Madhya Pradesh High Court
Deepak Kumar vs Dr. Komalchand on 25 August, 2015
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
SINGLE BENCH : HON'BLE SHRI JUSTICE S.C. SHARMA
Civil Revision no. 180/2015
Deepak Kumar S/o Shri Mannulal Garg
Vs.
Dr. Komalshand S/o Shri Jethmal Kothari and others.
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O R D E R
th
(Delivered on this 25 of August, 2015) Parties as before this Court.
The applicant before this Court has filed this present revision against the order dated 01/05/2015 passed in Civil Suit no. 13-A/2014 by the learned First Additional District Judge, Dewas.
2 The facts of the case reveal that respondent no. 1 has filed a suit seeking possession and declaration against the respondents in respect of a land in the year 2009 and has paid court fee in respect of the suit on a valuation of Rs. 3.50 lacs. The present petitioner, who is the defendant no. 6 in the civil suit, has filed a cross-objection and by taking into account that the land is an agricultural land, he has also paid court fee by valuing the suit at the value of Rs. 3.50 lacs, meaning thereby, in respect of the suit as well as in respect of the cross-objection, the plaintiff as well as the defendant no. 6 who is the present petitioner, have paid the same court-fees. The suit was filed in the year 2009 and the matter was fixed for deciding the Issue nos. 6 and 8. At that stage, an application was preferred under Order 7 Rule 11 of Code of Civil Procedure stating that the suit has not been properly valued.
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3 Learned Sr. counsel for the applicant has vehemently argued before this Court that it is not an agricultural land and therefore, the plaintiff is required to pay the court fee by taking into account the valuation, on the basis of sale-deed and to pay court-fees by taking the value of the land in question as per the sale-deed, which is subject matter of the suit. The trial Court has dismissed the application preferred under Order 7 Rule 11 of Code of Civil Procedure.
4 This Court has carefully gone through the order passed by the trial Court. The same reflects that the plaintiff as well as the defendant no. 6, who has filed the cross-objection, have valued the suit at Rs. 3.50 lacs and court fees of Rs. 2040/- has been paid keeping in view the section 7(5), Schedule -II, Article 17 of the Court Fees Act.
5 The trial Court has arrived at a conclusion that while the land was transferred as per the sale-deed in question, it was an agricultural land and as the suit was for possession and declaration, the court-fee has already been paid as per the aforesaid statutory provision of law.
6 Learned counsel has vehemently argued before this Court that as per the sale-deed, which is the subject matter of the dispute, the suit has not been valued keeping in view the valuation of the sale deed.
7 Learned counsel for the respondent Mr. Sumeet Samvatsar, has drawn attention of this Court towards the judgment delivered by this Court in the case of Laxmikant Dube Vs Smt. Piyaria wd/o Dadoli Ram and others reported in 2002(2) MPLJ 44. Para nos. 2 to 4 of the aforesaid judgment read as under :
2. The plaintiffs have filed the suit seeking the declaration that the two registered sale-deeds dated 20-6-2000 in respect of the lands in dispute which are said to have been executed by defendant Page no - 3 -
No. 1 Smt. Malo in favour of the defendant Nos. 2 to 4 at the instance of the defendant Nos. 5 and 6 are void and have no adverse effect on the rights of the plaintiffs on these lands. The plaintiffs have valued the relief for declaration at Rs. 4,70,200/-, the consideration shown in the sale-deed, for purposes of the pecuniary jurisdiction of the Court and have paid fixed Court fee as provided in Article 17 Schedule II of the Court fees Act. The objection of the defendants is that the suit ought to have been valued ad valorem for purposes of Court fee also.
This objection has been overruled by the Trial Court by the impugned order on the ground that the plaintiffs are not parties to these sale-deeds.
