Smt. Aradhana Gupta and Others vs Pooran Singh and Others

Rohit Arya, J.—The instant revision is directed against the order dated 25.11.2010 passed in Civil Suit No. 1-A/2010. By the said order the preliminary objection raised by the applicant No. 1- defendant to the effect that in view of the plaint allegations and prayer clause therein that the sale deed executed on 6.6.2009 be declared null and void. The plaintiff non-applicant was required to pay ad voleram court fee in terms of Section 7(iv)(c) of Court Fee Act on the basis of value of sale deed amounting to Rs. 1,05,000/- instead of fixed Court fee of Rs. 500/- affixed for the relief claimed. In view of the aforesaid, it was further stated that the Court under the circumstance lacks pecuniary jurisdiction. Hence, the suit was not maintainable before the said Court. This aforesaid objection has come in the background of the fact that plaintiff/non-applicant had executed a registered power of attorney dated 25/10/2008 in favour of defendant No. 2/applicant, for the purpose of executing the sale deed on his behalf in favour of applicant-defendant No. 1 and the sale deed was executed on 6.6.2009. The plaintiff/non-applicant has filed a suit for declaration of title, permanent injunction and for cancellation of the sale deed in respect of suit. According to the applicant - defendant suit was arbitrarily valued by the plaintiff for Rs. 40,000/- and affixed Court fee Rs. 500/-. As such, ad voleram Court fee u/s 7(iv)(c) of the Court fee Act was required to be paid on the value of land as Rs. 1,05,000/-

In response to the aforesaid objection, non-applicant-plaintiff submitted that the power of attorney was forged and obtained by fraudulent means. Hence, he was not a party to the sale deed. As such, he was not required to affix the Court fee u/s 7(iv)(c) of the Court Fee Act. The suit was properly valued and the Court had pecuniary jurisdiction to entertain the suit.

The trial Court has rejected the objection and held that since non-applicant plaintiff has disputed and denied the execution of registered power of attorney. He is not a party to the sale deed and, therefore, not required to pay ad voleram court fee in terms of Section 7(iv)(c) for the relief of declaration, permanent injunction and cancellation of sale deed.

Being aggrieved by the said order, present revision is directed questioning the legality, validity and propriety of the order impugned. It is inter alia contended that admittedly the power attorney dated 25.10.2008 is a registered power of attorney executed by the plaintiff/non-applicant No. 1 in favour of applicant No. 2/defendant authorizing to execute the sale deed on his behalf in favour of the applicant No. 1. Learned counsel contended that there is presumption that registered power of attorney was validly executed, unless of-course such presumption is displaced by leading evidence to the contrary. Onus is upon the person alleging or disputing the factum of execution of registered power of attorney. The learned counsel relied upon the judgment of the Supreme Court reported in the case of Prem Singh and Others Vs. Birbal and Others, the Supreme Court has held as under:

There is presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent 1 has not been able to rebut the said presumption.

Further aforesaid proposition the Supreme Court has relied upon the judgment reported in Prem Singh and Others Vs. Birbal and Others, Ningawwa Vs. Byrappa and Others, .

The contention of the applicant finds full support from the aforesaid enunciation of law. Under circumstance the contention of the applicant, that non-applicant/plaintiff is a party to the sale deed and if he wants to avoid the same, he is liable to pay ad-voleram court fee u/s 7(iv)(c), has substance.

On the other hand, the non-applicant-plaintiff at the first instance referring to the Order 14 Rule 2 of CPC, submitted that the Court below ought not to have passed the impugned order as on the preliminary objection and issue and should have answered the issue after evidence was recorded. Such criticism of the impugned order is of no consequence as the plaintiff non-applicant failed to demonstrate as to whether before the trial Court such plea was raised. The learned counsel in the second breath supported the order impugned. A novel preposition was advanced that even if the power of attorney was executed, power of attorney did not authorize the applicant defendant No. 2 to execute the sale deed on behalf of plaintiff non-applicant. This argument on the face of it is without any substance and belied on reading of the relevant power of attorney:

That apart, there is nothing on record to suggest that non-applicant plaintiff at any point of time instituted any criminal proceeding or lodged any FIR against the applicant defendant No. 2 on the allegation of having played fraud upon the plaintiff and fraudulently obtained the power of attorney.

After hearing the counsels for both parties, this Court is of the opinion that controversy involved is no more res integra. As regards, basis of determination or computation of Court fee two basic propositions were laid down by the Supreme Court in the case of Cathappa Chettiaar Vs. Ramanathan Chettaar (AIR 158 SC 245), firstly; the Court fee payable on 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 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. Besides, Supreme Court in the case of Shamsher Singh Vs. Rajinder Prashad and Others, has further laid down the principle in that behalf viz.; 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 the stand in the way of Court looking at the substance of the relief asked for.

Bearing in mind the aforesaid settled principle of law if plaint allegation and relief sought are perused carefully, it shall lead to irresistible conclusion viz.; (1) the sale deed has been executed on the strength of registered power of attorney (2) relief claimed is of declaration of sale deed is null and void and permanent injunction and cancellation of sale deed. There shall be presumption that the power of attorney dated 6.6.2009 was duly executed by the plaintiff non-applicant in favour of applicant-defendant No. 2 by virtue of the fact that the power of attorney is registered instrument. Unless of-course, such presumption is misplaced by leading evidence to the contrary and burden is discharged by the non-applicant/plaintiff. In view of the aforesaid, prima facie the plaintiff is a party to the sale deed. The sale deed executed on 6.6.2009 under circumstance not void and that may be voidable. To avoid the sale deed the plaintiff is required to pay affix ad voleram Court fee u/s 7(iv)(c) of the Court fee Act. The ratio of decisions on the aforesaid preposition decided in the following cases, 2010 (12) SCC, 112, (2) Ramsiya Vs. Ramkatori and Others, and (5) 2010 (1) MPHT 338 (6) 2006 (5) SCC 353 and 2009 (12) SCC 101 support the conclusion drawn by this Court. Hence, the trial Court has committed error of law and fact while passing the impugned order. The impugned order is set aside. Plaintiff is liable to pay ad voleram Court fee on the value of sale deed in term of Section 7(iv)(c) of the Court Fee Act if he wants to avoid the sale deed dated 6.6.2009.

Accordingly, revision is allowed.