Madhya Pradesh High Court
Ajay Chand vs Ram Singh on 21 September, 2015
WP.7067/2012 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 7067/2012
Ajay Chand
Vs.
Ram Singh and Ors.
------------------------------------------------------------------------------
Shri Ankur Maheshwari, Advocate for the petitioner.
Ms. Reena Sharma, Advocate for the respondents.
------------------------------------------------------------------------------
ORDER
( 21 / 09 /2015 ) In this petition filed under Article 227 of the Constitution the petitioner / defendant has challenged the order dated 29.08.2012 whereby his application preferred under Order 7 Rule 11 C.P.C was rejected by the court below.
2. The respondents No. 1, 2 & 3 / plaintiffs filed a suit for declaration and permanent injunction. In the prayer clause of the suit, it is prayed that sale deed being a fabricated, frivolous and manufactured document, be declared as inoperative. The petitioner / defendant filed an application under Order 7 Rule 11 C.P.C. It is prayed in the said application that the plaintiffs are required to pay ad valorem court fees in view of said prayer. Shri Ankur Maheshwari, Advocate learned counsel for the petitioner relied on 2011 (2) MPHT 488 (DB) ( Ambika Prasad and Ors. Vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi and Anr.).
3. Ms. Reena Sharma, supported the order of court below and placed reliance on 2009 (4) MPLJ 182 ( Manzoor Ahmed Vs. Jaggi Bai and Ors.), 2010 (4) MPLJ 431 (Sunil Radhelia Vs. Awadh Narayan and Ors.), 2013 (II) MPWN 113 (Ram Prasad Kumbhkar Vs. Geeta Bai Kumbhkar), WP.7067/2012 2
4. No other point is pressed by the learned counsel for the parties.
5. I have heard the parties and perused the record.
6. No doubt, this court in Manzoor Ahmed (supra) opined that whether a document is "void" or "voidable" depends upon the averments made in each case and requirement to pay ad valorem court fees depends on such averments. This judgment of Manzoor Ahmed was considered by Full Bench in Sunil Radhelia Vs. Awadh Narayan (supra). In this case, the Full Bench opined that when plaintiff makes allegation that instrument is void and hence not binding on him and a declaration simplicitor is prayed for, he is not required to pay ad valorem court fees. He may pay fixed Court fee under Article 17, Schedule (II) of the Court fees Act. However, it is seen that this judgment of Full Bench was considered by Division Bench in Ambika Prasad (supra). The Division Bench considered the judgment of Supreme Court holding the field i.e. AIR 2010 SCW 3308 (Suhrid Singh Vs. Randhir Singh). After taking into account the example / illustrations given by Supreme Court in Suhrid Singh, this Court opined that if this Supreme Court judgment would have been brought to the notice of Full Bench in Sunil Radhelia (supra) the Full Bench would have taken the same view which is being taken in Ambika Prasad (supra). Another Single Bench of this Court considered the judgments of Manzoor Ahmed, Ambika Prasad, Sunil Radhelia and other relevant judgments on the point in Ramsiya (supra). In the said case, the plaintiff had averred in the plaint that she was never told about the sale deed which has been obtained by playing fraud and misrepresentation by defendant No.1. She never executed the sale deed. This Court after considering the previous judgments, aforesaid, directed to pay ad valorem court fees on the valuation of the sale WP.7067/2012 3 deed. I am bound by this judgment. In the present case also the stand of the plaintiff is that his signature / thumb impression are not there in the sale deed. In my view, this aspect cannot be gone into at this stage when evidence is yet to be recorded. If ultimately plaintiff is able to establish that his signature / thumb impression are not there in the relevant sale deed, he may prefer an application for return of ad valorem court fees. It will be open for the court below to consider that application and decide it in accordance with law at appropriate stage.
7. I will be failing in my duty if I would not consider the judgment cited by Ms. Reena Sharma i.e. Ram Prasad (supra). In the said case, the plaintiff was not a party to the sale deed. Thus, factual foundation of the said case was totally different. Hence, said judgment has no application in the factual matrix of the present case.
8. As analyzed above, court below has erred in rejecting the application under Order 7 Rule 11 C.P.C. The plaintiff is required to pay ad valorem court fees. The trial court shall grant reasonable time to the plaintiff to pay deficit court fees before proceeding further on merits. Impugned order dated 29.08.2012 is set aside.
9. Petition is allowed to the extent indicated above. No order as to costs.
(Sujoy Paul)
naveen Judge