Madhya Pradesh High Court
Omkar Prasad Saxena Thr. Next Friend ... vs Ravi Meena on 18 September, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
The High Court of Madhya Pradesh
MP 2657 of 2018
Omkar Prasad Saxena vs. Ravi Meena and Others
Gwalior, dtd. 18/09/2019
Shri Nitin Agrawal, Counsel for petitioner.
Shri Pawan Singh Raghuvanshi, Counsel for respondents No. 1 to 3.
This petition under Article 227 of the Constitution of India has been filed against the order dated 19/04/2018 (Annexure P/1) passed by the First Civil Judge, Class-I, Vidisha in RCS No.48-A of 2017, by which the petitioner has been directed to pay the ad valorem Court fee.
Challenging the order passed by the Court below, it is submitted by the Counsel for the petitioner that the petitioner has filed a suit through his next friend for declaration that the sale deed executed by the petitioner is null and void as the sale deed was executed by taking advantage of the mental illness of the petitioner.
The respondents filed an application under Order 7 Rule 11 of CPC claiming inter alia that since the petitioner is the executant of the sale deed, therefore, he wants to avoid the same and thus, he must pay the ad valorem Court fee.
The petitioner filed his written reply to the said application and pleaded that the application filed by the respondents is illegal and misconceived. If the respondents want to raise any objection with regard to payment of Court fee, then they must raise the same in the written statement and the question of Court fee can be decided only after the issue is framed. 2 The application filed by the respondents is out of the purview of Order 7 Rule 11 of CPC and thus, it is liable to be rejected.
The Trial Court by order dated 19/04/2018 has allowed the application filed under Order 7 Rule 11 of CPC and has directed the petitioner to pay the ad valorem Court fee within the stipulated period, failing which the plaint shall be returned back under Order 7 Rule 11 of CPC.
Challenging the order passed by the Court below, it is submitted by the Counsel for the petitioner that since the sale deed was executed by taking advantage of the mental illness of the petitioner, therefore, the same is void and the suit simplicitor for declaration is maintainable and the plaintiff is not liable to pay the ad valorem Court fee. The Counsel for the petitioner has relied upon the judgment passed by the Madras High Court in the case R. D. Somasundaram Pillai, through his next friend R. Bhuvaneswar vs. S. Janaki Ammal and Others passed in CRP No. 1111 of 1950.
Per contra, it is submitted by the Counsel for the respondents No. 1 to 3 that the petitioner has not filed any document to show that on the date of execution of sale deed, the petitioner was of unsound mind. Merely because the petitioner is being treated during the intermediate period for his mental illness would not mean that he cannot execute the sale deed.
Heard the learned Counsel for the parties.
The petitioner has filed a suit for declaration of sale deed dated 11/07/2013 as null and void. It is not the case of the petitioner that on the said date, he was of unsound mind. Merely because, the petitioner is being 3 treated for his mental illness during the intermediate period would not be sufficient to raise a presumption that the sale deed dated 11/07/2013 was got executed by taking advantage of mental illness of the petitioner. The petitioner is, undisputedly, the executant of the sale deed.
The Supreme Court in the case of Suhrid Singh alias Sardool Singh vs. Randhir Singh and Others, reported in (2010) 12 SCC 112 has held as under:-
''7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non- executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act. '' Thus, where the executant of the sale deed wants to avoid the sale deed, then he has to pay the ad valorem Court fee. Accordingly, this Court is of the considered opinion that the Trial Court did not commit any mistake in 4 allowing the application filed by the respondents under Order 7 Rule 11 of CPC and thereby directing the petitioner to pay the ad valorem Court fee, otherwise the plaint shall be returned back under Order 7 Rule 11 of CPC.
Accordingly, this petition fails and is hereby dismissed.
The interim order dated 21/06/2018 granted by this Court, is hereby vacated. As the suit had remained stayed for a period of more than a year, therefore, the petitioner is directed to deposit deficit Court fee within a period of one month from today, failing which the Trial Court shall be free to proceed further in accordance with the provisions of Order 7 Rule 11 of CPC.
(G. S. Ahluwalia) Judge MKB MAHENDRA Digitally signed by MAHENDRA KUMAR BARIK DN: c=IN, o=HIGH COURT OF M.P. BENCH GWALIOR, ou=P.S., KUMAR postalCode=474011, st=Madhya Pradesh, 2.5.4.20=f592da990684fe30f8e1e29a4a BARIK 1a9e3451ee450d883083a8e4cc8020ee e6f7cb, cn=MAHENDRA KUMAR BARIK Date: 2019.09.21 17:04:48 +05'30'