Orissa High Court
Kumar Soumyakanta Bisoi vs Banita Panda And Another ... on 18 December, 2018
Equivalent citations: AIRONLINE 2018 ORI 345, 2019 AIR CC 804 (ORI), (2019) 195 ALLINDCAS 738 (ORI), (2019) 3 CIVILCOURTC 209, (2019) 2 ICC 574
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P. No.1455 of 2018
In the matter of an application under Article 227 of the Constitution
of India.
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Kumar Soumyakanta Bisoi ............... Petitioner
---versus--
Banita Panda and another ............... Opp. Party
For Petitioner : Mr. Samir Kumar Mishra,
Mr. S. Rout, Advocates
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing: 18.12.2018 │ Date of Judgment: 18.12.2018
---------------------------------------------------------------------------- Dr. A.K. Rath, J. This petition challenges the order dated 9.11.2018 passed by the learned Civil Judge (Sr. Divn.), Angul in C.S. No.267 of 2014, whereby and whereunder the learned trial court allowed the application of the defendant no.1 filed under Order 7 Rule 11(c) C.P.C. and directed the plaintiff to pay ad-valorem court fees.
02. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the plaintiff-petitioner instituted the suit for declaration of title and declaration that the sale deed dated 03.04.2010 executed by him in favour of defendant no.1 as null and void. The defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. While the matter stood thus, the defendant no.1 filed an application under Order 2 7 Rule 11(c) C.P.C. stating inter alia that the plaintiff has instituted the suit for declaration that the registered sale deed as void. Though the plaintiff valued the suit at Rs.33,99,000/-, i.e., the consideration amount of the sale deed, but paid declaratory court fees on the plaint instead of ad-valorem court fees. The plaintiff is the executant of the sale deed. He seeks its cancellation. He has to pay ad-valorem court fees. Plaintiff filed objection to the said application. Learned trial court came to hold that the plaintiff is the executant of the sale deed bearing No.10011001803 dated 03.04.2010. He seeks relief of cancellation of the sale deed. Thus he has to pay the ad-valorem court fees. Held so, it directed the plaintiff to pay the ad-valorem court fees.
03. Heard Mr. Samir Kumar Mishra, learned Advocate for the petitioner.
04. Mr. Mishra, learned Advocate for the petitioner, submits that the sale deed is a nominal one. No consideration has been passed. The defendant no.1 has given an undertaking in the presence of the witnesses that the sale deed has been executed without consideration. In view of the same, the plaintiff can put his own valuation and pay the court fees. Learned trial court is not justified in directing the plaintiff to pay the ad- valorem court fees. To buttress the submission, he places reliance on the decisions of the Calcutta High Court in the cases of Smt. Gita Debi Bajoria vs. Harish Chandra Saw Mill and other, AIR 1971 Calcutta 202, Smt. Ranjani Bala Rakshit vs. Biswanath Rakshit and other, AIR 1981 Calcutta 189 and this Court in the case of Smt. Nakhyatramali Debi vs. Chandrasekhar Pattnaik and other, AIR 1977 Ori.161. 3
05. The sole question that hinges for consideration as to whether the plaintiff, who is a party to the sale deed and seeks declaration that the sale deed is void, shall pay the ad-valorem court fees or not ?
06. The subject matter of dispute is no more res integra. In Suhrid Singh @ Sardool Singh vs. Randhir Singh & others, AIR 2010 SC 2807, the apex Court held:
"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 nonest, 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.
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The 4 plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that, therefore, court fee had to be paid on the sale consideration mentioned in the sale deeds."
07. In Umakanta Das and another vs. Pradip Kumar Ray and others, AIR 1986 Ori.196, this Court held that if the term in the sale deed is not ambiguous then any external aid to find out the true intention of the parties cannot be availed of and the narration in the document would be the sole determining feature. If the intention of the parties is clear as found from the recitals, passing of title is in presenti and not kept in abeyance till full payment of consideration.
08. Reverting to the facts of this case and keeping in view the law laid down by the apex Court in the case of Suhrid Singh @ Sardool Singh (supra), this Court finds that the plaintiff has executed the sale deed. On a cursory perusal of the photostat copy of the registered sale deed produced in Court today, it is evident that consideration amount has been paid. He has to pay ad-valorem court fees.
09. The undertaking given by the defendant no.1 does not come to the rescue of the plaintiff. The recitals of the sale deed are clear and unambiguous. As held by this Court in Umakanta Das and another (supra) if the term in the sale deed is not ambiguous then any external aid to find out the true intention of the parties cannot be availed of and the narration in the document would be the sole determining feature.
10. The decision in the case of Smt. Gita Debi Bajoria (supra) is distinguishable on facts.
5
11. In Smt. Ranjani Bala Rakshit (supra), the petitioner was given to understand that a power of attorney was being done and she lent her signature on such representation. Later she came to know that it was really a sale deed. The court opined that there was no valid execution of the deed. There was misrepresentation. The transaction was void. In such a suit, it is not necessary to seek a relief of setting aside the document. Ad-valorem court fee is not required to be paid. Law has undergone a sea change after the decision of the apex Court in the case of Suhrid Singh @ Sardool Singh (supra).
12. In Smt. Nakhyatramali Debi (supra), the plaintiff instituted the suit for partition and delivery of possession. This Court held that the question of court-fee must be considered and determined in the light of the allegations made in the plaint. There is no quarrel over the proposition of law.
13. There being no illegality or infirmity in the order dated 9.11.2018 passed by the learned Civil Judge (Sr. Divn.), Angul in C.S. No.267 of 2014, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed. No costs.
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Dr. A.K. Rath, J.
Orissa High Court, Cuttack The 18th December, 2018/Basanta