Anil Kumar Ghosh And Others vs Swami Shashwatanand And Others on 8 December, 2017

[Cites 3, Cited by 1]

Uttarakhand High Court

Anil Kumar Ghosh And Others vs Swami Shashwatanand And Others on 8 December, 2017

Bench: Lok Pal Singh

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

             Appeal from Order No.642 of 2017

Anil Kumar Ghosh & Ors.                         .....Appellants

                              Versus

Swami Shashwatanand & Ors.                    ....Respondents


Mr. Nikhil Singhal, Advocate for the appellants
Mr. Anuj Kumar Sharma and Mr. Shantanu Bhardwaj, Advocates for the
respondent no.1


Hon'ble Lok Pal Singh, J.

Mr. Nikhil Singh, Advocate for the appellants. Mr. Anuj Kumar Sharma and Mr. Shantanu Bhardwaj, Advocates for respondent no.1.

Respondent nos.2 to 6 are proforma respondents, therefore, there is no requirement to issue notices to them.

Learned counsel for both the parties have stated that the present appeal may be disposed of at the admission stage today itself.

Heard.

This appeal, under Section 6-A of the Court Fees Act, has been preferred against the order dated 14.11.2017 passed by Civil Judge (S.D.), Haridwar, in O.S. No.52 of 2012, whereby the application paper no.112-c filed by the plaintiff has been dismissed and issue no.3 in respect of valuation of the suit and deficiency of court fees has been decided against the plaintiff.

Facts, necessary for adjudication of the case are that, plaintiffs/appellants filed a suit for declaration and prohibitory injunction against the 2 defendants/respondents. Subsequently, the suit got amended for declaration of the sale deed dated 28.02.2012, as null and void. The valuation of the suit property, as mentioned in the sale deed, is `1,08,23,671/-. Suit was filed on 26.03.2012, after 26 days of execution of sale deed in favour of respondent no.1. The defendants contested the suit and filed their written statement and took a plea that the suit is undervalued and the court fees paid is insufficient. As such, the learned trial court framed issue no.3 in regard to valuation and insufficiency of court fees and invited Ameen report to ascertain the market value of the suit property. It is surprising that the sale deed was executed in favour of the defendants on 28.02.2013 for an amount of ` 1,08,23,671/- and the suit was filed on 26.03.2012, thus, there was no occasion of increasing the market value of the suit property within a period of 26 days. As such, it was not appropriate on the part of the trial court to call Ameen report for ascertaining the market value of the suit property.

At this juncture, sub-clause (iv-A) of Section 7 of Court Fees Act, 1870, would be relevant to mention, which reads as under:

"For cancellation or adjudging void instruments and decrees.-(iv-A) In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value :

(1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter, and (2) where he or his predecessor-in-

title was not a party to the decree or instrument, according to one-

fifth of the value of the subject-

matter, and such value shall be deemed to be-

if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates.

Explanation.- 'The value of the property' for the purposes of this sub-section, shall be the market-value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) or (v-B), as the case may be."

This Court further finds that since the suit was filed for a decree of declaration and consequential relief, thus, in view of sub-section (iv-A) of Section 7 of the Court Fees Act, suit is to be valued as per the value mentioned in the instrument. The value of the 4 suit property was mentioned in the instrument therefore there was no option available for the trial court to go beyond the provisions of Section 7 sub- section (iv-A) of the Act. Learned trial court after relying upon the Ameen report has directed the plaintiffs to value the suit @ ` 2,84,24,295/-. Since the value of the property has been mentioned in the instrument/sale deed, and the instrument/sale deed has been put to challenge by seeking decree of declaration, therefore, the learned trial court has committed illegality in directing the plaintiffs to value the suit on the amount of ` 2,84,44,295/-. The proper course for the trial court was to direct the plaintiffs to value the suit at the amount mentioned in the instrument i.e. sale deed dated 28.02.2012. In such view of the matter, the impugned order is unsustainable and the appeal deserves to be allowed.

Accordingly, appeal is allowed. Impugned order dated 14.11.2017 is set aside. Plaintiffs are directed to value the suit on the amount of `1,08,23,671/- as mentioned in the sale deed dated 28.02.2012 and to move an appropriate application before the trial court to get the suit amended.

In the facts and circumstances, parties shall bear their own costs.

(Lok Pal Singh, J.) 08.12.2017 Rajni

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