Madhya Pradesh High Court
Ashok Kumar Chaturvedi vs Hunuman Prasad Gupta on 29 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
FA No. 2455 of 2023
(ASHOK KUMAR CHATURVEDI Vs HUNUMAN PRASAD GUPTA AND OTHERS)
Dated : 29-02-2024
Shri Umesh Shrivastava - Advocate for the Appellant.
I.A.No.1645/2024 is preferred under Section 151 of Code of Civil
Procedure for recalling the order dated 17.01.2024.
Facts in brief are that appellant/plaintiff filed an appeal challenging the
judgment and decree dated 31.10.2023 in R.C.S.No.1900028/2012 passed by IIIrd District Judge, Rewa, District Rewa, M.P. Office has raised objection regarding valuation of appeal and appellant/plaintiff filed an I.A.No.362/2024 ignoring the default.
I.A.No.362/2024 was rejected vide order dated 17.01.2024. I.A.No.1645/2024 has been preferred for recalling the order dated 17.01.2024 on the ground that the impugned order have no consideration regarding Sunil Radhelia & Others Vs. Awadh Narayan & Others I.L.R. (2010) M.P. 2454 whereas the case referred in the impugned judgment Sohrit Singh @ Shardol Singh Vs. Randhir Singh and others is not complete answer regarding the default raised by the Office. Full bench of Madhya Pradesh High Court in Sunil Radhelia & Others Vs. Awadh Narayan & Others is complete answer to the objection raised by the Office. Therefore, the order dated 17.01.2024 be recalled and default pointed out by the Office be ignored.
Heard.
The relevant portion of Sunil Radhelia and Others is being referred:-
"15. Now second question may be seen in respect of the judgment Signature Not Verified Signed by: KRISHNA SINGH Signing time: 13-03-2024 21:41:48 2 rendered in Narayan Singh (supra). In Narayan Singh, the plaintiffs had filed suit with the averment that the sale-deed in question was illegal and void. It was a forged document and also without consideration. The plaintiffs were in possession of the land, a relief for declaration was prayed and a fixed court-fee was paid. The defendants moved an application under Order 7 Rule 11 of CPC for rejecting the plaint on the ground that though the plaintiffs had assailed the sale-deed but had not paid ad valorem court-fee which ought to have been paid. The trial Court had rejected the application which order was assailed before the Division Bench . The Division Bench held that the case of the plaintiffs was that the document was a forged one and it does not bear the signature of Sitaram though Sitaram was party to the sale-deed. Plaintiffs had claimed their possession over the suit land. The suit was for permanent injunction and declaration. When the document was alleged to be illegal, void and executant had not signed the document, it was not necessary for them to make payment of ad valorem court-fee. The document in the plaint was shown to be void and not voidable, so ad valorem court-fee was not required and a fixed court-fee was found to be adequate."
The averments of the para 3, 4, 5, 6, 7 & 9 are to the effect that plaintiff agreed to sell the disputed property to defendant No.1 and 2 for a consideration of Rs.50,00,000/- and defendant No.1 and 2 paid him only Rs.15,00,000/- in cash and a cheque No.19193 dated 28.06.2012 of Rs.5,00,000/- and thereafter the defendant signed the sale-deed before Sub Registrar without reading the document. The cheque was dishonored and plaintiff got apprehension that he is being cheated by defendant No.1 and 2. Thereafter, he came to know that sale- deed has been executed differently as was agreed. So, when he demanded the amount of Rs.5,00,000/- then defendant No.1 and 2 denied to pay the amount Signature Not Verified Signed by: KRISHNA SINGH Signing time: 13-03-2024 21:41:48 3 of cheque and replied that sale-deed has been executed in their favour. He agreed to sell the 0.061 hectares of Survey No.669 to defendant No.1 and 2 whereas these included the total area of Survey No.669 in the sale deed.
On these facts, appellant/plaintiff claimed that he is entitled to pay fixed Court fees only under Article 17 (iii) of Schedule II of the Court Fees Act and his matter is covered by Sunil Radhelia (supra).
The above mentioned facts of the plaint taken together, if proved, refer the document only voidable because so called forgery or cheating is not about the nature of document. It is about the consideration or area mentioned in the document.
Sunil Radhelia (supra) apply to cases when the document was alleged to be illegal, void and executant had not signed the document and then it was not necessary for them to make payment of ad valorem Coourt fees.
In this case, since the document is voidable. Therefore, the argument of appellant is not sustainable and does not fulfil the requirement to recall the order dated 17.01.2024.
Accordingly, I.A.No.1645/2024 is dismissed.
The matter be listed after removing the default.
(GAJENDRA SINGH) JUDGE veni Signature Not Verified Signed by: KRISHNA SINGH Signing time: 13-03-2024 21:41:48