Madhya Pradesh High Court
Sardar Singh vs Shaitan Singh on 14 December, 2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. CR. No.162/2012
Parties Name Sardar Singh & Anr.
Vs.
Shaitan Singh & Others
Date of Judgment 14-12-2017
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for Yes
reporting
Name of counsels for parties Applicants: Shri Abhijeet Awasthi,
Advocate
Respondent No.2 to 6 and 10 : Shri Kapil
Patwardhan, Advocate Law laid down (1) As per Section 3 of Court Fees Act r/w Section 4 of the Suit Valuation Act, the plaintiff was bound to value the suit for the purpose of jurisdiction in accordance with its market value (2001 (5) MPHT 374) is followed.
(2) The decision of earlier Coordinate Bench, unless distinguished by Division Bench, is binding on the Bench of similar strength. Since the provisions of Suit Valuation Act and judgment of Kalyan Das was not considered in two later judgments of similar strength of Bench namely Shabbir Hussain and Dharamraj Singh, the earlier decision of Kalyan Das will be a binding precedent.
(Five Judge Bench in the case of Jabalpur Bus Operator is followed).
(3) The litigant must approach the Court with clean hands, clean mind, clean heart and clean objectives. A clever drafting or linguistic engineering adopted in a suit can be nipped in bud while deciding an application under Order 7 Rule 11 of CPC.
Significant paragraph numbers 4, 13, 14, 15,18
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CR. No. 162 of 2012
(Order)
14.12.2017
This application filed under Section 115 of the Code of Civil Procedure (CPC) takes exception to the order dated 17-04-2012 passed in RCS. No.26-A/12 by 13th Civil Judge Class-2, Bhopal.
2. Briefly stated, the facts are that the respondent No.1/plaintiff filed a suit for declaration and permanent injunction on 10-01-2012. Upon receiving notices in the said case, the present applicants/defendants No.10 & 11 filed an application under Order 7 Rule 11 r/w Section 151 of CPC on 20-03-2012 (Annexure A/3). The Court below heard the parties on the said application and rejected the said application by impugned order dated 17- 04-2012.
3. Shri Abhijeet Awasthi, learned counsel for the applicants assailed this order by contending that in the application preferred under Order 7 Rule 11 of CPC, the applicants had taken two fold objections. The first objection of the applicants was that the plaintiff has not valued the suit properly and accordingly Court fees is also not paid in accordance with the requirement of law. The second objection of the present applicants in the said application was that the plaintiff has prayed for a relief to declare the sale deed dated 01-06-1996 as null and void. The case of the plaintiff is that he is not the signatory to the said sale deed and said sale deed is a forged document. It is submitted that as per Article 56 of the Limitation Act for claiming the relief to declare the forgery of an instrument issued or registered, the period of limitation is "three years". By taking this Court to the plaint averments, it is urged that the plaintiff filed an appeal under Section 44 (1) of M.P. Land Revenue Code before Sub-Divisional Officer (S.D.O.), Tehsil Huzur, District Bhopal after obtaining information regarding aforesaid sale deed executed in the year 1996. It is contended that the plaintiff cleverly mentioned the appeal number in the plaint averments as Appeal No.36/09-10 whereas certified copy of the revenue order sheet of S.D.O. shows that the case number of said appeal is 36/Appeal/07-08. The
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CR. No. 162 of 2012said appeal was presented on 07-07-2008. The plaintiff in order to mislead the Court below and with a view to bring his suit within limitation, deliberately mentioned the year of institution of appeal wrongly and this fact was pointed out before the Court below. Thus, as per the plaint averments itself, the suit was barred by time because sale deed dated 01-06- 1996 is assailed in the suit filed on 12-01-2012 which is beyond the prescribed period of limitation. Shri Awasthi submits that the Court below has erred in rejecting both the grounds/objections taken by the applicants.
