Madhya Pradesh High Court
Shri Rawatpura Sarkar Lok Kalyan Trust vs Vishwanath Patel [Lodhi] Judgement ... on 10 February, 2014
1
W.P.No.3348/2013
Writ Petition No.3348/2013
10.02.2014
Shri Sanjay Agrawal, learned counsel for petitioner.
Ms. Manjit P.S.Chuckal, learned counsel for respondent
No.1.
Shri Sudesh Verma, learned Government Advocate for respondents No.2 & 3.
With consent, the matter is heard finally.
Order dated 06.02.2013 passed by Civil Judge Class-II Patan, Jabalpur in civil suit No.5-A/2013 is being assailed vide present petition under Article 227 of the Constitution of India; whereby, trial Court rejected the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 filed by the petitioner/defendant No.1 for dismissal of suit for want of ad valorem Court fees.
Suit by respondent No.1/plaintiff is for declaration that the sale deed dated 08.10.2008 in respect of land bearing Khasra No.144/1, Patwari Circle No.56, Revenue Circle Tehsil Shahpura, District Jabalpur to the extent of 0.170 hectare out of 0.970 hectare is null and void and the plaintiff be declared as owner thereof. The relief has been sought on the anvil that though the plaintiff executed the sale deed dated 08.10.2008 for the land admeasuring 0.800 hectare, the defendant (petitioner herein) by playing fraud by erasing 0.800 hectare, had interpolated 0.970 hectare. The plaintiff valued the suit for declaration at Rs. 300/- 2 W.P.No.3348/2013 and for permanent injunction Rs.300/- and accordingly affixed the fixed Court fees thereon. Petitioner/defendant raised an objection as to the maintainability that the suit is not properly stamped. Trial Court vide impugned order rejected the application on a finding that sale deed dated 08.10.2008 is not being questioned but only a declaration has been sought in respect of interpolation in the sale deed in place of 0.800 hectare as 0.970 hectare.
Assailing the order it is urged on behalf of the petitioner that since the plaintiff was seeking the relief for deletion of an area mentioned in the sale deed dated 08.10.2008, he is under an obligation to affix ad valorem Court fees on the entire sale consideration as the same was not divisible. It is further submitted that the plaintiff being a party to the sale deed was under an obligation to have affixed the ad valorem Court fees on the sale consideration. Reliance is placed on the decision in Suhrid Singh @ Sardool Singh v. Randhir Singh : AIR 2010 SC 2807. Careful reading whereof would reveal that the question of fraud as is the issue in present case was not the issue in Suhrid Singh (supra).
A Full Bench of this Court in Sunil Radhelia vs. Awadh Narayan 2010 (4) MPHT 477 has, however, dwelt upon the aspect as has arisen in the present case. One of the issues referred for decision therein was whether ad valorem Court fee 3 W.P.No.3348/2013 is not payable when the plaintiff makes an allegation that the instrument is void and hence not binding upon him. While answering the issue the Full Bench held :
" 13. Now in the light of aforesaid settled position by the Apex Court and Full Bench of this Court, the first question referred by the Division Bench may be examined. When the plaintiff makes an allegation that the instrument is void and hence not binding upon him, and if a declaration simplicitor is prayed then he is not required to pay ad valorem Court fee and a fixed Court fee under Article 17, Schedule II of the Court Fees Act will be payable. This position is well settled by the Apex Court in Ningawwa (supra) and continued till the decision in Sneh Gupta (supra). The void document which is not binding upon the plaintiff needs to be avoided and in this regard a declaration is sufficient. The Full Bench of this Court in Santoshchandra (supra), has clarified the position and we respectfully agree with the law laid down by the Full Bench in Santoshchandra (supra).
The impugned order when tested on the principle of law laid down in Sunil Radhelia (supra), it stand the scrutiny as would warrant any interference.
In the result, petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE anand