Madhya Pradesh High Court
Dharmraj vs Smt. Anita on 17 September, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
1 MP-3740-2019
The High Court Of Madhya Pradesh
MP-3740-2019
(DHARMRAJ Vs SMT. ANITA)
3
Indore, Dated : 17-09-2019
Shri Sushil Kumar Sharma, learned counsel for the Petitioner. Heard.
The petitioner plaintiff has filed the present petition being aggrieved by order dated 11.07.2019, passed by the IInd Civil Judge, Class I, Ujjain by which he has been directed to value the suit as per the relief claimed in the suit and pay the remaining amount of the court fees.
The plaintiff filed a suit for specific performance of contract, declaration of sale deed as void permanent injunction and possession. According to the plaintiff, he entered into agreement to sale with defendant No.1 for sale and purchase of House at MIG 140, Indira Nagar, Ujjain in Rs.5.00 lakhs. He was handed over the possession in the year 2008 itself. The agreement was notarized by the notary on 23.1.2008. Thereafter, the defendant No.1 did not execute the sale deed in favour of the plaintiff, but sold the aforesaid property to defendant No.2 vide registered sale deed in 2015 in Rs.28.00 lakhs. After appearance in the suit defendants have raised an objection that the plaintiff has under valued the suit and has not paid the advalorem court fee, since he is seeking relief of declaration of the sale deed as void in which the market value of the property is Rs.28.00 lakhs therefore, he is required to value the suit as Rs.28.00 lakhs and liable to pay the advalorem court fees.
The plaintiff opposed the said application and the learned court vide order dated 11.07.2009, has upheld the objection and directed the plaintiff to value the suit and pay the adequate amount of court fees. Hence, the present petition before this court.
Learned counsel for the petitioner submits that the plaintiff was given the possession at the time of execution of the agreement to sale hence, he has Digitally signed by Shailesh Sukhdev Date: 18/09/2019 12:27:56 2 MP-3740-2019 rightly valued the suit on the basis of the value of the property mentioned in the agreement to sale. Since he is not party in the subsequent sale deed therefore, he is not required to value the suit as per the value of the property in the sale deed and pay the advalorem court fees. The law in respect of a valuation of the suit and payment of sale deed is well settled. The Apex court in the case of Suhrid Singh @ Sardool Singh @ Sardool, reported in (2010) 12 SCC 112) has 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, 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 Digitally signed by Shailesh Sukhdev Date: 18/09/2019 12:27:56
3 MP-3740-2019 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 aforesaid judgment delivered by the Apex court, the plaintiff is not only seeking relief of specific performance of contract, but also seeking declaration that a sale deed executed by the defendants No.1 and 2 be declared void. It is correct that the plaintiff is not a party in the subsequent sale deed and he is seeking declaration that the sale deed be declared void, but he is also seeking the possession of the suit property from the defendant No.2, therefore, he is liable to pay the advalorem court fees. The court below has not committed any error while dismissing the suit.
The petition is, accordingly, dismissed.
(VIVEK RUSIA) JUDGE SS/-
Digitally signed by Shailesh Sukhdev Date: 18/09/2019 12:27:564 MP-3740-2019 Digitally signed by Shailesh Sukhdev Date: 18/09/2019 12:27:56