Madhya Pradesh High Court
Hafiz Akhtar Khan vs Smt. Saeeda Bee on 10 November, 2017
1
FA-394-2015
First Appeal No.394/2015
Jabalpur, Dated: 10.11.2017
Shri Sankalp Kochar, learned counsel for appellant.
Shri Dhruv Verma, learned counsel for the respondents
No.1 and 3.
Heard on I.A. No.4707/2016 and I.A. No.879/2017 filed by the respondents No.1 and 3 seeking dismissal of appeal due to non-payment of adequate Court fees.
Vide order dated 13.10.2015, the appeal has been admitted for final hearing with a permission to respondents to raise objection regarding insufficient payment of Court fees. Accordingly, respondents No.1 and 3 have filed said applications.
Respondent No.1 being a plaintiff filed a suit against present appellants and respondents No.2 and 3 for partition and possession. The plaintiff has valued the suit at Rs.30 Lakhs as per her 1/6th share in the suit property. Since the plaintiff was not in a position to pay the Court fees, therefore, she sought permission to sue as an indigent person. The permission was granted and she was exempted to pay the Court fee.
Vide judgment and decree dated 20.1.2015, the trial Court decreed the suit in which the plaintiff has been held entitled to get possession of 1/6th share in the suit property. Being aggrieved by said judgment and decree, defendants No.1 and 4 filed present appeal and valued the same Rs.30 Lakhs for the relief of declaration of title and Rs.10,000/- for partition and 2 FA-394-2015 possession and paid the Court fees as calculated by the Section Officer of this Court.
The respondents No.1 and 3 have filed I.A. No.4707/2016, an application for dismissal of appeal due to non-payment of adequate Court fees. According to them, the checker of the Registry has made erroneous calculation of the Court fee. As per Collector guidelines, valuation of the first property is about Rs.25 Lakhs and second property is also Rs.25 Lakhs on which Court fee @ Rs.1.5 Lakhs ought to have been paid by the appellants. Since adequate Court fee has not been paid, therefore, the appeal is liable to be dismissed.
The appellants have filed reply to the aforesaid two applications by submitting that they are in possession over the suit property and therefore, they have paid proper Court fee as per Section 7(iv)(c) of the Court Fees Act, 1970. Hence, they are not liable to pay ad valorem Court fee and the applications are liable to be rejected.
It is not disputed that the appellants have paid the Court fee as per calculation made by the office of this Court. The appellants are in possession over the suit property. The plaintiff was liable to pay ad valorem Court fee as she was claiming possession. The appellants have filed this appeal for setting aside judgment and decree dated 20.11.2015 for which share of the plaintiff has been ascertained and declared.
Scope of Section 7(iv)(c) of the Court Fees Act, 1980 has 3 FA-394-2015 been considered by the Apex Court in Suhrid Singh vs Randhir Singh (2010) 12 SCC 112 wherein it has been held that where the executant of the deed wants to annul the sale deed, he has to seek cancellation of the deed, but if the non- executant seeks annulment of a deed, he has to seek declaration that the deed is invalid, nonest or illegal. When he is seeking the relief of declaration only, he is required to pay the court fees under Article 17(iii) of the Court Fees Act, but if he is claiming possession also as a consequential relief, he has to pay the ad valorem court fees as provided under Section 7(iv)(c) of the Court Fees Act.
Relevant para of the aforesaid judgment is reproduced below:
"6. 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, 4 FA-394-2015 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. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.
8. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments."
In view of the above pronouncement of law, the appellants are not liable to pay the ad valorem Court fee. In the application (I.A. No.4707/2016), the respondents No.1 and 3 has not 5 FA-394-2015 mentioned provisions of Code of Civil Procedure, 1908 under which they are seeking dismissal of appeal. The appeal has been admitted for final hearing and the same is liable to be decided on merits.
Even otherwise, at the time of the decision of the appeal, if it appears that ad-valorem court fee is liable to be paid by the appellants, the Court may direct them to pay the same accordingly.
With these observations, I.A. No.4707/2016 and I.A. No.879/2017 are rejected.
Record of the Court below be called for.
The Appeal be listed for final hearing in due course.
(Vivek Rusia)
vinod JUDGE
Digitally signed by VINOD VISHWAKARMA
DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=dbbaac2eb30630f36de246fe4b5329ecb076d859ddaf8 18f6a3b6c562d84e0dc, cn=VINOD VISHWAKARMA Date: 2017.11.14 10:17:58 +05'30'