HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 RESERVED Case :- FIRST APPEAL FROM ORDER No. - 987 of 2015 Appellant :- Shri Mahrab And Anr. Respondent :- Shri Hullan Khan And 2 Others Counsel for Appellant :- R.C. Pal Hon'ble Krishna Murari,J.
Hon'ble Pratyush Kumar,J.
Heard Sri R.C. Pal, learned counsel for the appellants.
The present appeal, filed under Section 6 A of the Court Fees Act, 1870, is directed against the judgment and order dated 24th February, 2015, passed by the Additional Civil Judge (Senior Division), Court no.2, Aligarh in Original Suit No.1775 of 2013 (Mehrab and another Vs. Hullan Khan and others), whereby the appellants/plaintiffs (hereinafter referred as the 'appellants'), have been directed to pay ad- valorem court fees.
On behalf of the appellants, validity of the impugned judgment and order have been challenged on the ground inter-alia that the court below has misread the plaint illegally and relied on the case law not applicable to the facts of the present case. The suit has been properly valued and court fees have been paid accordingly. Thus, the impugned judgment and order are illegal and without jurisdiction.
The said original suit was filed by the appellants on the allegation that they were transferable bhumidhar, owner in possession of the property in dispute, details whereof have been given at the foot of the plaint and used by the appellants for the residential purposes. The appellants have inherited the property in suit from their younger brother Mahoob Ali, who died in the year 2001 issueless. The respondent nos. 1 and 2 fraudulently and dishonestly got executed the sale deed dated 27th September, 2013 by respondent no.3. Now they want to grab the property in suit. Request has been made to declare the said sale deed to be void and by way of prohibitory injunction, respondents be restrained from interfering with the peaceful possession, use and occupation of the property in dispute by the appellants.
The suit was contested and on the basis of the pleadings issues were framed and the following issue was decided as preliminary issue:-
Preliminary Issue no.5 - Whether suit is under valued and paid court fees is inadequate ?
After hearing the parties, the court below has observed that the present suit is for declaration and permanent injunction, suit has been valued on the basis of the value of the property in suit, as mentioned in the said sale deed. The learned civil judge has held that suit has been correctly valued and in reference to the relief of prohibitory injunction, proper court fees have been paid. However, in reference to first relief regarding cancellation of sale deed, the appellants have to pay ad valorem court fees thereafter the appellants have been directed to pay ad valorem court fees.
Learned counsel for the appellants has argued that the appellants are owner in possession. The relief sought for regarding the said sale deed to be null, is merely an incidental relief. The appellants are required to pay the court fees according to the plaint averments.
Learned counsel for the appellants has taken us through the plaint to emphasis the fact that in khatauni they are entered as bhumidhar. According to plaint averments they are in possession and the said sale deed is fictitious. On the basis of these averments, he submits that the trial court has erred in applying provisions of Section 7 (iv-A) of the Court Fees Act, 1870, whereas the appellants are entitled to pay court fees for declaration in accordance with Article 17 Schedule (ii) of the Court Fees Act, 1870.
In support of these arguments he has referred the following cases:-
(1) Smt.Shefali Roy Vs. Hero Jaswant Dass, 1992 AWC, 1000 (DB).
In this case, observations of this Court made in para nos. 21 to 23 are relevant for the present purpose. They are quoted as under:-
"21. No doubt the aforesaid provision is emphatic dealing with the point in issue. However, words used therein "other document securing money or other property having such value" require interpretation so as to find out pith and substance to this provision, that is what is the intention of legislature in putting the word "securing". This word "securing" is not only related to the money part of the decree but other property as well as used in this provision, and therefore word "securing" relates to recovery or possession of the other property, otherwise putting this word "securing" in this provision becomes meaningless. As such where money part or any other property is claimed by way of securing it, the plaintiff is certainly required to pay ad valorem Court-fee i.e. 1/5th of the value of subject-matter of the property. But where no relief is claimed in terms of the above referred provision, then certainly payment of Court-fee shall be governed under Art. 17, Schedule II of the Court-fees Act.
