Madhya Pradesh High Court
Ramashray Kotwar vs Rishi Kumar Tiwari on 18 March, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P. No.1377/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 18th OF MARCH, 2024
MISC. PETITION No. 1377 of 2024
BETWEEN:-
RAMASHRAY KOTWAR S/O SHRI ANUSUIYA PRASAD
KOTWAR, AGED ABOUT 72 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE AND POST BANKUIYA,
POLICE STATION CHORHATA, TEHSIL HUZUR,
DISTRICT REWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANOJ KUMAR PANDEY - ADVOCATE)
AND
1. RISHI KUMAR TIWARI S/O SHRI GORELAL
TIWARI, AGED ABOUT 35 YEARS, OCCUPATION:
BUSINESS R/O VILLAGE AND POST MEHUTI,
TEHSIL BIRSINGHPUR, DISTRICT SATNA
(MADHYA PRADESH)
SANJAY SINGH S/O SHRI SHER BAHADUR SINGH,
2.
AGED ABOUT 42 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE KUBARI POST
MEHUTI, TEHSIL BIRSINGHPUR, DISTRICT
SATNA (MADHYA PRADESH)
VIJAY KUMAR TIWARI S/O SHRI GORELAL
3.
TIWARI R/O VILLAGE AND POST MEHUTI,
TEHSIL BIRSINGHPUR, DISTRICT SATNA
(MADHYA PRADESH)
4. STATE OF MADHYA PRADESH THROUGH
COLLECTOR REWA, DISTRICT REWA (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL FOR
2 M.P. No.1377/2024
RESPONDENT NO.4/STATE)
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been filed against order dated 03.11.2023 passed by Third District Judge, Rewa, District Rewa in RCSA No.24/2014 by which petitioner has been directed to pay ad valorem court fee.
2. It is submitted by counsel for petitioner that although petitioner is an executant of the sale deed in question but it was obtained by fraud.
3. The Supreme Court in the case of Suhrid Singh vs. Randhir Singh and others, reported in (2010) 12 SCC 112 has held that if the plaintiff is an executant of the document, then he has to seek cancellation of document and will be required to pay the ad valorem court fee. By the impugned order also petitioner has been directed to pay ad valorem court fee.
4. It is submitted by counsel for petitioner that since the sale deed was obtained by fraud, therefore, a fixed court fee is payable.
5. However, a coordinate Bench of this Court by judgment passed in the case of Sardar Singh and Another Vs. Shaitan Singh and Others reported in 2018 (II) MPJR 30 has held as under:
"11. The first objection of the applicants is relating to valuation of the suit and payment of adequate Court fees. In Para 2 of the application preferred under Order 7 Rule 11 of the CPC, the applicants have specifically raised the objection that the plaintiff has not valued the suit properly and he is required to pay requisite Court fees. The Court below rejected the said contention by holding that as per plaint averments, the sale deed is alleged to be a forged document. In that 3 M.P. No.1377/2024 event, the plaintiff is not required to pay ad valorem court fee. The plaintiff is required to pay fixed court fees.
12. In the case of Kalyan Das (supra), Justice Deepak Misra (as his Lordship then was) considered the impact of Section 4 of Suit Valuation Act and Section 7 (iv)(c) of the Court Fees Act. The Court opined as under:-
"On a close scrutiny of the plaint it is apparent that the plaintiffs have claimed independent relief of declaration and in the case of independent relief of declaration the suit is governed by Section 4 of the Suits Valuation Act read with Section 3 there of. It cannot be disputed that the plaintiffs were bound to value the suit land for the purpose of jurisdiction in accordance with its market value and they have so done."
13. As rightly pointed out, in the two subsequent judgments in Shabbir Hussain and Dharamraj Singh (supra), this Court has not considered the earlier judgment rendered in the case of Kalyan Das (supra). In addition, I find substance in the argument of Shri Awasthi that in these two subsequent judgments, Section 4 of the Suit Valuation Act has also not been considered.
