Madhya Pradesh High Court
Kailash Chandra Mittal vs Smt. Deepali Mittal on 17 December, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
WP-1464-2017
Kailash Chandra Mittal Vs. Smt. Deepali Mittal
Gwalior, Dated : 17-12-2021
Shri Abhishek Singh Bhadoriya, Counsel for the petitioner.
Shri Sanjay Kumar Dwivedi, Counsel for the respondents.
This petition under Article 227 of the Constitution of India has been filed seeking following relief:-
"In view of the facts and grounds mentioned in the writ petition and further in view of the documents annexed hereto, the humble petitioner prays that this Hon'ble Court may kindly be pleased to allow the writ petition and kindly set aside/quash the order dtd. 1.2.2017 (Annexure P/1) and the application (Annexure P/4) may kindly be dismissed in the interest of justice. Cost may also be awarded."
It is submitted by the counsel for the petitioner that the petitioner has filed a suit for declaration of title and permanent injunction. The petitioner and the respondent No. 2 are the real brothers. They had two houses and, accordingly, it was agreed that the petitioner would execute a relinquishment deed in favour of respondent in respect of one house, whereas respondent would execute a relinquishment deed in favour of the petitioner in respect of other house. It is submitted that although the petitioner has executed relinquishment deed in respect of one suit property, but the respondents did not keep their promise and, accordingly, suit has been filed.
It is submitted that the respondents No. 1 and 2 filed an 2 THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal application under Order 7 Rule 11 of CPC read with Section 151 of CPC alleging that the petitioner has valued the suit at Rs.10,40,000/- for the purposes of pecuniary jurisdiction, but has paid a fixed Court fee of Rs.1,000/-. Proper Court fee has not been paid as ad valorem Court fee is payable under the facts and circumstances of the case.
The petitioner filed his reply and submitted that the provisions of Order 7 Rule 11 of CPC are not applicable. It is submitted that a specific issue can be framed with regard to the sufficiency / insufficiency of the Court fee and only after the adjudication of the said issue, the petitioner would be liable to pay the Court fee, if any.
The Trial Court by the impugned order held that since the petitioner is the signatory of the relinquishment deed, therefore, if he wants to avoid the said document, then he has to pay the ad valorem Court fee. Since the petitioner himself has valued the suit property at Rs.10,40,000/- for the purpose of pecuniary jurisdiction, accordingly, it was directed that the petitioner must value of the suit on the market value of the property and thereafter pay the Court fee accordingly.
Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that the Trial Court failed to see that since the relinquishment deed was got executed by playing fraud on the petitioner, therefore, he is not required to pay the ad 3 THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal valorem Court fee.
Per contra, it is submitted by the counsel for the respondents that since the petitioner himself has executed relinquishment deed and by filing a civil suit, he wants to avoid the relinquishment deed, therefore, he must pay ad valorem Court fee and the Trial Court did not commit any mistake by directing the petitioner to value the suit on the basis of market price of the property and to pay the Court fee accordingly. Counsel for the respondents have relied upon the judgments passed by the Supreme Court in the case of Suhrid Singh alias Sardool Singh Vs. Randhir Singh and others reported in (2010) 12 SCC 112 as well as the judgments passed by this Court in the cases of Ambika Prasad and others Vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi and another reported in 2011 (3) MPLJ 184, Smt. Israt Jahan Vs. Rajia Begum and others reported in AIR 2010 MP 36 and Jagmohan Jadon Vs. State of MP reported in AIR 2020 MP 163.
Heard the learned counsel for the parties.
According to the plaint, the property in dispute is House No. 85, situated in Ward No. 5, Sant Kabir Marg, Jaura, District Morena. The petitioner had ½ share in the suit property, whereas respondents No. 1 and 3 had 1/4th share in the same as the same was jointly 4 THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal purchased by them from one Devendra Singh by registered sale deed dated 27.05.1999. Thereafter, the petitioner and the respondent No. 2 purchased another House No. 114, Ward No. 5 situated on Sant Kabir Marg, Jaura, District Morena and the petitioner as well as the respondent No. 2 had ½ share in the house. The petitioner is the real brother of the respondent No. 2, whereas respondent No. 1 is the wife of the respondent No. 2 and the respondent No. 3 is the wife of Rajendra Prasad, third brother of the petitioner as well as respondent No. 2. Thereafter, with passage of time, respondents with dishonest intention put an illegal pressure on the petitioner that both the property may be partitioned and, accordingly, it was agreed that the petitioner may relinquish his share in the House No. 85, Ward No. 5, situated on Sant Kabir Marg, Jaura, District Morena, whereas the respondent No. 2 would relinquish his share in the house No.114, Ward No. 5 situated on Sant Kabir Marg, Jaura, District Morena. Thereafter, the respondent No. 2 started demolishing and reconstructing the House No. 85, Ward No. 5 situated on Sant Kabir Marg, Jaura, District Morena. When it was objected by the petitioner, then he was informed that since both the parties have mutually agreed upon to relinquish their shares, therefore, plaintiff is also free to reconstruct the House No.114, Ward No.5 situated on Sant Kabir 5 THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal Marg, Jaura, District Morena. Thereafter, the relinquishment deed in respect of House No. 85 and House No. 114 were prepared. Since the petitioner was busy in election campaign of his wife, therefore, taking advantage of the situation, the respondents came to the house of the petitioner along with register of the Sub-Registrar office and obtained his signatures and took both relinquishment deeds with them on the pretext that the relinquishment deed which was to be executed by the respondent No. 2 shall be handed over to the petitioner on the next date. However, later on, the petitioner came to know that although the respondents have got the relinquishment deed registered which was executed by the petitioner in respect of House No. 85, but did not get the relinquishment deed registered in respect of House No. 114. Accordingly, the suit was filed.
From the plain reading of the pleadings, it is clear that the petitioner is claiming misrepresentation on the part of the respondents. The petitioner has not denied his signatures on the relinquishment deed. If the petitioner wants to avoid relinquishment deed, specifically when he himself is a party to the said document, then ad valorem Court fee is payable.
As no jurisdictional error could be pointed out by the counsel for the petitioner, therefore, the order dated 01.02.2017 (Annexure P- 6
THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal
1) is hereby affirmed.
The petition fails and is hereby dismissed.
The interim order granted on 01.03.2017 is hereby vacated.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.12.17 19:26:11 +05'30'