22. In the instance case no relief is claimed in terms of the above referred provision by the plaitniff, but simply a declaration is sought that the alleged sale deed be declared null and void.
23. The payment of Court-fee depends upon the averments of the plaint and the relief claimed and not on the averments of the written statement. A suit for mere declaration that the plaintiff is owner of the property in suit as claimed by the plaintiff in the instant case and incidentally claiming a declaration that the alleged sale deed be declared null and void, does not fall within the ambit of Section 7(iv-A) (State of U.P. Amendment). See State of U.P. v. Ramkrishan Burman, AIR 1971 SC 87 : (1971 All LJ 1), wherein considering this State of U.P. Amendment their Lordships of the Apex Court ruled that in a suit for mere declaration that the plaintiff is owner of certain properties, this U.P. Amendment is not attracted for the purposes of payment of Court-fee. According to their Lordships this U.P. Amendment relates to a decree for recovery of money or other property. It however, does not include a decree concerning title to money or other property, and, hence where mere declaration is involved, the payment of Court-fee is governed under Art. 17, Schedule II of the Court-fees Act. In view of the decision in Ramkrishan Burman's case (supra), we are of the opinion that the plaintiff has paid proper Court-fee."
(2) Basant Kumar Mata Nehliya and another Vs. Chowdhary Ujjair and others, 2011 (6) AWC 6257 (LB).
Paras 9 to 12 contained the discussions which according to the learned counsel for the appellants support their case. Relevant paras quoted as under:-
9. Attention of this court has been invited towards the proviso of section 7 (iv-B) of the Act and one other case relied upon by the parties counsel reported in [2005 (61) ALR 853 Smt. Veena Bahl (dead) through LRs. and another vs. Vishnu Kumar and others. In the case of Veena Bahl, Smt. Surendra Bala Devi was not in pos session of the property. A prayer for permanent injunction was made restraining the defendants from alienating the property. Under these circumstances, the division bench of this court directed to pay ad valorem court fee holding that the provision of section 7 (iv) (a) of the Court Fees Act shall be applicable. Other case rejied upon by the parties' counsel is reported in [2006 (24) LCD 920 :2006 (1) ARC 717] Arun Kumar Tiwari vs. Smt. Deepa Sharma and others. In the case of Deepa Sharma, a declaratory decree was sought by the plaintiff with the prayer that the sale deed executed by defendant no. 1 in favour of defendant no. 5 by declared as illegal, ineffective and inoperative. In such circumstances, the division bench held that where the relief of injunction is consequential to the relief of declaration, ad valorem court fee has to be paid on entire valuation of suit property and Article 17 of Schedule 2 of the Court Fees Act shall not be applicable.
10. In the present case, the declaration is not based on resciding of any document or cancellation of sale deed or any other alike instrument, not possession has been claimed. Plaintiff is in possession of the property. The provision contained in Section 7 (iv) (a) should be read jointly alongwith provision contained in Section 7 (iv-A) read with Section 7 (iv-B) and the provisos contained therein.? It is settled propo sition of law that while interpreting statutory provision, it should not be read in piece meal, but it should be read section by section, line by line and word by word. The provision contained in the section should be read in such manner not to negate the effect of other provision vide 2002 (4) SCC297 Grasim Industries Limited v. Col lector of Customs; 2003 SCC (1) 410 Easland Combines v. CCE; 2006 (5) SCC 745 A. N. Roy v. Suresh Sham Singh and 2007 (10) SCC 528 Deewan Singh v. Rajendra Prasad Ardevi. A suit for declaration based on admitted evidence with consequential relief of injunction may not be frustrated for want of court fee.