3. After hearing the learned counsel for both the sides this Court is of the opinion that the suit has not been undervalued for purposes of Court fee. It is well settled that the question of Court fee must be considered in the light of allegations made in the plaint and its decision can not be influenced either by the pleas in the written statement or by the final decision of the suit on merits. [Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245, Sub-hash Chand v. M.P.E.B., 2000(4) M.P.H.T. 318 (FB) = 2000(3) MPLJ 522]. In the present case the averments in the plaint are that Jageshwar Prasad Mishra was the Bhumiswami of the lands in dispute and after his death he left behind his three heirs. The plaintiff No. 1 is widow of his son Dadoli and the plaintiff No. 2 is his daughter. Defendant No. 1 Smt. Malo is also his daughter. She is a totally disabled person. There has been no partition amongst the heirs of Jageshwar Prasad and therefore Smt. Malo could not sell the suit lands to the defendant Nos. 2 to 4. Thus according to the plaint the plaintiffs are not the executants of the sale-deeds in question. It is not necessary for them to have the sale-deeds cancelled or set aside. The fixed Court fee has been properly paid under Article 17 Schedule II of the Court Fees Act [Om Prakash v. Suratram, 1994 MPLJ 291 and Ambaram v. Pramilabai, 1997(1) MPLJ 13]. The Full Bench of this Court has held more than 30 years ago in Santosh Chandra and Ors. v. Gyansunder Bai, 1970 MPLJ 363, that if the plaintiff is not bound by the decree, agreement or liability and if he is not required to have it set aside, he can claim to pay Court fee under any of the sub- clauses of Article 17, Schedule II of the Court Fees Act. Therefore, it is settled law that a person who is not a party to the sale-deed and who is not bound by it need not pay ad valorem Court fee on the basis of the consideration shown in the sale-deed. Similarly, a party who alleges that the sale-deed is sham and bogus document need not pay ad valorem Court fee.
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He is required to pay ad valorem Court fee only when the sale-deed has been executed by him and he seeks to avoid it on the ground of fraud or misrepresentation practised on him as to the contents of the sale-deed.
4. The learned counsel for the respondents relies upon an unreported order dated 2-7-1997 in Civil Revision No. 2123 of 1996 : Vinay Kumar Mishra v. Geeta Mishra. That was a case in which the suit was filed claiming the right of pre-emption. The question which has arisen in the present case was not there. That case has no application to the present one.
8 In the aforesaid case, this Court has held that the plaintiff was not a party to the sale-deed in respect of which a declaration has been sought and therefore, was justified in not paying ad valorem court fee on the basis of the consideration shown in the sale deed. In light of the aforesaid, question of paying ad valorem court fee as per the valuation of the sale deed does not arise.
9 Learned counsel for the respondent has also placed reliance on the judgment of Full Bench reported in 2001(I) MPJR 22 in the case of Subash Chand Jain Vs. The Chairman, MPEB, Jabalpur and three others. Para nos 4 and 6 of the aforesaid judgment read as under :
4. In Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245 the Apex Court in paragraph 13 said that the question of Court-fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written-
statement or by the final decision of the suit on the merits. Later decision of Supreme Court reported in Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2384 holds in paragraph 4 of the judgment that:
"4. As regards the main question that arises for decision, it appears to us that while the Court-fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiffs suit will have to fail for failure to ask for consequential relief is of no concern to the Court at that stage, the Court in deciding the question of Court-fee Page no - 5 -
should look Into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand In the way of the Court looking at the substance of the relief asked for ......... Thereafter the Apex Court was called upon to consider the question again in Commercial Aviation and Travel Company v. Vimal Pannalal, AIR 1988 SC 1636. In paragraphs 7 to 9, the Court said :
"7. So far as suits coming under Section 7(iv) of the Court-fees Act are concerned, the Legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The reason is obvious. The suits which are mentioned under Section 7(iv) are of such nature that is difficult to lay down any standard of valuation. Indeed the Legislature has not laid down any standard of valuation in the Court-fees Act. Under Section 9 of the Suits Valuation Act, the High Court may with the previous sanction of the State Government, frame rules for the valuation of suits referred to in Section 7(iv) of the Court-fees Act. Although the Punjab High Court has framed rules under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such rules do not lay down any standard of valuation with regard to suits coming under Section 7(iv) of the Court- fees Act. It has already been noticed that under Rule (4) (I) of the Punjab High Court Rules, the value of suit for accounts for purposes of Court fee will be as determined by the Court-fees Act, which means that the valuation of the reliefs will have to be made by the plaintiff under Section 7(iv)(f) of the Court-fees Act.
