Ramsiya vs Ramkatori and Others

Hon. Shri Justice Brij Kishore Dube

This Civil Revision u/s 115 of CPC is directed by the revisionist/defendant No. 1 against the impugned order dated 1.3.12 passed by learned I Civil Judge Class I, Bhind in Civil Suit No. 3A/2012, whereby the application filed by the defendant No. 1 under Order 7 Rule 11 of CPC to reject the plaint on the ground that adequate Court fee was not paid has been rejected. The respondent No. 1/plaintiff has filed a suit for declaration of title, confirmation of possession and permanent injunction. There is also a prayer to declare the sale deed dated 24.10.11 as null and void. The relief sought by the plaintiff in the plaint runs as under:-

The plaintiff has pleaded that she is bhumi swami of the land in question. Her age is 80 years. She is blind, deaf and disabled. She wanted to get pension under the Nirashrit Avam Garib Mahilayo Ke Liye Pension Yojna. She was assured by the defendant No. 1 that after completing the necessary formalities, she will get pension. On his assurance, she along with defendant No. 1 went to the office of Collector, Bhind whereat he got executed the sale deed with regard to the disputed land by playing fraud and mis-representation. She has never sold the land and the consideration of the land as mentioned in the sale deed Rs. 9,44,500/- has not been received by her and she has also not handed over the possession to the defendant No. 1.

In the application filed under Order 7 Rule 11 of CPC, it was submitted by the defendant No. 1 that the plaintiff has to pay ad valorem Court fee on the consideration as mentioned in the sale deed i.e., Rs. 9,44,500/-. Since, the proper Court fee has not been paid, therefore, the suit is liable to be dismissed. The Trial Court has rejected the said application by the impugned order.

Shri N.K. Gupta, learned counsel appearing on behalf of the revisionist has submitted that plaintiff has valued the suit for being declared the sale deed dated 24.10.2011 as null and void as Rs. 9,44,500/-, therefore, the plaintiff is required to pay the ad valorem Court fee on the said valuation. It is further submitted that the alleged sale deed was executed by the plaintiff by putting her thumb impression on it, therefore, it is necessary to seek consequential relief of cancellation of sale deed as the plaintiff is a party to the sale deed, thus, she was bound to make the payment of ad valorem Court fee. He has referred to the following decisions in support of his contention:-

(i) Ambika Prasad and others v. Shri Ram Shiromani @ Chandrika Prasad Dwivedi and another, 2011(3) MPLJ 184,

(ii) Shyamachran Paul and another v. Roopali Promoters and Construction (M/s.) and others, 2009 (3) MPHT 113 (DB), and

(iii) Israt Jahan (Smt.) v. Rajia Begum and others, 2010(1) MPHT 338 (DB)

Learned counsel appearing on behalf of respondent No. 6/State supported the contention of the learned counsel for the revisionist.

Shri Raghvendra Dixit, learned counsel appearing on behalf of respondents No. 1 to 5 has supported the impugned order and submitted that relief of injunction was not a consequential relief, it was prayed because of settled possession of the plaintiff. Since, the alleged sale deed is a null and void document, therefore, it is not necessary to seek the relief of cancellation of document, therefore, ad valorem Court fee was not required to be paid on the valuation of the sale deed. He has relied upon the decisions of this Court in the case of Sunil Radhelia and others v. Awadh Narayan and others, 2010(4) MPHT, 477 (FB) & Manzoor Ahmed v. Jaggi Bai and others, 2009(4) MPLJ, 182 (DB).

The question which arises for consideration is as to what should be the basis of determination or computation of Court fee? In this respect, two basic propositions were laid down by the Apex Court in S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, , firstly: the court fees payable on a plaint has to be decided in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit, and secondly: all the material allegations contained in the plaint should be construed and taken as a whole.

Two more propositions in this respect were further laid down by the Apex Court in Shamsher Singh Vs. Rajinder Prashad and Others, , firstly: the question whether the plaintiff''s suit will have to fail for failure to ask for consequential relief is of no concern to the court at that stage and secondly: the court should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for.

Thus, keeping in view the aforesaid parameters of law, the Court is required to determine what is the actual relief claimed by the plaintiff and whether there is a consequential relief in form of further relief or otherwise hidden behind the apparent relief claimed in the matter.

Before proceeding further, I would like to refer to some decisions. The Apex Court while considering the difference between void and voidable transaction in Ningawwa Vs. Byrappa and Others, , held that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. In Ranganayakamma and Another Vs. K.S. Prakash (D) by L.Rs. and Others, , the Supreme Court held that voidable transactions are required to be avoided while void transactions are not required to be avoided.

In the case of Manzoor Ahmed (supra), it has been held by a Division Bench of this Court that it depends upon the averments made in each case in the plaint whether ad valorem Court fees 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.