11.The aforesaid proposition of law is strengthened from a case reported in 1998 (1) AWC 573:1998 (1) ARC 360 Anwarul Haq vs. 1st Additional District Judge. Where a suit is filed for cancellation of sale deed on the ground of fraud, the court held that the court fee is payable under Section 7 (iv-A) and not under Article 17, Schedule 2 of the Act. In the case reported in 1992 (1) ARC 392:1992 (2) AWC 1000 Smt. Shefali Roy vs. Hero Jaswant Das, it was held that in a declaratory decree claimed by the plaintiff, the court fee payable shall be under Article 17 of Schedule 2.
12.In the present case, plaintiff-petitioner is in possession of property. Declaration of title and injunction is based on entry in revenue records and possession. Hence court fees does not seem to be payable ad valorem.
Learned trial court has been failed to appreciate the law and full bench judgment has not been considered in its letter and spirit in right perspective.
Accordingly, the appeal deserves to be allowed. The appeal is allowed. The order dated 20.5.2009 passed by the Civil Judge (Senior Division) Bahraich is set aside. Appeal allowed. Cost easy.
(3) Shailendra Bhardwaj and others Vs. Chandra Pal and another, (2013) 1 Supreme Court Cases, 579.
Learned counsel for the appellants after taking us through para 2 of the judgment has argued that the view taken by the Hon'ble Apex Court in this case also supports his argument.
It is an admitted legal position that the plaintiff is required to pay court fees in terms of the relief sought in the plaint as held in the judgement of S.RM.AR.S.SP.Stahappa Chettiar Vs. S.RM. AR.RM. Ramanathan, A.I.R. 1958, SC 245.
We have already noticed the facts stated in the plaint and the reliefs sought therein. The principle laid down in Smt.Shefali Roy's case (supra) is not applicable in the present case due to the reason that in that case only relief for declaration was sought whereas in the present case, in addition to declaration, relief of prohibitory injunction has also been prayed for.
In Basant Kumar's case (supra), the plaintiff had requested for declaration of their rights on the basis of entries in mutation records, he did not asked the sale deed to be adjudged void. For this reason this case also is of no help to the appellants.
In Shailendra Bhardwaj's case (supra), the ratio laid down finds place in paras 8 to 10 of the judgment. They are quoted hereunder:-
"8. On comparing the above mentioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.
9.The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the court fees have to be commuted according to the value of the subject matter and the trial Court as well as the High Court have correctly held so.
10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a case in which this Court was dealing with Section 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case."
The ratio laid down in Shailendra Bhardwaj's case (supra) is not without other precedents on this point. In the following cases, the same principle has been expressed.
(1) Kailash Chand Vs. Vth Additional Civil Judge Meerut 1999 (90) R.D. 100 (Alld).
(2) Smt.Veena Bhal vs. Vishnu Kumar 2005(2) R.D. 496.
(3) Indra Mohini Vs. District Judge, R.D.741 (Utt).
(4) Bibbi vs. Shugan Chand, A.I.R. 1968 Alld, 216 (Full Bench).
Now the only question remains whether it is necessary for the appellants to seek the relief of declaration for adjudging the said sale deed to be void. The first indication we find that in the plaint in para 5 ('ra') the sale deed has been alleged to be voidable.
It is also well settled that voidable deed requires to be cancelled or adjudged to be void. More so the Hon'ble Apex Court in Smt.Ramti Devi vs. Union of India 1995 Allahabad, Civil Judgment, 99 (S.C.) has held that until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties.
While these two points taking into consideration we have no hesitation to hold that in the present case, it is necessary for the appellants to seek declaration for adjudging the said sale deed to be void otherwise no effective relief could be granted to the appellants to protect their rights.
In view of above, the grounds on which the validity of the impugned judgment and order have been challenged appear to be without substance and devoid of any merit. The arguments advanced on behalf of the appellants are rejected.
The appeal lacks merit and is, accordingly, dismissed in limine.
Order Date :- May 8, 2015.
SKD