Madhya Pradesh High Court
Smt. Sheela Devi vs Smt. Manju Devi Sengar on 19 March, 2019
Equivalent citations: AIRONLINE 2019 MP 1411
1
In the High Court of Madhya Pradesh
WP 3512/2016
Smt. Sheela Devi vs. Smt. Manju Devi Sengar & Others
Gwalior, Dtd. 19/03/2019
Shri P. C. Chandil, counsel for the petitioner.
Shri KS Tomar, Senior Counsel with Shri ML Bansal, counsel for the
respondent No.1.
Shri Rajiv Shrivatava, counsel for the respondents No.4 to 6. Shri RK Soni, Govt. Advocate for the respondent No.7/State. This petition under Article 227 of the Constitution of India has been filed against the order dated 05/05/2016, passed by 17 th Civil Judge, Class- II, Gwalior in Civil Suit No.83-A of 2014 by which the petitioner has been directed to pay ad valorem Court fee.
The necessary facts for the disposal of the present petition in short are that a suit has been filed by the petitioner pleading inter alia that the petitioner and the respondents No.2 and 3 are real brother and sisters. The respondent No.4 is the widow of the petitioner's brother, namely, Jagdish Singh and the respondents No.5 and 6 are the sons of Late Jagdish Singh. The petitioner is a 75 year-old lady, therefore, she has appointed her relative Shiv Pratap Singh Sikarwar as Power of Attorney. It is alleged that on 05/09/2014, the respondent No.1 came on the suit land along with some unknown persons and had talked about the sale of the suit land. When the petitioner's Power of Attorney holder objected to it, then the respondent No.1 informed that she has purchased the land from the petitioner and the sale deed has been executed by the respondent No.2 on behalf of the 2 petitioner in the capacity of her Power of Attorney Holder. Thereafter, the matter was enquired into and it was found that the respondent No.2, by preparing a forged Power of Attorney in his favour, has executed a sale deed in favour of the respondent No.1 and the respondent No.1, in collusion with the revenue authorities, has got her name mutated and has got the land partitioned on the basis of the forged proceedings and now, an attempt is being made to further alienate the property and to dispossess the petitioner from the property in dispute. Therefore, a suit was filed seeking declaration and injunction that the petitioner is the title-holder of the land in dispute and the sale deed executed by the respondent No.2 in favour of respondent No.1 on 05/03/2003 is null and void, as well as the mutation order dated 20/06/2005 in favour of the respondent No.1 be declared as null and void and the order of partition dated 03/11/2004 passed by the Additional Tahsildar be also declared as null and void. The decree of permanent injunction was also sought restraining the respondents from interfering with the peaceful possession of the petitioner and it was prayed that unless and until the partition takes place, the respondent No.1 be restrained from alienating the property in dispute.
It appears that the respondent No.1 filed an application under Order 7 Rule 11 of CPC raising various objections. It was mentioned that the petitioner has sought a declaration that the sale deed dated 05/03/2003 executed by her Power of Attorney Holder, be declared as null and void, therefore, in fact, the petitioner is trying to avoid the effect and operation of sale deed dated 05/03/2003, therefore, she is liable to pay ad valorem Court 3 fee. Apart from the said objection, several other objections were also raised like that the suit is barred by limitation as well as that the petitioner has sought a declaration that the revenue authorities are null and void, therefore, the Civil Court has no jurisdiction to entertain the suit.
By order dated 05/05/2016, the trial Court partially allowed the application and while rejecting the contention of the respondents with regard to jurisdiction of the trial Court as well as with regard to question of limitation, has held that the petitioner should have paid the ad valorem Court fee. Accordingly, the petitioner has been directed to pay ad valorem Court fee under Section 7 (iv)(c) of the Court Fees Act.
Being aggrieved by the order passed by the Court below, it is submitted by the counsel for the petitioner that for entertaining an application under Order 7 Rule 11 of CPC, it is well-settled principle of law that only the plaint averements can be taken into consideration. It is submitted that in the plaint it is specially mentioned that the petitioner has not executed any Power of Attorney in favour of the respondent No.2 and thus, sale of the land in dispute to the respondent No.1 by the respondent No.2 on the strength of the forged Power of Attorney purportedly executed by the petitioner, is bad. Thus, it cannot be said that the petitioner is directly or indirectly party to sale transaction. Whether the Power of Attorney, on the basis of which the property has been sold by the respondent No.1 by virtue of Power of Attorney was a forged Power of Attorney or not, is a disputed question which can only be adjudicated by the Trial Court after recording of evidence. If the contention of the petitioner that she has never executed a 4 Power of Attorney in favour of the respondent No.2 and the respondent No.2, by preparing a Power of Attorney, has executed the sale deed in favour of the respondent No.1, then it cannot be said that the petitioner is a signatory to the sale transaction and under these circumstances, the suit for declaration with fixed Court fee is maintainable.