4. To elaborate, learned counsel for the applicants submits that the valuation of the suit was required to be done as per Section 4 of the Suit Valuation Act and Court fees was required to be assessed on the basis of Section 7 (iv) of the Court Fees Act. This Court in 2001 (5) MPHT 374 (Kalyan Das & Ors. vs. Narayan Singh & Ors.) considered both the statutory provisions namely Section 4 of the Suit Valuation Act and Section 7 of the Court Fees Act. After due consideration, this Court opined that since the plaintiffs have claimed independent relief of declaration and in case of such prayer the suit is governed by Section 4 of Suit Valuation Act r/w Section 3 thereof. In that event, the plaintiffs were bound to value the suit land for the purpose of jurisdiction in accordance with its market value. Shri Awasthi submits that the Coordinate Benches of this Court in the case reported in 2002 (1) MPLJ 458 (Dharamraj Singh vs. Vaidya Nath & Ors.) and 2002 (1) MPLJ 489 (Shabbir Hussain & Ors. vs. Naade Ali & Ors.) opined that for seeking relief of declaration and injunction, the suit is to be valued "according to the amount at which the relief sought is valued". It is argued that these two judgments delivered in Dharamraj Singh and Shabbir Hussain (supra) were rendered without considering the Section 4 of Suit Valuation Act and the earlier judgment of this Court in Kalyan Das (supra). To that extent, the subsequent judgments in Shabbir Hussain and Dharamraj Singh (supra) must be treated as per incurium.
5. Shri Awasthi, learned counsel for the applicants placed reliance on the judgment of a larger Bench of this Court reported in 2010 (4) MPLJ
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CR. No. 162 of 2012431 (Sunil Kumar Radhelia & Ors. vs. Awadh Narayan & Ors.). It is submitted that although in this judgment it was held that in a suit where plaintiff claimed that instrument is not executed by him or it was executed by practicing misrepresentation and fraud, he is not required to pay ad-
valorem court fees, this judgment of Full Bench was rendered without considering the judgment of Supreme Court in the case of Suhrid Singh vs. Randhir singh & Ors. (2010) 12 SCC 112. In the judgment of Division Bench reported in 2011 (3) MPLJ 184 (Ambika Prasad & Ors. vs. Shri Ram Shiromani & Anr.) the Bench considered this aspect and opined that if the judgment of Suhrid Singh (supra) would have been brought to the notice of the Full Bench in Sunil Kumar Radhelia (supra) the Full Bench would have taken the same view which was taken by Division Bench in Ambika Prasad (supra). Reliance is placed on Para 11 of the said judgment.
6. On the basis of this judgment, it is submitted that the suit is to be valued as per Section 4 of the Suit Valuation Act and proper court fees is to be paid by applying the parameters flowing from Section 7 (iv) of the Court Fees Act. Lastly, he placed reliance on a recent judgment of this Court in 2017 (1) MPLJ 203 (Manoj Jain & Ors. vs. Pramod Jain & Ors.) and urged that the value of the suit has to be as per market guidelines.
7. The second ground of attack on the impugned order is that as per the plaint averments itself it was clear before the Court below that the appeal under Section 44 of the Code was filed after getting detailed information about execution of sale deed dated 01-06-1996. Artistically, the number of appeal was wrongly mentioned as Appeal No.36/09-10 whereas the order sheet (Annexure A/5) shows that the said appeal was preferred on 07-07- 2008. Thus, there is no manner of doubt that before 07-07-2008 the plaintiff had gathered information about the execution of sale deed dated 01-06- 1996. If in the plaint, a deliberate attempt is made to mention the case number wrongly in order to gain advantage in the matter of bringing the suit within limitation, such illusion of a cause of action is required to be nipped in the bud at the first hearing by the Court below. In support of this
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CR. No. 162 of 2012contention, reference is made to (2007) 5 SCC 614 (Hardesh Ores (P) Ltd. vs. Hede & Company.
8. Shri Kapil Patwardhan, learned counsel for the respondent No.2 to 6 and 10 submits that he is appearing for co-defendants and he supports the stand of the present applicants.
9. Nobody appeared for the respondent No.1/plaintiff on 21-04-2017 and today in both the rounds.
10. I have heard the parties present at length and perused the record.
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 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
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CR. No. 162 of 2012judgments, 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 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 where 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
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CR. No. 162 of 2012Bench 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 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 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.
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CR. No. 162 of 201217. 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).
