Hanuman Singh Patel vs Jamuna Singh Patel & another

This petition under Article 227 of the Constitution of India has been filed challenging the order dated 14.10.2016 passed by the First Civil

Judge, Class-I, Sirmaur, District Rewa in Civil Suit No. 119-A/2013 rejecting the application filed by the petitioner/defendant under Order 7 Rule

11 of the Code of Civil Procedure (for short ''CPC'') for directing the plaintiff to pay ad valorem court fee.

The plaintiff filed a suit seeking declaration that the registered sale deed executed by him on 24.8.2012 in favour of the defendant with respect to

Kh. No. 473/3 area 0.19 acre of village Jhalwar, Tehsil Sirmour district Rewa is non est and void, however, he be declared owner thereof. The

permanent injunction not to interfere in the possession of the plaintiff was also prayed for.

The defendant/petitioner filed an application under Order 7 Rule 11 (d) of CPC inter alia contending that the suit without payment of ad valorem

court fee is not maintainable because the plaintiff himself executed the sale deed in favour of defendant and he wanted to avoid the same seeking

declaration in this regard which would mean for cancellation of the sale deed to which ad valorem court fee as per Section 7(iv)(c) of the Court

Fees Act is required to be paid. In support of his contention, reliance has been placed on the Division Bench judgment of this Court in the case of

Ambika Prasad and others vs. Shri Ram Shiromani @ Chandrika reported in 2011(3) MPLJ 184. However, it is urged that the trial court

committed error of law in rejecting the application by passing the impugned order.

The respondent No.1 has been treated as served as per the office note dated 18.5.2017 and thereafter no one is appearing on his behalf.

Learned Government Advocate representing the State submits that the trial court has not considered the judgment of Ambika Prasad (supra)

while passing the order impugned and in the facts of the case the ad valorem court fee is required to be paid, therefore, the order impugned passed

by the trial court may be set aside.

After having heard learned counsel appearing on behalf of both the parties, first of all the provision of Section 7(iv)(c) is required to be

considered:

Computation of fees payable in certain suits.- The amount of fee payable under this Act in the suit next hereinafter mentioned shall be computed

as follows :-

(iv) In suits-

(c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, according to

the amount at which the relief sought is valued in the plaint or memorandum of appeal within a minimum fee of forty rupees. In all such suits the

plaintiff shall state the amount at which he values the relief sought.

On perusal of the aforesaid provision it is apparent that for a declaratory decree where consequential relief is sought for then the court fee would

be payable according to the amount at which the relief sought is valued. In the present case, the question would be that on sale consideration of the

registered sale deed dated 24.8.2012 executed by the plaintiff the ad valorem court fee is required to be paid or merely making an allegation that

the said document got executed by misrepresentation of the facts it is void and court fee is not required to be paid by him.

The similar issue came for consideration before the Full Bench of this Court in the case of Sunil S/o Dev Kumar Radhelia and others vs. Awadh

Narayan and others reported in 2010(4) MPLJ 431. The Full Bench of this Court said that when plaintiff makes an allegation that the instrument is

void and not binding on him, however, on asking cancellation, he is not required to pay the ad valorem court fee. In the case of Ambika Prasad

(supra) the Division Bench of this Court has considered the judgment of Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors reported in

(2010) XII SCC 112 and relying upon para-7 thereto it is held that in case the judgment of Suhrid Singh (supra) would have been brought to the

notice of the Full Bench, the view take by the Division Bench in the case of Ambika Prasad (supra) would have been taken by the Full Bench in

the case of Sunil (supra). Similar issue came for consideration in the case of Israt Jahan vs. Rajia Begum and others reported in 2010(1) MPLJ 50

before the Division Bench of this Court and this Court relying upon the judgment of the Apex Court in the case of Shamsher Singh vs. Rajinder

Prasad and others reported in AIR 1973 SC 2364 held that in case the relief couched in the plaint having an effect of cancellation and avoiding the

document and a person claiming such relief is a party to the instrument, the ad valorem court fee would be payable for setting aside of the sale

deed though implicit in the declaratory form. Thereafter relying upon the judgment of Ambika Prasad (supra) of this Court and Suhrid Singh

(supra) this Court in the case of Ramsiya v. Ramkatori and others reported in 2013(1) JLJ 189 and Anil Tripathi vs. Urmila Tripathi and another

reported in 2016(3) MPLJ 257 has reiterated the same principle. In the said context para-6 of the judgment of Suhrid Singh (supra) is relevant,

which is reproduced as under:-

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 tohave 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(ii) of Second Schedule of the

Act.

On perusal of the aforesaid it is clear that if an executant of a deed wants to annul the same he has to seek relief of cancellation of the deed, but,

in case he is not an executant of the document and seeks annulment of the deed, he may ask for the relief of declaration that the deed is invalid or

non est or not binding on him, therefore, the executant of the deed can ask for cancellation of the deed to which the ad valorem court fee is

required to be paid, but, if he is not executant in possession he may ask for declaration of the said sale deed as null and void and to declare their

right to which court fee is not payable by him. In the said context, at present looking to the judgment of Apex Court, the judgment of Ambika

Prasad (supra) holds the field and in the present case the trial court rejected the application without considering the judgment of Ambika Prasad

(supra) merely concluding that the facts of the case of Israt Jahan (supra) do not apply in the present case. In my considered opinion, the trial court

committed an error while passing the order impugned rejecting the application under Order 7 Rule 11 of CPC merely on having stray observation

of non-applicability of the judgment of Israt Jahan (supra) without due consideration of all the said judgments.

Accordingly, this petition succeeds and is hereby allowed. The order impugned dated 14.10.2015 passed by the trial court in Civil Suit No.

119-A/2013 stands set aside. The trial court is directed to reconsider the application under Order 7 Rule 11 of CPC filed by the defendant and to

decide the same in accordance with law after considering the judgments as referred hereinabove and to pass appropriate order.

With the aforesaid observation, this petition stands allowed and disposed of.