Calcutta High Court (Appellete Side)
Ajit Kumar Shil vs Subrata Narayan Chowdhury & Ors on 19 November, 2010
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
C.O. No. 956 of 2009
Ajit Kumar Shil
Vs
Subrata Narayan Chowdhury & Ors.
For the Petitioner : Mr. P. B. Sahu,
Mr. Murari Mohan Das.
For the Opposite Party No. 1 : Mr. Hiranmoy Bhattacharyya,
Mr. Tanmoy Mukherjee.
Heard on : 18.02.2010, 22.02.2010, 10.03.2010 and 15.03.2010.
Judgement on : 19.11.2010
Syamal Kanti Chakrabarti, J.:
In the instant application under Article 227 of the Constitution of India order no 29 dated 18.03.2008 and order no. 39 dated 12.02.2009 passed by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas in T. S. No. 12 of 2005 have been assailed. 2
2. The plaintiff petitioner contends that he filed the Title Suit No. 12 of 2005 against the defendant respondents with the following averment which is only relevant for my adjudication:
a) That one Amiruddi Halder @ Amiruddin Halder was the owner of the property measuring an area of 0.13 decimals of land in C. S. Khatian No. 67, R. S. Khatian No. 265, C. S. Dag No. 447 of Mouja Teghori, J L No. 52, Ward No. 7 holding No. 1967, L R Dag No. 479 P. S. Sonarpur, District South 24-Parganas within Rajpur-Sonarpur Municipality;
b) That the said Amiruddin Halder died on 17.8.1960 leaving behind his widow Hayatan Bibi and one daughter Anefa Bibi as his legal heirs and representatives who have inherited the said property. The said widow Hayatan Bibi died on 17.9.1999 and after her death the only daughter Anefa Bibi became the absolute owner of the said property in question.
The said Anifa Bibi all along possessed and held the said land as the exclusive legal heir and successor of her deceased father Amiruddin Halder and deceased mother Hayatan Bibi. The said Anefa Bibi all along used to pay the relevant rent and taxes in respect of the said property although the name of her father still remains in the record of rights; etc. The prayer of the plaintiff/ petitioner in the said T. S. No. 12 of 2005 was as follows:
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"a) That the plaintiff is the owner of the suit property;
b) For a declaration that the defendant Nos. 1, 2, 6 and 7 as well as 8 have no legal right interest or title in respect of the schedule property and the impugned forged deed being No. 1-
3109 dated 17.4.1961 as if executed by Amiruddin Halder who died on 17.08.1960 in favour of defendant No. 3 to 5's firm has no force or hold any legality over the suit land the said Deeds to be declared as void deed, and the subsequent deed as deed (a) being No. 3800 dated 4.10.2001 in favour of defendant No. 6 and 7; (b) the deed of gift dated 19.11.2001 in favour of defendant no. 8's office being no. 3383 made on the said forged deed dated 1-3109 are not binding upon the plaintiff's purchased property i.e. the suit property.
c) A decree for permanent injunction restraining the defendants and their men and agents from changing the nature and character of the suit property and from carrying any construction or boundary fence in any part of the schedule property until and unless the validity of the illegal forged deed is tried by the Court of law.
d) All costs of unit.
e) For such other relief and reliefs the plaintiff is entitled to under
law and equity. "
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3. While admitting the said plaint on 25.01.2005 the Learned Court below was pleased to hold that court fees paid is sufficient, requisites put in and so directed to issue summons upon the defendants through Court as well as by registered post with acknowledgement due. Thereafter due notice was served upon all the defendants and while considering an application for further hearing of temporary injunction petition the Learned Trial Court on his own accord passed order no. 22 dated 17.04.2007 in the following terms:
" At this stage on perusal of the plaint it appears to me that this is a suit for declaration of a deed as void and for permanent injunction.
It reveals that the instant suit is being filed valued at Rs. 100/- and court fees paid accordingly.
However, I think for determination of proper court fees and valuation of the suit a hearing is necessary.
Accordingly, temporary injunction petition hearing is adjourned today. Fix 28.5.07 for hearing in respect of valuation & court fees. "
4. On 03.12.2007 the plaintiff filed a verified petition stating that no further court fees is required in this case which was fixed for hearing 5 on 28.01.2008. However, the matter was taken up for hearing on 18.03.2008 and upon hearing both the parties the Learned Court below has held that the plaintiff will have to pay ad valorem court fees on the basis of agreed amount of deeds under challenge and accordingly Sheristadar was requested to ascertain total valuation and the court fees payable thereon and to report by 17.04.2008 under order no. 29 dated 18.03.2008.
5. Thereafter the Learned Court below disposed of two petitions filed by the plaintiff, one for assessment of court fees and another for adjournment in the following manner by order no. 39 dated 12.02.2009:
" Plaintiff files hazira.
Plaintiff also files two petitions, one for assessment of Court Fees and another for adjournment.
Defendant files a W.O. against the petition u/s 151 C.P.C. Copy served.
The petition for assessment of Court Fees neither verified nor supported by affidavit. Hence the petition is rejected in limini.
Seen the Sdr.'s report.
6On perusal of record and the report submitted by Sdr. it appears that the valuation of deed no. 10198 is not applicable in this suit. Let Sdr. to submit a fresh report in compliance of order No. 29 dated 18.3.08. Fix 28.4.09 for Sdr.'s report and further order."
