Prajot Bhalchand Helkar vs Shiv Kumar And Others

Heard the matter finally with the consent of the parties.

This petition has been filed by the petitioner/ plaintiff under Section 115 of Cr.P.C. against the order dated 23. 01.2017 passed by the 10th Civil Judge, Class I, Jabalpur in Civil Suit No. 567-A/16 whereby the petitioner/ plaintiff's application filed under Order 7, Rule 11 of CPC for rejection of the counter claim has been dismissed.

In brief, the facts of the case are that the petitioner has filed a civil suit for declaration and permanent injunction claiming inter alia that the petitioner/ plaintiff be declared as owner of the land situated at settlement No. 421, P.C.No.28 new number-7, Khasra No. 131/9 admeasuring 5200 Sq. Ft., which has been purchased by the petitioner vide registered sale deed dated 1.7.2005 and a declaration is sought that the plaintiff is the owner of the said property and the defendant be restrained from interfering with the title and possession of the said property. It is further prayed that another sale deed dated 29.05.2005 which has been executed by the defendant No.1 in respect of the same land to defendant No.2 be declared as null and void and defendant No.2 be restrained from interfering with the petitioner/ plaintiff's possession of the property. It is also sought that the sale-deed which has been executed in favour of the plaintiff be declared as absolute sale-deed and the defendants be restrained from interfering with the plaintiff's possession and they be also restrained from creating any third party right in respect of the disputed property. In the aforesaid suit, written statement has already been filed by defendant No.3 wherein it is mentioned that Smt. Shailja Bhalchand Helkar, the mother of the plaintiff by fabricating the power of attorney allegedly executed the sale deed in favour of her son Prajot Bhalchand Helkar, the petitioner/plaintiff herein. A counter claim to this effect has also been filed seeking declaration that the sale-deed of the suit land dated 1.7.2005 and sale deed dated 29.05.2015 be declared as null and void along with prayer for injunction.

In the aforesaid counter claim, plaintiff preferred an application under Order 7, Rule 11 of the CPC contending that ad-varolem court fee has not been paid for ,. It is further contended that the sale deed which was executed on the basis of such power of attorney is null and void ab initio. The aforesaid application filed under Order 7, Rule 11 of CPC which was opposed by defendant No.3 has been dismissed by the learned Judge of the trial Court vide its order dated 23.01.2017 holding that since contention of the defendant is that power of attorney has been executed by playing fraud, hence ad-varolem Cour fee cannot be imposed is acceptable.

Learned counsel for the petitioner has submitted that so far as the signature of defendant No.3 on the Power of Attorney is concerned, the same is not disputed and thus, once signatures are held to be not disputed, in such a case, ad-varolem Court fee is required to be paid.

Learned counsel for the petitioner/ plaintiff has further placed reliance on the decision reported in 2010(1) MPWN-109 (Manzoor Ahmed V/s Jaggi Bai and others) Thus, it is submitted that the impugned order be set aside and the application filed by the applicant under Order 7, Rule 11 of CPC be allowed.

Counsel for the respondent no.3, on the other hand has opposed the prayer and has submitted that no illegality has been committed by the learned judge of the trial court in holding that ad valorem court fees is not required to be paid. He has also relied upon a full bench judgement rendered in the case of Sunil Radhelia and others vs. Awadh Narayan and others reported as 2010(4) M.P.H.T. 477 wherein the full bech has held that in such circumstances the plaintiff is not required to pay the ad valorem court fees.

A perusal of the application filed under Order 7, Rule 11 filed by the plaintiff reveals that the following relief has been sought :-

"अतः माननीय न्यायालय से प्रार्थना है कि, प्रतिवादी क्रं.3 का प्रतिदावा न्यायषुल्क के अभाव में निरस्त किया जावे।

In the considered opinion of this Court, the aforesaid order cannot be challenged under Section 115 of C.P.C. as the same is hit by the mischief of Section 115 of C.P.C. Admittedly, had this application been allowed, the Court, instead of dismissing the suit, ought to have directed the respondents to pay the Court fees. In view of the same, in the considered opinion of this Court, the civil revision, itself was not maintainable and was liable to be dismissed on this ground only. However, looking to the fact that the petition is pending since 2017, no purpose would be served to dismiss the petition on this ground only, hence, by invoking the powers under Section 227 of the Constitution of India, the matter is being decided on its merits.

A perusal of the application filed by the petitioner /plaintiff under order 7 rule 11 of CPC reveals that it has been drafted in a casual manner not even referring to the Court Fees Act, 1870. It is not mentioned as to under which provisions of law the counter claim is barred. Before this court also, in the memorandum of this civil revision there is no reference of any legal provision under which it could be said that the counter claim was liable to be affixed with ad valorum court fees.

A perusal of the impugned order reveals that the learned Judge of the trial Court has held that according to the defendant no.3 in its counter claim, the power of attorney was not executed by defendant No.3 as it does not bear her signature. Thus, a plea has been taken by the defendant that she has not signed the alleged power of attorney, in such a situation, it cannot be said that for cancellation of such document which is not executed by her, the defendant No.3 is required to pay ad-valorum court fees.

A perusal of the counter claim also reveals that it is clearly pleaded that the signatures on power of attorney have been specifically denied by defendant No.3 and it is averred that forged signatures have been appended to the power of attorny. Thus, the contention of the petitioner that there is an admission that the signatures on the power of attorney are of respondent No.3 / defendant No.3 only cannot be accepted. In the case of Sunil Radhelia (supra), the full bench has held as under:-

"16. To sum up, the questions referred to this Court are answered thus:-

(1) Ad valorem Court fee is not payable when the plaintiff makes an allegation that the instrument is void and hence not binding upon him.

(2) The decision rendered in Narayan Singh (supra), lays down the law correctly that the plaintiff a party to the instrument is not required to pay ad valorem Court fee as he had made an allegation that the instrument was void on the ground that the document was forged one and it does not bear the signature of the executant.

Now matter be placed before the Division Bench for deciding the case in accordance with law."

The judgment cited by the petitioner in the case of Manzoor Ahmed (supra) is distinguishable on facts and is of no help to the petitioner.

In view of the same, in the considered opinion of this Court, the case has no merit and the application filed by the petitioner/ plaintiff under Order 7, Rule 11 of CPC has been rightly dismissed by the learned Judge of the trial Court to hold that the fixed court fees has rightly been paid under Clause 17(iii) of the Second Schedule to the Court Fees Act. Hence, there appears to be no jurisdictional error or illegality committed by the learned Judge in passing the impugned order.

Accordingly, the petition being devoid of merit is hereby dismissed with a cost of Rs.20,000/- for the reason that a frivolous application was filed by the plaintiff before the trial court and a chance was taken before this court in this equally frivolous civil revision which was not even maintainable in the first place hence, such practice has to be deprecated. Out of Rs.20,000/-, the petitioner/ plaintiff shall pay an amount of Rs.5,000/- (Rupees Five Thousand Only) to the defendants before the trial Court on the next date of hearing and the remaining amount i.e. Rs. 15,000/- (Rupees Fifteen Thousand ) shall be deposited by the petitioner/ plaintiff within two weeks time in Army Central Welfare Funds with the Saving Account Number, old A/c No.020500101007721 and new A/c No. 520101236373338 of Corporation Bank, Chandni Chowk, Delhi so that amount can be utilized for a National Cause. The petitinoner/ plaintiff shall submit a receipt regarding the aforesaid deposit before the trial Court.

C.C. As per rules.