Allahabad High Court
Danish And Others vs Syed Shahenshah Husain Alias Syed ... on 22 April, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgment reserved on 22.03.2013)
(Judgment delivered on 22.04.2013)
Court No. - 4
Case :- WRIT - C No. - 11609 of 2013
Petitioner :- Danish And Others
Respondent :- Syed Shahenshah Husain Alias Syed Silas, C. Spear
Petitioner Counsel :- Bharat Prataap Singh
Respondent Counsel :- S.P. Singh
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the petitioners and Sri S.P. Singh, learned counsel for respondent, who has appeared through caveat.
Respondent has instituted O.S. No.1276 of 2009, Syed Shahenshah Husain Vs. Danish and others. Relief claimed in the suit is for declaration to the effect that the will claimed to have been executed on 11.01.2008 by Syed Wasi Jafar in favour of defendant No.1 be declared null and void. Relief of permanent prohibitory injunction has also been sought. Relief of mandatory injunction was also sought for delivery of possession to the plaintiff in case it was found that defendants were in possession. Defendants filed written statement and raised pleas of under valuation of the suit and insufficiency of court fees paid on the plaint. In para-15 of the plaint, Relief-(A) for declaration was valued at Rs.2 lacs and relief-(B) was also valued at Rs.2 lacs, total Rs.4 lacs. Issues were framed. Issues No.3 & 4 related to valuation and court fees. Additional Civil Judge (S.D.), Court No.1, Bulandshahar decided the said issues in favour of the plaintiff on 07.08.2012. The defendants petitioners had contended that valuation of the suit for the purposes of jurisdiction and court fees must be on the basis of market value of the property regarding which Will was executed and ad voleram court fees should have been paid. The trial court placed reliance upon Surhid Singh Vs. Randhir Singh, AIR 2010 SC 2807 holding that if the relief is for declaration of a deed to be void of which plaintiff is not executant/ purported to be executant, then court fees is to be paid in accordance with Section 7(IV)(C) of Court Fees Act and not Section 7(IV)(A). The issues were decided in favour of the plaintiff. Against the said order, defendants petitioners filed Civil Revision No.82 of 2012, which was dismissed on 09.11.2012, hence this writ petition.
The revisional court agreed with the petitioners that Surhid Singh (2010) authority of the Supreme Court was not applicable in U.P.
Learned counsel for the petitioners has cited an authority of the Supreme Court delivered after the decision of the revisional court judgment reported in Shailendra Bhardwaj and others Vs. Chandra Pal and others, 2013 (1) SCC 579 (delivered on 21.11.2012) in which the Supreme Court held that its earlier authority of Suhrid Singh @ Sardool Singh Vs. Randhir Singh others, 2010 (12) SCC 112 was confined to Punjab Court Fees Act, however as far as Court Fees Act as amended by U.P. is concerned, in a suit for declaring will and sale deed as void resulting in cancellation computation of court fees will be covered by Section 7(IV)(A) and not Article 17(II) of Court Fees Act even if no consequential relief is claimed under Section 7(IV)(A) amended by U.P. in 1938. Accordingly, the view of the lower revisional court is perfectly in accordance with law.
However following the judgment of the Supreme Court reported in Sri Ratnavaramaraja v. Smt. Vimla , AIR 1961 SC 1299 and A. Nawab Jhon Vs. B.N. Subrimaniyam, 2012 (117) RD 249 (SC) the lower revisional court held that defendants had no legal right to challenge the decision of the trial court on court fees. Accordingly, revision was dismissed.
I do not find any error in the view of the lower revisional court. The matter of court fees is in between the plaintiff and the State. Defendant has go no concern with it. The suit has been filed before Civil Judge (S.D.) whose upper jurisdiction is unlimited.
The writ petition is therefore dismissed.
Order Date :- 22.04.2013
NLY
