 as under:- “13 A grant of power of attorney is essentially governed by Chapter X of the Indian Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well-known, a document of convenience. 14. Besides the Indian Contract Act, the Power of Attorney Act, 1882 deals with the subject. Section 1A of the Power of Attorney Act defines power of attorney to include any instruments empowering a specified person to act for and in the name of the person executing it. Section 2 of the said Act reads, thus: "Execution under power-of-attorney The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force." Execution of a deed of power of attorney, therefore, is valid in law and subject to the provisions of the Act is not compulsorily registrable”. 13. Again Hon’ble the Supreme court in case of Kasthuri Radhakrishna & others Vs. M. Chinniyan & another reported in (2016) 3 SCC 296 has held at paragraph 36 as under:- “36. The law relating to power of attorney is governed by the provisions of the Power of Attorney Act, 1982. It is well settled therein that an agent acting under a power of attorney always acts, as a general rule, in the name of his principal. Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself. An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal. Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself. An agent, therefore, never gets any personal benefit of any nature. Applying the aforesaid principle, this Court in Suraj Lamp and Industries Private Limited (2) vs. State of Haryana & Anr., (2012) 1 SCC 656 held in paragraphs 20 and 21 as under: “20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. 21. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. 21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, this Court held: (SCC pp. 90 & 101, paras 13 & 52) “13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. 52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.” An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.” This was followed by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706 (para 20).” 14. It is pertinent to mention here that the plaintiff in reply to the application under Order 7 Rule 11 of CPC has also nowhere denied the execution of the power of attorney but in his reply he has stated that fraudulently by using the power of attorney sale deed has been executed. Whether the power of attorney holder has exceeded its jurisdiction while executing the sale deed or not can be determined only after recording of the evidence and at this juncture prima facie even in the pleadings the petitioner has nowhere raised plea about exceeding of the power conferred upon the power of attorney holder by virtue of its power of attorney. As such, it clearly, prima facie, establishes that the petitioner is party to the suit, therefore, the judgments cited by the petitioner are not applicable to the facts of the present case. The judgment of Hon'ble Supreme Court in Suhrid Singh @ Sardool Singh (supra) is distinguishable on the facts as in that case the plaintiff was not party to the suit whereas in the present case, through power of attorney he is party to the case. The co-ordinate Bench of this court in case of Kalapataru Sales Pvt. Ltd (supra), has considered the provisions of the court fees and held in para 9 of the judgment that the executant of sale deed was known to the petitioner. Therefore, the co-ordinate Bench of this court has directed for payment of court fees on the valuation of the same deed. In the present facts of the case, the plaintiff in his entire pleadings has no where mentioned about the execution of power of attorney and this fact was brought on record by the defendants in their application filed under Order 7 Rule 11 of CPC. Thus, concealing the fact. plaintiff has sought to claim relief of exemption from court fees which learned trial court has rightly rejected. 15. Thus, concealing the fact. plaintiff has sought to claim relief of exemption from court fees which learned trial court has rightly rejected. 15. Considering the above stated legal position with regard to the power of attorney and considering the pleadings made by the plaintiff, prima facie it is quite vivid that the sale deed of the suit property has been executed through the power of attorney, as such it can be held that the plaintiff is party to the sale deed through its power of attorney holder, therefore, the proper court fee as per the valuation of the sale deed should be affixed, as such, the learned trial Court while directing for affixing the court fee as per the value mentioned in the sale deed, has not committed any illegality or perversity, therefore, the writ petition is liable to be dismissed and accordingly it is dismissed. 16. However, it is made clear that this Court has not commented upon the merits of the contentions of the plaintiff as it has only examined material to determine the question posed before this Court. It is also made clear that all the contentions made while deciding the writ petition are kept open. The learned trial Court will decide the same without being influenced from any of the observation made by this court on its own merits considering the evidence, material on record. 17. Accordingly, the writ petition being devoid of merit is liable to be dismissed and is hereby dismissed.