Madhya Pradesh High Court
Smt. Guddi Bai vs Dharmendra Kumar on 7 December, 2015
1 W.P.No. 7838/2015
(Smt. Guddi Bai & Ors. Vs. Dharmendra Kumar & Ors.)
07/12/2015
Shri S.K.Shrivastava, Advocate for the petitioners. This writ petition under Article 227 of the Constitution of India is directed against the order dated 15/10/2015 passed by Second Additional Judge to the Court of First Civil Judge, Class-I, Bhind in Civil Suit No. 43-A/2013. Defendants' applications under Section 11 of CPC has been disposed of and under Order VII Rule 11 CPC, has been rejected.
By way of former application, it was contended that between the same parties, similar controversy has been decided by the Court of Second Civil Judge, Class-II, Bhind in case No. 38-A/2009 decided on 29/7/2011, as such same has become final. Therefore, the instant suit is hit by principles of res judicata.
Trial Court after recording the submissions advanced by parties, ruled that as the issue in that behalf has already been framed, the same shall be addressed, on evidence to be led by the parties. Accordingly, disposed of the application.
The latter application under Order VII Rule 11 CPC was filed seeking dismissal of suit as not maintainable on the premise that the suit is arbitrarily valued and insufficient stamp duty has been paid. Besides, no cause of action has arisen. Plaintiff has sought the relief of declaration of title and that the sale deed dated 9/11/2004 is null and void. Plaintiff being the party to the sale deed, therefore, was required to value the suit 2 W.P.No. 7838/2015 (Smt. Guddi Bai & Ors. Vs. Dharmendra Kumar & Ors.) on the basis of consideration shown in the sale deed, accordingly required to affix ad valorem court fees for the nature of relief claimed.
In the plaint, it is contended that the plaintiff's date of birth is 2/8/1987, hence, was minor at the relevant point of time and was given to understand by defendant no.3-Patwari that unless in the documents he is shown major by deleting his status as minor, he will not be able to fetch loan from Regional Rural Bank for the purpose of installation of tube-well in the field for agricultural purposes. Thereafter, taking advantage of ignorance of the plaintiff, defendant no.3 in collusion with his nephew, defendant no.2, and son-in-law of the Sarpanch, Gram Panchayat Lahar, defendant no.1, took the plaintiff to Bhind on 9/11/2004 and got his signatures on the documents presented by defendant no.3. Plaintiff was given to understand that now his documents are complete and his status as minor since has been deleted, therefore, he can obtain loan from the bank for installation of tube-well. It was only on 8/11/2008 when the plaintiff started excavation for installation of tube-well went at his field, he was restrained by defendants no.1 and 2 under the pretext that he has already executed a sale deed in favour of defendants no.1 and 2 dated 9/11/2004 and ceased to be owner. Thereafter, he applied for obtaining certified copy of the alleged sale deed, the same was denied to him by the office of Registrar, Stamp, under the pretext that the same has 3 W.P.No. 7838/2015 (Smt. Guddi Bai & Ors. Vs. Dharmendra Kumar & Ors.) been impounded and the matter is pending before the authority. Thereafter, defendants no.1 and 2 asserted that as the suit land has already been mutated in the name of defendants no.1 and 2 on 24/4/2010 and threatened for forcible dispossession. Under such circumstances, the instant suit was filed for declaration of title and that the sale deed dated 9/11/2004 as null and void.
Upon perusal of the aforesaid plaint averments, the trial court applying the principle that only plaint averments are required to be seen while dealing with the application under Order VII Rule 11 CPC; a settled law, has found that the relief claimed for declaration of sale deed dated 9/11/2004 as null and void is on the premise that plaintiff was minor and agreement with minor is not enforceable by law, as such is void, as defined under Section 2 (g) of the Indian Contract Act, as minor cannot be held to be competent to enter into an agreement under Section 11 of the Contract Act. Therefore, the trial court opined that the suit cannot be held to be not maintainable for the reason that petitioner being a party to the sale deed and since relief sought is for declaration that the sale deed is null and void, unless ad valorem court fees is not paid. Accordingly, the trial court rejected the application. Besides, upon consideration of pleadings in the plaint, trial court found that the cause of action is well explicit therefrom, hence, it is incorrect to say that no cause of action had arisen to plaintiff to 4 W.P.No. 7838/2015 (Smt. Guddi Bai & Ors. Vs. Dharmendra Kumar & Ors.) file the suit. Accordingly, the application was rejected.
Criticizing the aforesaid order of the trial court, learned counsel contends that the law is well settled to the effect that if declaration that the sale deed is null and void is sought by a person party to the sale deed, ad valorem court fees is required to be affixed on the value of the sale deed and that having not been done, the trial court has committed a grave error of law and fact while rejecting the application. In support thereof, learned counsel cited the judgment of this Court in the case of Kamar Singh Rawat vs. Makhan Singh Rawat and Ors., WP No.7277/2013 decided on 30/10/2015 and the judgment of the Supreme Court in Vishwanath Bapurao Sabale vs. Shalinibai Nagappa Sabale and Others, (2009) 12 SCC 101 and Suhrid Singh alias Sardool Singh vs. Randhir Singh and others, (2010) 12 SCC 112.
Heard the counsel for the petitioner and perused the order impugned.
The general principle of law as regards valuation of the suit and affixation of stamp duty is well known as held by the Supreme Court in the case of Sathappa Chettiar vs. Ramanathan Chettiar, AIR 1958 SC 245 that while addressing on the aforesaid issue the Court is required to look into the allegations made in the plaint and not to be influenced by the pleadings in the written statement. Besides, for the purpose of determination whether fixed court fees or ad valorem court fees 5 W.P.No. 7838/2015 (Smt. Guddi Bai & Ors. Vs. Dharmendra Kumar & Ors.) is required to be paid, law is also well settled that the Court is required to see whether the instrument sought to be voided is voidable or void bearing in mind the averments made in the plaint. If the instrument sought to be voided is claimed to be void and the plaintiff is a party thereto, ad valorem court fees is required to be paid in the suit and likewise, if the instrument is sought to be annulled with the declaration that the deed is invalid, or non est, or illegal or that it is not binding on him and the plaintiff is not a party thereof, that instrument is voidable at the instance of the plaintiff , fix Court fes is required to be paid.
However, aforesaid principle of law cannot be made applicable to the factual matrix in hand while dealing with the application under Order VII Rule 11 CPC as allegations made in the plaint are that petitioner/plaintiff was minor at the relevant point of time and on misrepresentation, his name was mentioned in the sale deed playing fraud upon him by defendant No. 1 in collusion with defendants No. 2 and 3 as detailed in preceding paragraphs, therefore, having regard to Sections 2,10 and 11 of the Contract Act, which make it essential that the contracting parties should be competent to contract and the contract with minors is void. Mohoribibee Vs. Dharmodas Ghose, (1903) ILR 30 CL 539 (PC) referred to.
Therefore, in the opinion of this Court, the trial court has not committed any error of law or jurisdictional error while rejecting the application under Order VII Rule 11 CPC. As 6 W.P.No. 7838/2015 (Smt. Guddi Bai & Ors. Vs. Dharmendra Kumar & Ors.) such, no interference is warranted under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed. However, it is considered apposite to observe that the aforesaid observations are only in the context of the order impugned rejecting the application under Order VII Rule 11 CPC and the trial court shall not be influenced by any of the observations made therein while dealing with the suit on merits with due advertence to the pleadings of the parties and evidence brought on record.
(Rohit Arya) Judge jps/- Arun*