6. Now both these orders under challenge relate to discretionary power exercised by the Court in reassessing the court fee payable by the plaintiff in the instant suit without setting aside his own order no. 1 dated 25.01.2005 whereby and whereunder he has held that court fees paid are sufficient. Therefore, two pertinent questions need now be considered in disposing of the application (a) as to whether as regards payment of deficit court fees the Learned Trial Court can review his own order without setting aside the same by the superior Court and (b) whether the order no. 39 dated 12.02.2009 has reached it finality which can now be interfered with by this Court under Article 227 of the Constitution.
7. From the submissions made by the learned advocates for both the parties and on perusal of the entire copies of orders passed by the Learned Court below I find that due notice has been served upon all the parties involved in the suit and the contesting parties have already filed their written statements. Admittedly order no. 1 dated 25.01.2005 7 has neither been challenged by either party nor set aside by any superior Court. Learned lawyer for the petitioner has drawn my attention to the principles laid down in AIR 1951 Calcutta 509 [Kapil Charan Nayak -Vs.- Gitanjali & Ors.], AIR 1971 Calcutta 202 [Sm. Gita Debi Bajoria -Vs.- Harish Chandra Saw Mill & Ors.], 1992(II) CHN 482 and 2008(2) CLJ 306 in support of his contention that in the instant case the plaintiff is not liable to pay any ad valorem court fee as directed by the Learned Trial Court in his order no. 39 dated 12.02.2009 to be read with his order no. 29 dated 18.03.2008. By the said order dated 12.02.2009 the Learned Court below has held that Sheristadar's report regarding valuation of deed no. 10198 is not applicable in the present suit and has fixed 28.04.2009 for further report from Sheristadar and for further order. Therefore, obviously the quantum of ad valorem court fee to be paid by the plaintiff as asked for has not yet been ascertained by the Learned Court below and from this point of view the said order no. 39 dated 12.02.2009 has not been finally disposed of by him. But the Learned Court below has rejected in liminie another petition for assessment of court fee filed by the plaintiff on the grounds that the same was neither verified nor supported by affidavit. Such rejection also is not on merit but on technical grounds. 8
8. It is the specific case of the plaintiff petitioner that in the said title suit no. 12 of 2005 he has neither prayed for recovery of possession of the suit property nor prayed for cancellation of the forged sale deed executed on 17.04.1961 after the death of Amiruddin Halder, the original owner of the property, on 17.08.1960 and as such the same should only be declared as void. Therefore, order for payment of ad valorem court fee on the valuation of such forged sale deeds is illegal, arbitrary and not maintainable in law.
9. From the prayer (b) of the plaint in T. S. No. 12 of 2005 as quoted in paragraph 3 of the instant application it will be crystal clear that the plaintiff has sought for a declaration that the following three deeds are void and not binding upon him and not for cancellation of the same.
a) Deed No. 1-3109 dated 17.04.1961;
b) Deed No. 3800 dated 04.10.2001 and
c) Deed No. 3383 dated 19.11.2001.
10. In AIR 1971 Calcutta 202 a Division Bench of this Hon'ble Court held inter alia, that on plain allegation the plaintiff was in possession of the disputed property and the only thing she needed was declaration that impugned documents were null and void and of no effect, court fee need not be paid under Section 7(iv)(c) of the Court Fees Act. The same principle was followed in the case of Naba Kumar Das -Vs.- Damodar 9 Das [1992 (II) CHN 482]. In that case this Hon'ble Court held that where the plaintiff petitioner instituted the suit against the defendant opposite party for a declaration that the deed of gift in question executed by the father of the plaintiff, the defendant no. 2, in favour of the defendant no. 1 is a nullity and void and is liable to be cancelled and for injunction, such issue cannot be termed to be a suit really speaking for setting aside the disputed deed of gift or in other words, the said prayer cannot be termed to be a principal prayer made in the suit. The plaintiffs not being parties to the disputed deed of gift, the question of setting aside the said deed did not arise at all and simply the suit for declaration that the disputed deed was a nullity or void and not binding upon the plaintiffs without any consequential relief could have been brought by the plaintiffs ignoring the deed altogether and even if the prayer for setting aside the deed was made in the suit, it was merely prayed for as a consequential relief and in such case the court assessed value under Section 4(iv)(b) of the Act has been correctly made. In the case of Sri Kartick Mondal & Ors. -Vs.- Sri Biman Sen & Ors. [2008(2) CLJ (Cal)] this Hon'ble Court also held the same view under the West Bengal Court Fees Act, 1970. It has been held therein that where the principal prayer is made for declaration of title and recovery of possession as consequential relief, the plaintiffs 10 are required to value the entire suit as per provision contained in Section 7(iv)(b) of the Act of 1970 and not under Section 7(v)(b) of the said Act. Relying upon the above principles I hold that in the instant case the plaintiff is not liable to pay any ad valorem court fees on the valuation of impugned deeds as subsequently decided by the Learned Court below in his impugned order no. 29 dated 18.03.2008 to be read with order no. 39 dated 12.02.2009. I also hold that without setting aside the order no. 1 dated 25.01.2005 adjudging the court fees paid as sufficient he cannot reopen the issue on his own accord without framing any specific issue on the basis of pleadings of the parties already on record. These are the two infirmities for which in my opinion the impugned order is not sustainable in law. Both the points are thus decided. Accordingly both the impugned orders relating to payment of ad valorem court fees are hereby set aside.
11. Interim order granted earlier stands vacated and the application is thus disposed of.
12. The Learned Court below is directed to proceed with the case as per law and in view of the observations made above.
13. I make no order as to costs.
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14. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities.
(Syamal Kanti Chakrabarti. J.)