14. A Full Bench of this Court in the case of Jabalpur Bus Operators vs. State of M.P. & Anr. AIR 2003 MP 81 (Special Bench five Judges) opined as under:-
"In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High 4 M.P. No.1377/2024 Courts and the subordinate Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh's case (AIR 2001 Madhya Pradesh 268) (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act"
15. In the light of this, it is clear that if earlier judgment rendered by this Bench of same strength is not considered by the subsequent judgments, it is the earlier judgment which will prevail and will be a binding precedent. Considering the aforesaid, in my view, the judgment of this Court in the case of Kalyan Das (supra) will hold the field for the purpose of valuation of the suit and payment of Court fees.
16. So far as the allegations in the plaint averments that sale deed is a forged document is concerned, this point is no more res integra. A Full Bench of this Court in the case of Sunil Radhelia (supra) opined that here the plaint averment is that the instrument is executed by practicing fraud, the plaintiff is not required to pay ad valorem court fee. However, this Full Bench judgment was again considered by a Division Bench in the case of Ambika Prasad (supra). The Division Bench found that the judgment of Supreme Court in the case of Suhrid Singh (supra) was not brought to the notice of the Full Bench in the 5 M.P. No.1377/2024 case of Sunil Radhelia (supra). Thus, the result is inevitable which is pointed out in Para 11 & 12 of the judgment of Ambika Prasad (supra). The same read as under:-
"11. In the case at hand, plaintiff No.1 was admittedly an executant of the sale deed sought to be declared as void. The sale deed also bears his thumb impression and the sale consideration is clearly mentioned therein. The plaintiffs in their suit for declaration have prayed that the sale deed be declared as void by alleging that it was executed by playing fraud and misrepresentation. The relief claimed implies a relief for cancellation of sale deed because plaintiffs No.1 (now dead) was an executant of the same. The sale deed, in our considered opinion, is voidable as the apparent state of affairs is a real state of affairs and the plaintiffs, who have alleged otherwise, are obliged to prove it as void. The plaintiffs, therefore, have to pay ad valorem Court fee on the consideration stated in the sale deed. As held by the Supreme Court in Suhrid Singh (supra), had plaintiff No.1 been a non-executant the plaintiffs could have merely paid a fixed Court fee provided in Entry 17 (iii) of Second Schedule of the Act.
12. It is true that in Sunil Radhelia (supra), the Full Bench has held that ad valorem Court fee is not payable when the plaintiff makes an allegation that the instrument is void and not binding on him even if he be the executant of the document. But it is equally true that the decision of the Supreme Court in Suhrid Singh (supra), was not placed before the Full Bench and, therefore, it is not referred therein. Had the decision of Suhrid Singh been brought to the notice of the Judges of Full Bench, in all probability 6 M.P. No.1377/2024 they too would have taken the same view which we have taken."
(Emphasis supplied) Para 11 of this judgment, in no uncertain terms, makes it clear that in a real state of affair, the plaintiff is required to prove a document as void. In that event, the plaintiff has to pay ad valorem court fee on the consideration stated in the sale deed.
17. In view of the aforesaid, it is clear that even if the allegation of plaintiff is that sale deed is a forged document, if in the sale deed he is shown to a signatory/party, he is required to pay ad valorem court fee. The Court below has erred in not examining the effect of Section 4 of Suit Valuation Act and decided contrary to the law laid down in the case of Ambika Prasad (supra)."
6. Accordingly, no jurisdictional error was committed by Trial Court.
7. Ex-consequenti, the order dated 03.11.2023 passed by Third District Judge, Rewa, District Rewa in RCSA No.24/2014 is hereby affirmed.
8. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE vc VARSHA Digitally signed by VARSHA CHOURASIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, CHOUR 2.5.4.20=f460d4685ef5a4622238f0b59b7 8c2407fd3ee2f619d9ce8e428c224c23ec 8ac, postalCode=482001, st=Madhya Pradesh, serialNumber=A0506346908D8FDC4A2D ASIYA A9968A85B01E1D95EF7D163055356079 8626817C4267, cn=VARSHA CHOURASIYA Date: 2024.03.19 18:52:00 +05'30'