18. The second ground taken by the petitioner is regarding clever drafting of the plaint with a view to mislead the Court. This is trite law that litigation in the Court of law is not like a "game of chess." The litigant must approach the Court with clean hands, clean mind, clean heart and clean objectives. If litigant deliberately misleads the Court in order to get a relief which is otherwise not due to him, his petition/plaint etc. may be dismissed on this ground alone. [See ILR 2012 MP 2660 ()]
19. In the plaint, the plaintiff averred as under:-
^^o"kZ 2008 esa oknh dks bl rF; dh tkudkjh gqbZ fd jktLo vfHkys[k esa fookfnr Hkwfe dk bUnzkt mlds uke ij ugha gSA ;g tkudkjh izkIr gksrs gh oknh dks vR;ar vk'p;Z gqvk vkSj lgh rF;ksa dh tkudkjh ds fy, oknh us vius vf/koDrk Jh ;'koar flag ls lEidZ fd;k vkSj bl laca/k esa lEiw.kZ tkudkjh izkIr djus ds fy, funsZf'kr fd;kA ;g fd oknh ds vf/koDrk }kjk lgh rF;ksa dh tkudkjh lacaf/kr dk;kZy;ksa ls izkIr dh xbZ rks ;g rF; izdk'k esa vk;k fd fookfnr Hkwfe izfroknh Øekad 1 yxk;r 8 ds uke ij o"kZ 1996 esa iathd`r foØ; i= ds vk/kkj ij gLrkarfjr gks pqdh gSA mDr gLrkarj.k vkns'k dh lR;izfrfyfi izkIr djus ds i'pkr oknh }kjk ,d vihy varxZr /kkjk 44 ¼1½ e-iz- Hkw&jktLo lafgrk ds varxZr U;k;ky; Jheku vuqfoHkkxh; vf/kdkjh] rglhy gqtwj ftyk Hkksiky ds le{k izLrqr fd;k x;k] ftldk vihy Øekad 36@2009&10 gSaA ;g fd mDr jktLo vihy esa vuqfoHkkxh; vf/kdkjh }kjk fnukad 28@9@2010 dks vkns'k ikfjr djrs gq, ukekarj.k vkns'k fnukad 19@8@1996 fujLr dj fn;k vkSj iwoZ dh fLFkfr cgky dh xbZA** (Emphasis supplied)
20. A simple reading of plaint averments shows that the argument of Shri Awasthi has substantial force. As per these averments, the plaintiff gathered information that in revenue records, the land is not mutated in his name. Then, he contacted his counsel Shri Yashwant Singh and obtained complete information in this regard. After obtaining information about sale
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CR. No. 162 of 2012deed dated 01-06-1996, he filed appeal under Section 44 (1) of the Code before S.D.O. The certified copy of document shows that although number of appeal is rightly shown by the plaintiff, year of filing is deliberately changed from 2007-08 to 2009-10. I find force in the argument that this was deliberately done in order to show that his suit is within limitation. If the plaint averments and certified copy of Annexure A/5 dated 07-07-2008 are read conjointly, there will be not scintilla of doubt that the said appeal was preferred on 07-07-2008. Thus, it can be safely concluded that before 07-07-2008, the plaintiff had gathered knowledge about execution of sale deed dated 01-06-1996. Thus, the plaint was clearly barred by time. This shows that the plaintiff has made some engineering with the case number in order to project that his suit is within limitation. The Apex Court criticized said practice in the case reported in (1977) 4 SCC 467 (T. Arivandandam vs. T.V. Satyapal). The Apex Court observed as under:-
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepetently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC, taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist judge is the answer to irresponsible law suits."
The said judgment was again considered by Supreme Court in (1998) 2 SCC 70 (ITC Ltd. vs. Debts Recovery Appellate Tribunal). The Apex Court observed as under:-
"16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint."
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CR. No. 162 of 201221. After considering these two judgments, the Apex Court again in Hardesh Ores (supra) opined that on reading of all the averments of the plaint, it appeared that the cause of action for obtaining a registered conveyance deed from the defendants in favour of the plaintiff's first arose on 25-03-1987 when the entire loan amount was alleged to have been paid and an oral promise was given by the defendants to convey lands. On the basis of these plaint averments and earlier judgments of Supreme Court the Apex Court expressed its satisfaction that in such a case, the application under Order 7 Rule 11 of CPC should be allowed and the trial Court as well as High Court were justified in allowing the said application.
22. If the present case is examined on the anvil of principles laid down in aforesaid cases, it will be clear that as per the plaint averments and copy of order dated 07-07-2008, it was clear that suit was clearly barred by time. The Court below, in my opinion, has erred in not considering these material facts. Resultantly, order dated 17-04-2012 is set aside. The application filed by the present applicants under Order 7 Rule 11 of CPC is allowed. In the result, the suit filed by the plaintiff is dismissed.
23. The application is allowed. No cost.
(SUJOY PAUL) JUDGE mohsin Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2017.12.21 10:18:39 +05'30'