In the case of Shyamacharan Paul (supra), a Division Bench of this Court has held that the plaintiffs being parties to the sale deed, are prima-facie bound by it, and the relief of declaration simplicitor is not available. The declaration claimed by the plaintiffs necessarily involved a prayer for consequential relief of cancellation of sale deed, therefore, ad valorem Court fee is payable u/s 7 (iv) (c) of the Court Fees Act.

The Full Bench in Sunil Radhelia (supra) considered the question and held that when the plaintiff makes an allegation that the instrument is void and hence not binding on him and a declaration simplicitor is prayed, then he is not required to pay ad valorem Court fee and also 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.

A Division Bench of this Court in the case of Ambika Prasad (supra), expressed the view :-

The question required to be addressed in this petition is that whether the plaintiffs are liable to pay ad valorem Court fee on the sale consideration stated in the sale deed of which plaintiff No. 1 is the executant when they have made an allegation in the plaint that it is void.

In Suhrid Singh vs. Randhir Singh, 2010 AIR SCW 3308, the Supreme Court dealt with an identical issue and resolved the same by giving an illustration of two brothers. We find it useful to reproduce the relevant portion of Para 6 of the order. It is 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 nonest/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.

Thus, by the above illustration of ''A'' and ''B'' brothers the Supreme Court has answered the issue in a very simple manner that where the executant of the sale deed wants it to be annulled, he has to seek cancellation of that deed for which ad valorem Court fee on the consideration stated in the sale deed is payable.

The Supreme Court earlier in Government of Orissa Vs. Ashok Transport Agency and Others, explained the distinction between the meaning void and voidable acts. In this case, it held that one type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same, no declaration is necessary as law does not take any notice of the same and they can be disregarded in collateral proceeding. According to the Supreme Court, the other type of void act like transaction against a minor without being represented by a next friend is a good transaction against the whole world but if the minor decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding, the transaction becomes void from the very beginning. In this case, the Supreme Court referred to yet another type of void act which may be not a nullity but for avoiding the same a declaration has to be made. It observed that voidable act is that which is a good act unless avoided for instance if a suit is filed for declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it

In the case at hand, plaintiff No. 1 was admittedly an executant of the sale deed sought to be declared as void. The sale deed also bears his thumb impression and the sale consideration is clearly mentioned therein. The plaintiffs in their suit for declaration have prayed that the sale deed be declared as void by alleging that it was executed by playing fraud and misrepresentation. The relief claimed implies a relief for cancellation of sale deed because plaintiff No. 1 (now dead) was an executant of the same. The sale deed, in our considered opinion, is voidable as the apparent state of affairs is a real state of affairs and the plaintiffs who have alleged otherwise, are obliged to prove it as void. The plaintiffs, therefore have to pay ad valorem Court fee on the consideration stated in the sale deed. As held by the Supreme Court in Suhrid Singh (supra), had plaintiff No. 1 been a non-executant the plaintiffs could have merely paid a fixed Court fee provided in Entry 17 (iii of Second Schedule of the Act.

It is true that in Sunil Radhelia vs. Awadh Narayan, 2010(4) MPLJ (FB) 431, the Full Bench has held that ad valorem Court fee is not payable when the plaintiff makes an allegation that the instrument is void and not binding on him even if he be the executant of the document. But it is equally true that the decision of the Supreme Court in Suhrid Singh (supra), was not placed before the Full Bench and, therefore, it is not referred therein. Had the decision of Suhrid Singh (supra) been brought to the notice of the Judges of Full Bench, in all probability they too would have taken the same view which we have taken.

In the present case, the plaintiff has averred in the plaint that she was never told about the sale deed which has been obtained by playing fraud and mis-representation by the defendant No. 1. She was never intended to execute the sale deed. She wanted to get pension under the Nirashrit Avam Garib Mahilayo Ke Liye Pension Yojna. But, taking the advantage of her advanced age and disability, defendant No. 1 got executed the sale deed by obtaining her thumb impression on it by misrepresentation. No consideration was paid to her. The averments made in the plaint indicate that she has executed the alleged sale deed by putting her thumb impression on it. Thus, the plaintiff admittedly an executant of the sale deed dated 24.10.2011 sought to be declared as null and void. The sale deed bears her thumb impression and the sale consideration is clearly mentioned therein. The plaintiff prayed that the sale deed be declared as null and void by averring that it was executed by playing fraud and misrepresentation. The relief claimed implies a relief for cancellation of sale deed. The averments made in the plaint coupled with the relief sought by the plaintiff indicate that the document is shown to be voidable, not void.

From the aforesaid discussion, settled legal position and factual matrix of the case, the impugned order as passed by the Trial Court is not sustainable. The same is hereby set-aside. Plaintiff is directed to pay ad valorem Court fee on the valuation of the sale deed. Trial Court shall grant reasonable time to the plaintiff to pay the deficit Court fee before proceeding further on merits, in accordance with law. The revision stands allowed in part in the aforesaid manner. No order as to costs.