Calcutta High Court (Appellete Side)
Snandy vs (Revision Fails) on 27 April, 2015
Author: Harish Tandon
Bench: Harish Tandon
1 27.04.2015 CO 1286 of 2015 Court No. 02 Item No. SL-56 Uttiya Santra snandy Vs. (revision fails) Nimai Chandra Manna & Anr.
Mr. Nilanjan Bhattacharya, Advocate Ms. Debarati Bhattacharya, Advocate ......for the Petitioner This revisional application is directed against the order no. 13 dated April 2, 2015 passed by the learned Civil Judge (Junior Division), Amta, Howrah in Title Suit No. 95 of 2014 by which an application under Section 151 of the code is rejected.
The petitioner being the defendant no. 1 in the said suit took out an application under Section 151 of the Code of Civil Procedure for a direction upon the plaintiff/opposite party to amend the plaint and pay the ad velorem Court Fees on the basis of the valuations indicated in the impugned deeds.
According to the learned Advocate for the petitioner since the relief claimed in the plaint relates to the cancellation of the impugned deeds, the ad velorem Court Fees on the basis of the consideration money shown in the respective deeds are required to be paid.
In support of the same, reliance is placed upon the judgment of a Coordinate Bench rendered in the case of Sova Rani Dutta Vs. Ashis Kumar Dutta reported in 2014 (1) ICC 2
257. The Coordinate Bench noticed the other Coordinate Bench decision rendered in the case of Paresh Chandra Nath Vs. Naresh Chandra Nath reported in 2006 (1) CHN 526 and distinguished the said judgment on factual aspects. It would be relevant to quote paragraph 15 of the judgment in Sova Rani Dutta (supra) which runs as follows:-
"Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the decisions referred to, in my view, the decisions of Paresh Chandra Nath (supra) will not be applicable because the relief sought for in the instant suit is not for declaration simplicitor and consequential relief but in effect a decree for cancellation of the deed and other relief. So, the case of Paresh Chandra Nath (supra) is quite distinguishable from the present case and as such, I am of the view that this decision will not be applicable."
In case of Paresh Chandra Nath (supra), the Coordinate Bench was considering a matter where the main relief claimed in the plaint relates to a declaration of the deed being fraudulent one and null and void with consequential relief of cancellation of the same.
It is a settled law that the Coordinate Bench is bound by the decision of another Coordinate Bench and if it decided to take a contrary view, has to refer the matter to a larger Bench in order to maintain the judicial discipline.
Initially this Court thought that there are conflicting 3 judgments operating in the field but after noticing the observations made in paragraph 15 of the judgment rendered in case of Sova Rani Dutta (supra), this Court finds that the later Coordinate Bench was considering the matter where the main relief was claimed in the form of cancellation of the deeds with other relief.
In the present case the first relief claimed in the plaint relates to a declaration of the deeds of gift as void, inoperative and illegal with consequential relief of cancellation. The present case squarely comes within the ambit of the judgment rendered by the other Coordinate Bench in case of Paresh Chandra Nath (supra) and it would be profitable to quote the excerpts therefrom.
"Being aggrieved, the defendant No. 1 has come up with this application under Article 227 of the Constitution of India.
I have perused the averments made in the plaint carefully. The substantive relief claimed in the suit property is declaration and the consequential relief flows directly from it. The consequential relief claimed in the suit cannot be claimed independently. The consequential relief claimed in the suit, that is, for setting aside of the said deed, will not lie independently unless the relief of declaration is prayed for.
The plaintiff claims that the defendant No. 1, who is his brother, has allegedly obtained a deed of gift from him fraudulently giving the plaintiff an impression that the plaintiff was executing a power-of-attorney in favour of the defendant No. 1 for protecting the boundary of the land of the plaintiff. This is a suit for declaration simplicior and the relief of setting 4 aside of the deed is consequential. From the careful reading of the plaint, it is clear that the prayer for declaration that the defendant No. 1 obtained the deed of gift by practising fraud on the plaintiff is the substance of the claim."
This Court, therefore, does not find that the Trial Court have committed any illegality and/or irregularity in rejecting he application filed by the defendant/petitioner.
The revisional application fails. No order as to costs.
(Harish Tandon, J.)