8. In a suit for accounts, it is almost impossible for the plaintiff to value the relief correctly. So long as the account is not taken, the plaintiff cannot say what amount if at all, would be found due to him on such accounting. The plaintiff may think that a huge amount would be found due to him, but upon actual accounting, it may be found that nothing is due to the plaintiff. A suit for accounts is filed with the fond hope that on accounting a substantial amount would be found due to the plaintiff. But the relief cannot be valued on such hope, surmise or conjecture.
9. In this connection, we may refer to Page no - 6 -
the provisions of Order VII, Rule 11(b) of the Civil P.C. which provides, inter alia, that the plaint shall be rejected where the relief claimed is under valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so. It is manifestly clear from the provision of Order VII Rule 11(b) that a Court has to come to a finding that the relief claimed has been under-valued, which necessarily means that the Court is able to decide and specify proper and correct valuation of the relief and, after determination of the correct value of the relief, requires the plaintiff to correct his valuation within a time to be fixed by the Court. If the plaintiff does not correct the valuation within the time allowed, the plaint is liable to be rejected. The question is whether in a suit for accounts simpliciter, the Court can come to a finding as to the proper and correct value of the relief until the final determination is made. In our opinion, ordinarily it is not possible for the Court at a preliminary stage to determine the value of relief in a suit for accounts simpliciter. If the Court is itself unable to see what the correct valuation of the relief is, it cannot require the plaintiff to correct the valuation that has been made by him. Indeed in a suit for accounts, it is also difficult for the Court to come to a finding even as to the approximate correct valuation of the relief. In such a case, the Court has no other alternative than to accept plaintiffs valuation tentatively."
Thereafter in paragraph 21, the Court observed :
"21. In making the above observation, this Court has placed reliance upon its earlier decision in Meenakshisundaram's case AIR 1979 SC 989 (supra) which, as noticed above, related to Section 35(1) of the Tamil Nadu Court-fees and Suit valuation Act. But one significant fact that is to be noticed in the case is that there is an objective standard of valuation that is, the rent of the leasehold interest. It may be reiterated that when there is an objective standard of valuation to put a valuation on the reliefs ignoring such objective standard, might be a demonstratively an unreasonable valuation and the Court would be entitled to interfere with the matter."
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In Neelavathi v. N. Natrajan. AIR 1980 SC 691, the Court said in paragraph 6 that :
"6. On reading of the plaint as a whole, we are unable to agree with the view taken by the High Court. It is settled law that the question of Court-fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole........,..,........,." (Underlining supplied) In Smt. Tara Devi v. Thakur Radha Krishna Maharaj, AIR 1987 SC 2085, the Court said in paragraph 4 that :
"4. The Instant special leave petition has been filed against the said order. We have heard the learned counsel and in our considered opinion we do not find any merit in the arguments made on behalf of the petitioner. It is now well-settled by the decisions of this Court in Sathappa Chettiar v. Ramanathan Chettiar (supra) and Meenakshisundaram Chettiar v.
Venkatachalam Chettiar (supra) that in a suit for declaration with consequential relief falling under Section 7(iv)(c) of the Court-fees Act 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of Court-fee and Jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively under-valued, the Court can examine the valuation and can revise the same. The plaintiff has valued the lease hold interest on the basis of the rent. Such a valuation, as has been rightly held by the Courts below, is reasonable and the same is not demonstratively arbitrary nor there has been any deliberate under- estimation of the reliefs. ..............."
