Madhya Pradesh High Court
Hemant Pal vs Prasant Jain on 25 September, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
NEUTRAL CITATION NO. 2024:MPHC-GWL:17044
1 CR-523-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 25th OF SEPTEMBER, 2024
CIVIL REVISION No. 523 of 2022
HEMANT PAL
Versus
PRASANT JAIN AND OTHERS
Appearance:
SHRI N.K.GUPTA - SENIOR ADVOCATE WITH MS.RASHI
KUSHWAH - ADVOCATE FOR THE PETITIONER.
SHRI NAKUL KHEDKAR - ADVOCATE FOR RESPONDENT
NO.1.
ORDER
This revision has been preferred by the petitioner/defendant No.1 against the order dated 05.08.2022 passed by the 5t h Civil Judge, Senior Division, Gwalior in Civil Suit No.390-A/22, whereby the application filed by the petitioner under Order 7 Rule 11 of CPC has been dismissed.
2. The plaintiff filed a civil suit for declaration and permanent injunction against the petitioner and respondents No.2 & 3 in respect of the disputed property with the pleadings that the petitioner/defendant No.1. On the pretext of an agreement, got executed power of attorney from his father by playing fraud and on the basis of said power of attorney dated 14.08.2012, the defendant No.1 sold the disputed property to defendant/respondent No.2 on 13.08.2013 and later on defendant No.2 sold this property to respondent/defendant No.3 on 11.11.2021. Hence, this power Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 28-09-2024 12:56:31 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:17044 2 CR-523-2022 of attorney and the subsequent sale deeds be declared null and void and the defendants be restrained from interfering in the possession of the plaintiff over the suit property.
3. The defendant No.1/petitioner filed an application under Order 7 Rule 11 of CPC alleging that the plaintiff is claiming right, title and interest in the disputed property on the basis of the act done by his father. Hence, he is the party to the sale deed. Therefore, he has to pay ad valorem Court fees but the plaintiff has neither valued his suit property not paid adequate Court fees. The suit is also barred by limitation. Hence, prayer was made to reject the plaint.
4. The plaintiff/respondent No.1 vehemently opposed the above application. After hearing both the parties, the trial Court passed the impugned order holding the suit maintainable.
5. It is submitted by the learned counsel for the petitioner that the impugned order is contrary to facts and law. The plaintiff's father was party to the documents. Hence, he and now plaintiff has to pay ad valorem Court fees. When the document is voidable and the party to the documents wants to seek the declaration, he has to pay ad valorem Court fees. The suit should have been valued at the sale price mentioned in the sale deed dated 13.08.2013. The learned trial Court has not considered the relevant provisions of the suit valuation and Court Fees Act. Hence, prayer has been made to set aside the impugned order and to reject the plaint.
6. On the other hand, the learned counsel for the plaintiff/respondent No.1 has supported the impugned order and prayed for the dismissal of the Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 28-09-2024 12:56:31 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:17044 3 CR-523-2022 petition.
7. Heard the arguments advanced by the counsels of both the sides and perused the record.
8. It is a well settled principle of law that for deciding the application under Order 7 Rule 11 of CPC, only the plaint averments are required to be taken into consideration and the defence taken by the defendant side is not to be seen at all. Admittedly, as per the plaint pleadings, the power of attorney dated 14.08.2012 was got to be executed from the father of the plaintiff by defendant No.1/petitioner by playing fraud and the father has died on 17.09.2020. The plaintiff is claiming his right and title in the disputed property through his father and challenging the power of attorney on that basis. The fraud is alleged to have been committed by the petitioner with regard to the character and nature of the property. According to the plaintiff, he came to know for the first time about this power of attorney and the sale deeds only on 29.11.2021 and cause of action has arisen since then.
9. In the light of the pleadings contained in the plaint, the father of the plaintiff and through him the plaintiff himself may be considered as party to deed and the documents are void or voidable and when the cause of action has really accrued are complex questions of law and fact and they can be decided after framing issues. Hence, the plaint cannot be thrown at the threshold.
10. After examining the plaint pleadings, it is clear that apart from power of attorney, the plaintiff has also sought relief of declaration regarding the sale deed executed by the defendant No.1 in favour of defendant No.2 Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 28-09-2024 12:56:31 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:17044 4 CR-523-2022 and the sale deed executed in favour of defendant No.3 by the defendant No.2. It is submitted that these sale deeds are also void and not binding on him. But the suit has not been valued in respect of these sale deeds. No relief of title declaration in respect of disputed property has been prayed for by the plaintiff. Thus, the suit has been undervalued. The learned trial Court has not considered this aspect while passing the impugned order which is erroneous in this regard warranting interference by this Court.
11. Hence, looking to the facts and circumstances of the case and in considered opinion of this Court, the trial Court is directed to proceed as per the provisions of Order 7 Rule 11 (b) of the CPC.
12. Accordingly, this petition stands disposed of.
(ROOPESH CHANDRA VARSHNEY) JUDGE Adnan Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 28-09-2024 12:56:31 PM