Santosh Kumar Chopra and Others vs State of M.P. and Others

Hon''ble Shri Justice N.K. Mody

Being aggrieved by the order dated 17/10/2011 passed by III Civil Judge class-II, Neemuch in civil suit No. 134-A/11 whereby the application filed by the petitioners. under Order VII Rule 11 CPC with a prayer that suit be dismissed, was dismissed, the present petition has been filed.

Short facts of the case are that respondent No. 2 filed a suit against the petitioners. on 16/8/2011 wherein it was prayed that gift deed dated 26/12/09 alleged to have been executed by respondent No. 2 in favour of petitioner No. 1 be declared as void. In the suit it was alleged that by the said gift deed, the agricultural land has been given by respondent No. 2 to the petitioner No. 1. It was alleged that respondent No. 2 has never executed the gift deed. It was alleged that gift deed does not bear the thumb impression of respondent No. 2. In the suit it was alleged that suit is valued as Rs. 1500/- for the purpose of declaration and Rs. 500/- for the purpose of injunction and fix court fee of Rs. 600/- was paid. After the notice, at the initial stage an application was filed by the petitioners. under Order VII Rule 11 CPC wherein it was alleged that since gift deed is of a sum of Rs. 8 Lacs, therefore valuation made by respondent No. 2 is not in accordance with the provisions of Suits Valuation Act. It was also alleged that since respondent No. 2 is party to the document, therefore respondent No. 2 be directed to correct the valuation and pay the advalorem court fee. After hearing the parties learned court below dismissed the application, against which the present petition has been filed.

Learned counsel for petitioners. submits that impugned order is illegal and deserves to be set aside. It is submitted that learned court below while passing the impugned order, has not at all applied its mind. It is submitted that undisputedly gift deed alleged to have been executed by respondent No. 2 is valued as Rs..8 Lacs, therefore there was no justification on the part of respondent No. 2 to value the suit as Rs. 1000/- only. It is submitted that suit is under valued which is affecting the jurisdiction as well. It is submitted that inspite of specific allegation made in the application, learned court below while dismissing the application has not considered this aspect of the case. So far as court fee is concerned, learned counsel submits that even if it is alleged that document was not executed by the party concerned, then too, since respondent No. 2 is party to the document therefore ad valorem court fee ought to have been paid. It is submitted that since valuation is required to be made for the purpose of jurisdiction and court fee, therefore valuation ought to have been Rs. 8 Lacs and advalorem court fee ought to have been paid. For this contention, reliance is placed on a decision in the matter of Ambika Prasad Vs. Shri Ram Shiromani, 2011(3) MPLJ 184 wherein in a case where suit is for declaration of the sale deed by plaintiff No. 1 as void alleging that it was executed by playing fraud and misrepresentation, Divisional Bench of this Court has held that relief claimed implies a relief for cancellation of sale deed, hence plaintiffs have to pay ad valorem Court fee on the consideration stated in the sale deed. It is submitted that petition be allowed and impugned order be set aside.

Learned counsel for respondent No. 2 submits that application is nothing but delaying tactics to avoid the written statement. It is submitted that since allegation of respondent NO. 2 in the plaint is that alleged gift deed does not bear the signatures/thumb impression of respondent No. 2, therefore by no stretch of imagination it can be said that respondent NO. 2 was party to the document. It is submitted that since document is void, therefore fix court fee is enough. It is submitted that petition has no merits and same be dismissed.

In the plaint respondent has challenged the validity of the gift deed dated 26/12/09. Pleadings in this regard is stated in Para 11 & 15, which reads as under:

In the matter of Manzoor Ahmed Vs. Jaggi Bai, 2010(I) MPJR 8 Divisonal Bench of this Court has held that the main question for consideration is whether ad valorem Court fees is required to be paid. Document is shown to be void not voidable. Plaintiff has averred that she was never told about the sale deed which has been obtained by playing fraud. She never intended to execute the sale deed, she wanted to obtain the loan and taking the advantage of her advanced age and disability, sale deed was obtained. No consideration was paid. The averments made ini the plaint indicate that document is shown to be void not voidable. There is difference in incident of payment of Court fees in case document is voidable at the instance of executant ad valorem Court fees is required to be paid, not in the case of void document in such cases injunction which has been prayed flows from the relief of declaration. In the matter of Sunil Radhelia Vs. Awadh Narayan, 2010(III) MPJR (FB) 412 wherein in the relief clause, the plaintff sought a declaration that he be declared to be entitled to receive an amount of Rs. 14,80,000/- as the detained salary from the defendant No. 1. He also claimed a relief that the agreement dated 26/06/2000, which was executed for an amount of Rs..3,45,000/- be declared as null and void, Full Bench of this Court has held that 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. In the matter of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, in a suit for declaration that sale deed executed by plaintiff''s father is null and void and for joint possession, Hon''ble Apex Court held that it is not a suit for cancellation of sale deed, hence Court-fee need not be paid on sale consideration mentioned in sale deeds.

From perusal of the record it is evident that the case of the respondent No. 2 is that he is not the executent of the gift deed dated 26/12/09. Further case of respondent No. 2 is that the petitioners have prepared a forged document, which does not bear his thumb impression. In the matter of Ambika Prasad (Supra) the plaintiff was executent of the document and the case of the plaintiff was that the document was got executed by playing fraud and misrepresentation, therefore, this case has no application in the present case. In the matter of Manzoor Ahmed (Supra) also the case of the plaintiff was that she never intended to executed the sale deed, she wanted to obtain loan and taking the advantage of her advance age and disability sale deed was obtained and in the circumstances the Divisional Bench of this Court has held that void document does not require payment of ad valorem Court fee.

Keeping in view the principle laid down by the Full Bench of this Court in the matter of Sunil Radhelia (Supra) and also keeping in view the facts stated in the plaint wherein it is alleged that the respondent No. 1 is not party to the document, as it does not bear the thumb impression of respondent No. 1, this Court is of the view that the learned Court below committed no error in holding that no ad valorem Court fee is required. Since the respondent No. 1 is not party to the document as alleged, therefore, also respondent No. 1 is not required to value the suit as per valuation of the document. Hence, petition filed by the petitioner has no merits and the same stands dismissed.

No order as to costs.