Madhya Pradesh High Court
Babloo (Minor) vs Smt. Krishna Bai on 20 August, 2015
FA-847-2008
(BABLOO (MINOR) Vs SMT. KRISHNA BAI)
20-08-2015
1. The appellants have filed this appeal against the order dated
15.11.2008 passed in Civil Suit No.61-A/2008 by which, the suit filed by
the appellants has been dismissed in exercise of power under Order 7
Rule 11 of CPC.
2. The appellants-plaintiffs filed a suit for declaration and permanent
injunction. They valued the suit of Rs.5,600/- and paid the Court fees of
Rs.560-/-. The appellants-plaintiffs pleaded that they purchased the suit
land by registered sale deed dated 01.06.1999. The defendants No.1, 2
and 3 filed the suit before the Additional District Judge against the
plaintiffs and other defendants which was registered as Civil Suit No.24-
A/2003. At that time, the appellants-plaintiffs were minor. No summons
were served on the plaintiffs and they were proceeded exparte and
thereafter vide judgment and decree dated 29.01.2005, a declaration
was issued by the Court in favour of the respondents No.1, 2 and 3 and
against the plaintiffs that the sale deed in regard to half of the land mentioned in the sale deed dated 01.06.1999, is null and void. The plaintiffs got the information about the judgment when they received notice from Tahsildar of mutation. The plaintiffs further pleaded that in the aforesaid suit, father of the plaintiffs was not made Guardian and another person Nandlal was shown as Guardian of the plaintiffs. The Court did not appoint Mr. Nandlal as guardian. The plaintiffs prayed a relief that the decree be granted in their favour declaring the judgment and decree passed in Civil Suit No.24-A/2003 as illegal and void and further declaration be granted in favour of the plaintiffs that they are the owners of the land purchased by them vide registered sale deed 01.06.1999. The plaintiffs-appellants further prayed a relief of grant of permanent injunction.
3. In the aforesaid suit, the defendants filed an application under Order 7 Rule 11 of CPC. They pleaded that the plaintiffs filed the suit for declaration and they want to set aside the judgment and decree by which, the sale deed was declared as null and void. The valuation of the sale deed was of Rs.1,05,900/- hence, the plaintiffs are required to pay the Court fees of Rs.14,626/-. The plaintiffs also not valued the suit properly for the purpose of grant of permanent injunction. The trial Court vide order dated 23.09.2008 has held that the plaintiffs want a relief of declaration of a decree passed in Civil Suit No.24-A/2003, as null and void. The aforesaid suit was valued at Rs.1,05,920/- hence, the appellants-plaintiffs are required to pay ad-volerum Court fees on Rs. 1,05,920/-. The plaintiffs did not pay the requisite Court fees hence, the suit was dismissed vide impugned order dated 15.11.2008.
4. From the facts of the case, it is clear that the plaintiffs have clearly pleaded that the defendants No.1 to 3 played a fraud. The plaintiffs were exparte in the judgment and decree passed in Civil Suit No.24- A/2003. The natural guardian was not appointed although, the plaintiffs were added as respondents and admittedly, they were minor at that time. Another person Mr. Nandlal, was appointed as natural guardian of the plaintiffs. No summons were served on the plaintiffs in the aforesaid Civil Suit hence, the judgment and decree passed in Civil Suit No.24- A/2003, be declared as null and void.
5. The full Bench of this Court in the matter of Sunil s/o Dev Kumar Radhelia and others vs Awadh Narayan and others reported in 2010 (4) MPLJ 431, has held in regard to payment of Court fees in a declaratory suit where the relief of declaration has been sought by a party as under:-
â14. In view of the aforesaid discussion, there is no doubt that if plaintiff makes an allegation that the instrument is void and hence not binding upon him then ad valorem court-fee is not payable and he can claim declaration simplicitor for which court-fee under Article 17 (iii) of Schedule-II would be sufficient. The question No.1 is answered accordingly.â
6. In the present case, the plaintiffs prayed a relief of declaration on the ground that the defendants No.1 to 3 obtained a judgment and decree passed in Civil Suit No.24-A/2003 illegally by playing fraud on the Court. In my opinion, it was obligatory on the part of the Court to decide the issue that whether any fraud was played in obtaining the judgment and decree passed in Civil Suit No.24-A/2003 or not after taking evidence. Thereafter, the Court may have taken a decision in regard to payment of Court fees. The Court has simply observed that the valuation of Civil Suit No.24-A/2003 was Rs. 1,05,920/-, hence the appellants-plaintiffs have to pay ad-volerem Court fee. In my opinion, this is not the correct approach of law.
7. Consequently, the appeal filed by the appellants is allowed and the impugned orders dated 23.09.2008 and 15.11.2008, are hereby quashed. The case is remitted back to the trial Court. The trial Court shall frame the issue in regard to payment of proper Court fees and decide the same along with other issues at the time of passing the final judgment. It is further clarified that the observations made by this Court are prima facie in nature. The observations may not be construed or taken into consideration in deciding the controversy in the suit. No order as to the costs.
(S.K. GANGELE) JUDGE