Karnataka High Court
Sri. Abhijeet S./O. Somanath Bhatkande vs Sri. Ramachandra S/O. Rama Gurav on 28 August, 2020
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
CIVIL REVISION PETITION NO.100125/2018
BETWEEN
SRI. ABHIJEET S./O. SOMANATH BHATKANDE
AGED ABOUT 37 YEARS,
OCC:BUSINESS AND AGRICULTURE,
R./AT H.NO.303/36, PATIL MALA, BELAGAVI.
... PETITIONER
(BY SRI.MRUTYUNJAY TATA BANGI, ADVOCATE)
AND
1. SRI. RAMACHANDRA S/O. RAMA GURAV
AGED ABOUT 73 YEARS,
OCC:AGRICULTURE,
R/.AT JANEWADI, POST NAVAGE,
TQ AND DIST:BELAGAVI-590010.
2. SRI MADHU S/O. DADOBA GURAV
AGED ABOUT 53 YEARS,
OCC:AGRICULTURE,
R/.AT JANEWADI, POST NAVAGE,
TQ AND DIST:BELAGAVI-590010.
... RESPONDENTS
(BY SRI.Y G GUMAJ, ADVOCATE FOR R1) (R2-SERVED)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER
DATED 14.09.2018 PASSED IN O.S.NO.223/2016 ON THE FILE OF
THE IV ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI,
REJECTING THE I.A. FILED UNDER ORDER 7 RULE 11 OF C.P.C.
THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The learned counsel for the petitioner and the learned counsel for the first respondent have been heard with their consent for final disposal of this petition. The second respondent though served, has remained absent.
2. This petition is by the second defendant in O.S.No.223/2016 on the file of the IV Additional Senior Civil Judge and JMFC, Belagavi (for short, 'the Civil Court'). The petitioner is aggrieved by the impugned order dated 14.09.2018 because the Civil Court by this order has rejected the petitioner's application under Order VII Rule 11 of Code of Civil Procedure (for short, 'CPC').
3. The suit property is an agricultural land measuring 4 acres 11 guntas in R.S.No.196/1/4 of Navage village, Belagavi Taluk and District (subject property). The first respondent has filed the suit in O.S.No.223/2016 against the petitioner and the second 3 respondent seeking declaration that the document styled as power of attorney dated 06.11.2015 ( allegedly executed by the first respondent in favour of the second respondent) and the subsequent sale deed executed in favour of the petitioner (by the second respondent as the power of the first respondent) are null and void and do not confer any title in favour of either the petitioner or the second respondent over the subject property with the prayer for consequential relief of perpetual injunction restraining the petitioner and the second respondent from interfering or obstructing or disturbing with his possession of the subject property.
4. The petitioner, who has filed written statement denying the plaint averments and asserting that he is a purchaser of the subject property for true value, has filed application under Order VII Rule 11 of CPC for rejection of the plaint. The petitioner in support of this application has asserted that the impugned sale deed in his favour is executed for a value of 4 Rs.10,65,000/-. The first respondent, who is impugning the sale deed as well as the Power of Attorney, should have valued the suit based on such consideration and paid proper court fee. The proper valuation of the suit would be under the provisions of Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, 'the KCF & SV Act'), and because the suit is improperly valued and proper Court fee is not paid, the suit is liable to be rejected under Order VII Rule 11 of CPC.
5. The first respondent has resisted this application contending inter alia that the suit is for declaration that the impugned documents are null and void and these documents do not confer any right either in favour of the petitioner or the second respondent. The first respondent has properly valued the suit under Section 24 of the KCF & SV Act and has paid proper court fee as contemplated under Section 7 of the KCF & SV Act.
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6. The Civil Court by the impugned order has rejected the petitioner's application concluding that the petitioner has failed to justify the suit is not properly valued and the court fee paid is insufficient. The Civil Court, while concluding that the suit is properly valued under Section 24(d) of the KCF & SV Act, has observed that it is undisputed that the first respondent has not executed the impugned sale deed in favour of the petitioner and the sale deed is executed by the second respondent as the Power of Attorney of the first respondent.
7. The learned counsel for the petitioner argues that the first respondent has impugned not only the sale deed executed by the second respondent in his favour but also the power of attorney executed by him in favour of the second respondent. The power of attorney executed by the first respondent in favour of the second respondent has culminated in the impugned sale deed in favour of the petitioner. The Civil Court's finding that the 6 first respondent is not an executant of the impugned Sale Deed and therefore the valuation of the suit under Section 24(d) of the KCF & SV Act is proper is wholly erroneous. The challenge to the power of attorney executed by the first respondent in favour of the second respondent is the bedrock for the challenge to the sale deed executed by the second respondent in his favour. If this circumstance is considered, the first respondent cannot contend that he is not an executant and therefore he can maintain a suit for declaration instead of a suit for cancellation of the Sale deed.
8. The learned counsel for the petitioner next contends that because the challenge is not just to the sale deed but also to the power of attorney executed by the first respondent, it would tantamount seeking cancellation of the power of attorney as well as the sale deed and therefore the suit should be valued under Section 38 of the KCF & SV Act as per the consideration for which the sale deed is executed. If the suit is to be 7 valued under Section 38 of the KCF & SV Act based on the consideration for which the impugned sale deed is executed, then the first respondent cannot draw support from the provisions of Section 7 (2) of the KCF & SV Act.