Per contra, it is submitted by the counsel for the respondents that the respondent No.2 had executed the sale deed on the strength of Power of Attorney executed by the petitioner, therefore, the petitioner was a signatory to the sale deed in an indirect manner and, therefore, when she tries to avoid the sale deed, then she has to pay the ad valorem Court fee.
Heard the learned Counsel for the parties.
In the present case, the objection with regard to valuation of the suit was raised by the respondent No.1 by filing an application under Order 7 Rule 11 of CPC. It appears that the written statement has also been filed so far. Thus, it is clear that for considering the objection raised by the defendant under Order 7 Rule 11 of CPC, the trial Court is required to go through the plaint averments only.
The Supreme Court in the case of P.V. Guru Raj Reedy represented by GPA Laxmi Nararayn Reedy and Another vs. P. Neeradha Reddy and Others reported in (2015) 8 SCC 331 has held as under:-
''5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under 5 any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial. '' Thus, whether the Power of Attorney was executed in favour of the respondent No.2 by the petitioner or not, cannot be looked into at this stage and the Court is only required to consider the plaint averments. In the plaint, the plaintiff has pleaded as under:-
''7- ;gfd] okfnuh }kjk dHkh Hkh izfroknh Øekad 2¼nks½ dks viuk eq[R;kjvke fdlh Hkh izdkj ls fu;qDr ugha fd;k gSA okfnuh }kjk dHkh Hkh izfroknh Øekad 2¼nks½ ds fgr esa dksbZ nLrkost eq[R;kjukes dk lEikfnr ugha fd;k gS] izfroknh Øekad 2¼nks½ dHkh Hkh okfnuh dk eq[R;kjvke ugha jgk gS ,oa izfroknh Øekad 2¼nks½ dks okfnuh ds LokfeRo dh oknxzLr Hkwfe foØ; djus dk dksbZ vf/kdkj ugha jgk gSA izfroknh Øekad 2¼nks½ }kjk oknxzLr Hkwfe ds laca/k esa izfroknh Øekad 1¼,d½ ds fgr esa lEikfnr fd;k x;k fookfnr foØ; i= iw.kZr% vf/kdkj foghu gksdj fuEu dkj.kksa ls 'kwU; gS%&
(i) ;gfd] okfnuh }kjk dHkh Hkh izfroknh Øekad 2¼nks½ dks viuk eq[R;kjvke fu;qDr ugha fd;k gSA okfnuh }kjk izfroknh Øekad 2¼nks½ dks oknxzLr Hkwfe foØ; djus gsrq fdlh Hkh izdkj ls vf/k--r ugha fd;k gSA izfroknh Øekad 2¼nks½ dks okfnuh dh vksj ls oknxzLr Hkwfe ds laca/k esa fookfnr foØ; i= lEikfnr djus dk drbZ dksbZ 6 vf/kdkj ugha FkkA
(ii) ;gfd] okfnuh }kjk oknxzLr Hkwfe fdlh Hkh izdkj ls izfroknh Øekad 1¼,d½ dks foØ; ugha dh gS] u gh dksbZ izfrQy okfnuh dks vnk fd;k x;k gSA oknxzLr Hkwfe okfnuh ds vkf/kiR; esa gksdj bldk dksbZ vkf/kiR; izfroknh Øekad 1¼,d½ dks ugha fn;k x;k gSA '' Thus, it is the contention of the petitioner that she has never executed the Power of Attorney in favour of the defendant No.2 and the defendant No.2 was never given any authority or power to execute the sale deed on her behalf and even no consideration amount has been paid to the petitioner. It is the case of the petitioner that the sale deed, on the strength of forged Power of Attorney, has been executed by the respondent No.2 in favour of the respondent No.1. Under these circumstances, prima facie, it cannot be said that the petitioner had executed the sale deed through her Power of Attorney Holder and therefore, she cannot be said to be a party to the sale transaction.
Under these circumstances, this Court is of the considered opinion that the suit with fixed Court fee is maintainable. However, the dispute that whether the petitioner had executed a Power of Attorney in favour of the respondent No.2 or not, is a disputed question of fact which can be adjudicated by the Trial Court only. Under these circumstances, it is directed that the trial Court shall specifically frame an issue in this regard and if it is found that the petitioner had executed a Power of Attorney in favour of the respondent No.2, then whether the decree is granted or suit is dismissed , but the petitioner shall be liable to pay the ad valorem Court fee. Thus, this Court is of the considered opinion that the question of Court fee can be deferred at 7 this stage with the direction to the Trial Court to decide the same along with other issues and at the time of passing the decree (Whether decreeing the suit or dismissing the suit), a specific order be passed by the Trial Court with regard to the fact that whether the Court fee paid by the petitioner is in accordance with law or she is required to pay the ad valoremn Court fee. If it is held that the petitioner is liable to pay the ad valormen Court fee, she would pay the same, within the time so fixed by the Trial Court.
With the aforesaid observation, this petition is finally disposed of.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2019.03.25 16:12:56 +05'30'