Madhya Pradesh High Court
Vishnuprasad vs Rajendra Chouhan on 4 January, 2018
HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE
Writ Petition No.1614 of 2016.
(Vishnuprasad Sharma v/s Rajendra Chouhan and others)
&
Writ Petition No.1617 of 2016.
(Vishnuprasad Sharma v/s Rajendra Chouhan and others)
Indore, Dated : 04.01.2018:-
Shri Nitin Phadke, learned counsel for the petitioner.
Shri Harshad Wadnerkar, learned counsel for the
Respondent No.2.
Heard on the question of admission.
Both the aforesaid petitions are heard and decided by this common order.
O R D E R THE petitioner has filed the present petitions being aggrieved by order dated 10.02.2016 by which application under Order VII Rule 11 of CPC filed by the defendant No.1 has been allowed.
[2] Facts of the case, in short, are as under :-
(a) The petitioner/plaintiff has filed the suit for declaration and permanent injunction. According to the plaintiff he is illiterate person and owner of land Patwari Halka No.70/168, Survey No.41/1 area 0.721 hectares situated at Village Bagdi, District Dhar. The said land is recorded in his name and he is in possession and at present he is cultivating the said land. The plaintiff was in need of money, therefore, the defendant took advantage of it had obtained his thumb impression on Power of Attorney dated 26.12.2013 and got it registered from the Office of Deputy Registrar. On 12.11.2014 he came to the agricultural field and started dispute by contending that he has now become owner of land by virtue of the Power of Attorney. The plaintiff lodged the report in police station. Thereafter he came to know that he has sold the said land to defendant No.2 by a registered sale-deed dated 17.11.2014. The plaintiff has valued the suit at Rs.32,44,500-00 for the relief of declaration of the sale-deed as void and valued Rs.10,000-00 for the relief of declaration and paid the fixed Court fee. The plaintiff has sought the relief that the sale-
deed dated 17.11.2014 be declared as void and not binding on the plaintiff.
(b) After notice in the plaint, the defendant Nos.1 and 2 filed their written-statements refuting the allegations made in the plaint.
(c) The defendant No.1 filed an application under Order VII Rule 11 of CPC that this Court is not having pecuniary jurisdiction to decide the suit as the value of the suit is Rs.32,44,500-00. The plaintiff be directed to pay ad valorem Court fee and in default of payment of Court fee the suit be rejected. The plaintiff filed the reply by submitting that the sale-deed is forged and void, therefore, he is not liable to pay the ad valorem Court fee.
(d) The learned Trial Court vide order dated 10.02.2016 has allowed the application and directed the plaintiff to pay the ad valorem Court fee on the basis of the valuation of the suit. Hence, the present petition before this Court.
[3] Shri Nitin Phadke, learned counsel appearing on behalf of the petitioner submits that the plaintiff has pleaded that the sale-deed is forged and does not bear his signature and he is not party to the sale-deed, therefore, in the light of the judgment of this Court passed by the Full Bench in the case of Sunil v/s Awadh Narayan [2010 (4) MPLJ 431], he is not liable to pay ad valorem Court fee. In support of his contention, he has also placed reliance over the decision of Division Bench of this Court in the case of Shyamacharan v/s Roopali Promoters and Construction [2009 (3) MPLJ 691].
[4] Per contra, Shri Harshad Wadnerkar, learned counsel appearing on behalf of the Respondent No.2 submits that the plaintiff is liable to pay ad valorem Court fee as the sale-deed was executed by his Power of Attorney holder, therefore, he has stepped into the shoes of the executant of the sale-deed. Therefore, he is liable to pay the ad valorem Court fee. The learned Trial Court has not committed any error while allowing the application. In support of his contention, he has placed reliance over the Division Bench decision of this Court in the case of Manzoor Ahmad v/s Jaggi Bai [2010 (I) MPWN 109] and the decision of the Apex Court in the case of Suhrid Singh @ Sardool Singh v/s Randhir Singh [AIR 2010 SC 2807].
[5] As per the averments made in the plaint, the plaintiff is alleging fraud by the defendant No.1 in respect of execution of Power of Attorney dated 26.12.2013, but he is not seeking relief of declaration that the Power of Attorney be declared void as the same has been obtained by fraud. He is seeking relief that the sale-deed executed on the basis of said Power of Attorney be declared void which is consequential relief. The petitioner ought to have seek relief of declaration that the Power of Attorney be declared as void on the ground of fraud. In the case of Sunil (supra), the Full Bench of this Court has held that ad valorem Court fee is not payable when the plaintiff makes an allegation that the instrument is void and not binding upon him. The Full Bench has held that 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 the ad valorem Court fee and a fixed Court fee under Article 17, Schedule-II of the Court Fees Act will be payable. The Full Bench delivered the judgment on 08.09.2010. The Apex Court in the case of Suhrid Singh @ Sardool Singh (supra) decided on 29.03.2010 i.e. prior to the judgment of the Full Bench i.e. Sunil (supra), has held that if the executant of the deed seeks cancellation of the deed, he has to pay the ad valorem Court fee on the consideration stated in the sale-deed. Where the executant of a deed wants it to be annulled, he has to seek the relief of cancellation of the deed, he has to sue for cancellation of the deed that the sale-deed be set-aside or declared as not binding, then he has to pay ad valorem Court fee. Para 6 of the 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 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."
[6] The Division Bench of this Court in the case of Manzoor Ahmad (supra) has held that it depends upon the averments made in the plaint whether the ad valorem Court fee is payable or not. Court has to find out whether a transaction is alleged to be "void" or "voidable". In case of void document, it is not necessary to seek the relief of cancellation of document.
[7] In the case of Shyamacharan (supra), the Division Bench of this Court has held that in case where the plaintiff sought a declalratory relief only, but in substance aimed at setting aside the sale-deeds, the Court fee has to be paid in accordance with the law governed by Section 7 of the Court Fees Act. Unless the document is got cancelled by a decree of Court, it remains a valid document. The relief of declaration cannot be sufficient. The plaintiff who is party to the sale-deed is liable to pay ad valorem Court fee not the fixed Court fees.
[8] Therefore, in view of the aforesaid case laws, it is clear that if the plaintiff is a party to the sale-deed and seeking relief of cancellation of the sale-deed, then he has to pay the ad valorem Court fee. In the present case, the defendant No.1 being a Power of Attorney holder of plaintiff has sold the land to the defendant No.2, therefore, the defendant No.1 has stepped into the shoes of the plaintiff and the plaintiff is deemed to be an executant of the sale- deed. Therefore, he is liable to pay the ad valorem Court fee because he is seeking the relief of declaration that the sale- deed be declared void meaning thereby the sale-deed be cancelled. Hence, the Trial Court has rightly allowed the application under Order VII Rule 11 of CPC.
[9] In view of the aforesaid, both the petitions are accordingly dismissed. Let a copy of this order be retained in the connected petition.
[ VIVEK RUSIA ] JUDGE (AKS) Anl Kumar Sharma 2018.01.06 13:46:18
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