(underlining supplied) In Division Bench Judgment of this Court in Badrilal Bholaram, contractor. Indore v. State of M.P. 1963 MPLJ 717 : (AIR 1964 Madh Pra 9), it is held that where the relief sought itself has a real money value which can be objectively ascertained, that value is the value of the relief and any other Page no - 8 -
value ascribed to it will be arbitrary and unreasonable. Where a plaintiff is sought to be made liable either under a decree or a deed for a specified amount and he seeks to avoid that liability, the value of the relief is the extent of the loss to which but for the suit, he would be subjected and from which he wants to be relieved. In paragraphs 6 and 7, it is said that :
6. It is plain from the language of the enactment itself that, in suits governed by the various clauses of sub-section (iv) of Section 7, liberty has been given to the plaintiff to value the relief claimed by him for purposes of Court-fee. In Sathappa Chettiar v. Ramanathan Chettiar, the Supreme Court authoritatively clarified the position and observed :--
'If the scheme laid down for the computation of fee's payable in the suits covered by the several sub sections of Section 7 is considered, it would be clear that, in respect of suits falling under Sub- section (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of Court- fees. (page 1033).
7. While the plaintiff is at liberty to value the relief claimed in the suits governed by the various clauses of Sub-
section (4), including those for a declaration with the consequential relief of injunction, this Court has consistently held that he cannot be allowed to put on arbitrary value and that, he does so and the court considers that it is too low or unreasonable in that it bears no relations to the right litigated, it may require him to correct the valuation. ........... (underlining supplied) Badrilal Bholaram's case (supra) has been followed by single Bench of this Court in Mangilal Jain's case (1977 (2) Weekly Notes 480) (supra) facts of which are similar to the case under consideration.
In the opinion of learned single Judge, ad-valorem Court-fee was payable on the amount of liability sought to be avoided which in the case was Rs. 28,942.21 nps pursuant to the demand bill substantively against the plaintiff towards electric charges failing which supply of electricity was to be cut off and the suit of the plaintiff was for declaration that he had not committed any theft of energy and was not liable to pay the amount and the defendants be restrained from disconnecting the installation.
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6. The suits which are mentioned under Section 7(iv) of the Act of 1870 are of such nature where it is difficult to lay down any standard of valuation. This means that the valuation of the reliefs will have to be made by the plaintiff under the entry against which the suit is preferred. Provisions of Order 7 Rule 11B of the C.P.C. provides inter alia that the plaint shall be rejected where the relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time fixed by it, fails to do so. Under this provision, Court has to reach a finding of under-valuation, specify the correct valuation of the relief, determine the same and require the plaintiff to correct the same within the time fixed by the Court. Failure to do so would entail rejection of the plaint. Obviously, the Court would undertake this enquiry in the interest of revenue after realizing that the valuation of plaintiff is demonstratively unreasonable and case for interference is made out. Otherwise the plaintiff is free to make his own estimation of the reliefs sought in the plaint and the valuation both for purposes of Court-fee and Jurisdiction has to be ordinarily accepted.
10 In light of the aforesaid judgment, the trial Court has rightly arrived at a conclusion that the court fee was rightly paid by the plaintiff keeping in view the section 7(5), Schedule- II, Article - 17 of the Court Fees Act. This court does not find any illegality committed by the trial Court. Not only this, it is pertinent to note that the civil suit is of the year 2009. The application was filed on 15/04/2015. Nothing prevented the plaintiff to file application. Earlier on the first available opportunity. The plaintiff opted to remain silent for about six years. The trial Court has observed that the plaintiff is trying to delay the final adjudication of the aforesaid suit. Not only this, the present applicant who is the defendant no 6 has also valued the suit at Rs. 3.50 lacs, meaning thereby the same valuation which has been done by the plaintiff while preferring cross- objection.
11 In the result, considering the totality of the facts and circumstances of the case, this court does not find any reason to interfere with the impugned order dated 01/05/2015. The Page no - 10 -
admission is declined.
12 As the civil suit is of the year 2009, the trial Court shall make all possible endeavor to decide the suit as early as possible preferably within a period of 6 months from the date of receipt of certified copy of this order. The trial Court will not grant any unnecessary adjournment in the case.
C c as per rules.
(S.C. SHARMA) Judge amol