9. The learned counsel for the petitioner elaborates canvassing that the Hon'ble Supreme Court in Satheedevi Vs. Prasanna and Another1 has held that the expression "value of the subject matter of the suit" as found in the provisions of Section 40 of the Kerala Court- Fees and Suits Valuation Act, 1959 (which is pari materia with Section 38 of the KCF & SV Act) should be understood as the 'value for which the document is executed'. As such, the expression 'market value' as found in Section 7(2) of the KCF & SV Act should also, wherever the provisions of Section 38 thereof apply, should be read as "value for which the document is executed" as interpreted by the Hon'ble Supreme Court in the context of Kerala Court-Fees and Suits Valuation Act. 1 2010 AIR SCW 3754 8 It is indisputable that the impugned power of attorney is followed by the impugned sale deed for a total value of Rs.10,65,000/- and therefore, the first respondent had to value the suit based on this consideration and paid proper court fee.
10. The learned counsel for the first respondent submits that the plaint is for declaration that the document of a Power of Attorney and the subsequent sale deed are null and void and do not confer any right either in the petitioner or the second respondent. The Hon'ble Supreme Court, in a case where the impugned document is not executed by the plaintiff, has declared that the proper relief would be to seek declaration and not cancellation. If the declaration is the proper relief to be claimed, then the expression 'market value' as contemplated under Section 24 of the KCF & SV Act will come into play and therefore, reliance on Section 7 (2) of the KCF & SV Act, which also refers to 'market value', would be justified. As such, the petitioner's premise for 9 requesting rejection of the plaint is erroneous and the impugned order does not call for any interference.
11. The entire controversy as regards the valuation of the suit and the payment of proper court fee will have to be examined from the perspective of the nature of the subject property which is in lis between the petitioner and the respondents. The lis between the petitioner and the respondents is over a land measuring 4 acres 11 guntas in R.S.No.196/1/4 of Navage village, Belagavi Taluk and District (subject property), admittedly a piece of agricultural land.
12. The provisions of Section 7 of the KCF & SV Act stipulate that where the fee payable under this Act depends on the 'market value' of any property, such value shall be determined as on the date of presentation of the suit; and insofar as the land which forms part of the estate paying permanently settled annual revenue to the Government, the market value of the land for the different 10 suits mentioned therein shall be twenty-five times the revenue payable. This different mode of determining the market value insofar as the agricultural land under Section 7 of the KCF & SV Act is applicable not only to the reliefs that will have to be valued under Section 24 and other provisions of the KCF & SV Act but also under Section 38 of the KCF & SV Act. The relevant provisions of Section 7 of the KCF & SV Act read as follows:
7. Determination of market value.- (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of land in suits falling under sections 24(a), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be,--
(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Deputy Commissioner's register as separately assessed with such revenue, and such revenue is permanently settled-- twenty-five times the revenue so payable:
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(b) ...............
(c) ...............
(d) ................
13. The learned counsel for the petitioner argues that as the suit is for cancellation of the Power of Attorney and Sale Deed, the valuation of the suit should be under Section 38 of the KCF & SV Act and independent of the provisions of Section 7(2) thereof because of the decision of the Hon'ble Supreme Court in Satheedevi Vs. Prasanna and Another supra. The pith of the learned counsel's submission is that the expression 'Market Value' in Section 7 of the KCF & SV Act in cases falling under Section 38 thereof will have to be the value for which the impugned document is executed.
14. The Hon'ble Supreme Court Satheedevi Vs. Prasanna and Another supra, while examining the merits of the direction by the civil Court calling upon the plaintiff therein to pay court fee on the market value of subject property therein - a rubber plantation land - and 12 which direction was also affirmed by the Kerala High Court, after considering the decisions by different High Courts on the significance of the expression "value of subject matter of the suit" as found in similar enactments applicable to the respective states, has declared that such valuation would be the 'value for which the document is executed'. However, the case on hand before this Court could be distinguished insofar as the applicability of the enunciation by the Hon'ble Supreme Court in the aforesaid decision inasmuch as the significance of a separate mode for valuation in cases of lands which are assessed to annual revenue as provided under Section 7 of the KCF & SV Act was not a subject matter for decision by the Hon'ble Supreme Court.
15. The subject matter in this case is admittedly an agricultural land. The provisions of Section 7(2) of the KCF & SV Act provide for a separate mode for valuation for different suits insofar as agricultural lands which are assessed for annual revenue. This modes applies to even 13 a suit for cancellation as is obvious from the provisions of Section 7 (2) of the KCF & SV Act of sale deed; and the interpretation the expression market value as found in Section 7 of the KCF & SV Act should be read as the valuation for which a document is executed will amount to rendering the provisions of Section 7(2) of the KCF & SV Act, and therefore the entire scheme thereunder, otiose. This would be against the settled canon that an interpretation which renders a statutory provision otiose should be avoided while interpreting a provision of the statute.
16. Therefore, whether the suit is to be valued under Section 24 (d) or under Section 38 of the KCF & SV Act, the valuation of the suit by the first respondent- plaintiff with aid of Section 7 of the KCF & SV Act cannot be found fault with. The valuation in either situation would only be twenty-five times the revenue assessed. If the petitioner fails in showing that the valuation of the suit is incorrect and court fee paid is improper, recourse 14 cannot be had to the provisions of Order VII Rule 11 of CPC to reject the plaint. It is only after it is found that the suit is not properly valued, the court fee paid is insufficient and the plaintiff fails to correct the valuation and pay proper court fee within the time fixed by the Court, plaint could be rejected under Order VII Rule 11 of CPC.
For the foregoing, this Court is of the considered opinion that the impugned order does not suffer from any jurisdictional error or irregularity. As such, the petition is dismissed.
Sd/-
JUDGE Sh/Kms