Pepali Kondaiah, vs Veeramallu Venkata Ramanamma,
2022 Latest Caselaw 5521 AP

     IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

            THE HON'BLE SRI JUSTICE NINALA JAYASURYA

               CIVIL REVISION PETITION No.95 of 2022

Between:-

1) Pepali Kondaiah
2) Pepali Kiran Kumar                                          ....            Petitioners
                                          And

Veeramallu Venkata Ramanama                                    ....           Respondent

Counsel for the Petitioners                    :       Mr.O.Manohar Reddy,
                                                       Learned Senior Counsel

Counsel for the Respondent                     :       Mrs.M.Siva Jyothi

ORDER:

The present Revision Petition has been filed against an Order dated

14.10.2020 in I.A.No.206 of 2020 in O.S.No.32 of 2020 on the file of the

Additional Junior Civil Judge, Kadapa, YSR Kadapa District.

2. Heard Mr.O.Manohar Reddy, learned counsel for the petitioners and

Mrs.M.Siva Jothi, learned counsel for the respondent.

3. The petitioners are the defendants in the above referred suit. The

respondent/plaintiff filed a suit against the petitioners seeking the

following reliefs:-

a) Declare the registered gift deed dated 02.06.2020 which is registered as Doc.No.2435/2020 by Joint Sub-Registrar, Kadapa Rural, executed by the 1st defendant in favour of the 2nd defendant as null and void;

b) Grant permanent injunction restraining the 2nd defendant and his men from constructing a house in the plaint schedule property;

c) Direct the defendants to pay costs of the suit to the plaintiffs; and

d) Grant such other or further reliefs as the Hon'ble Court deems fit and proper under the circumstances of the case;

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4. In the plaint, the value of the suit for the purpose of Court Fees and

jurisdiction is mentioned as follows:-

"The suit is filed for declaration of the registered gift deed dated 2.6.2020 which is registered as document No.2435/2020 which is executed by the first defendant in favour of the 2nd defendant as null and void. The Value of the said gift deed is Rs.27,90,000/- on which an ad valorem Court Fee of Rs.30,426/- is paid U/s 24(d) of A.P.C.F and S.V. Act.

Since the suit is also filed for permanent injunction restraining nd the 2 defendant from making construction of the building in the plaint schedule property which is incapable of value and the said relief is notionally valued at Rs.50,000/- and a Court Fee of Rs.2,386/- is paid U/s 26(c) of A.P.C.F and S.V. Act."

5. The petitioners/defendants filed I.A.No.206 of 2020 under Order

VII, Rule 11 of CPC R/w Sections 151, 141 and 94(e) of CPC seeking to

reject the plaint at the threshold itself without going into any other

aspects. In the affidavit filed in support of the said I.A, it was inter alia

contended that the respondent/plaintiff had taken shelter under Section

24(d) of A.P.C.F & S.V. Act, 1956 and valued the same at Rs.27,90,000/-

by adopting the market value of the property shown in the Registered Gift

Deed and so far as the relief of permanent injunction, it was valued at

Rs.50,000/- and Court Fee was paid under Section 26(c) of A.P.C.F &

S.V. Act, 1956 and that the said reliefs in the plaint are not properly

valued in terms of Section 24(d) and 26(e) of A.P.C.F & S.V. Act.

6. It was further alleged that the respondent/plaintiff played deliberate

fraud on the Hon'ble Court, misused the provisions of Law and got the

plaint numbered. While pleading that the plaint is liable to be rejected at

the threshold, it was further contended that the respondent/plaintiff had

absolutely no right to adopt market value that was mentioned in the

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Registered Gift Deed and ought to have followed the market value of the

plaint schedule property contained in the records of the Sub-Registrar at

Kadapa as on the date of filing of the suit. Regarding the relief of

permanent injunction is concerned, it was pleaded that the same was

under-valued and the Court Fees ought to have been paid on the market

value of property i.e., Rs.30,01,000/- as per the Valuation Certificate

obtained by the petitioners and that the respondent had no right to

notionally value the relief in respect of permanent injunction. It was also

pleaded that the suit is not maintainable in view of pendency of

O.S.No.269 of 2019 on the file of the Principal Junior Civil Judge, Kadapa

wherein the relief of partition in respect of the same subject matter

property was pending and hit by provisions of Order II, Rule 2 of CPC.

7. The respondent/plaintiff filed counter, inter alia, denying the

allegations. With regard to valuation of the suit is concerned, it was

pleaded that during the pendency of O.S.No.269 of 2019 the

1st petitioner/1st defendant clandestinely suppressing the pendency of the

suit executed a nominal Gift Deed in favour of the 2nd petitioner/

2nd defendant without having any manner of right and as the

2nd petitioner/2nd defendant was making construction of the suit schedule

property, the respondent/plaintiff filed the present suit for cancellation of

the said Gift Deed and also for grant of permanent injunction. While

asserting that as per the Valuation Certificate issued by the Sub-Registrar,

Kadapa she has to pay less Court Fees than the Court Fee paid by her,

it was stated that the Court Fee basing on the present prevailing market

value of the suit schedule property was paid. Stating that the ingredients

of Order VII, Rule 11 of CPC are not attracted to the facts of the case on

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hand, the respondent/plaintiff prayed for dismissal of the I.A. The learned

Trial Court after due consideration of the rival contentions by an Order

dated 14.10.2020 dismissed the application filed by the

petitioners/defendants. Aggrieved by the same, the present Revision

Petition came to be filed.

8. The learned counsel for the petitioner inter alia submits that the

impugned Order of the learned Trial Court is vitiated by material

irregularity and failure to exercise the jurisdiction vested in it. He submits

that the respondent/plaintiff is a third party to the Gift Deed executed by

the 1st petitioner/1st defendant in favour of the 2nd petitioner/2nd defendant

and the suit as filed by the respondent/plaintiff for cancellation of Sale

Deed without seeking declaration of title is not maintainable. While

drawing the attention of this Court to the provisions of Specific Relief Act,

the learned counsel would submit that the respondent/plaintiff has to file

suit for declaration under Section 34 of the Specific Relief Act, as a third

party to a document cannot file suit under Section 31 of the said Act.

He submits that the Court Fees paid by the respondent/plaintiff is not

correct and if cancellation of Gift Deed is sought for, the Court Fees is to

be paid on market value and with a view to avoid the same, the

respondent/plaintiff had sought for declaration that the Gift Deed is null

and void and the same cannot be countenanced. The learned counsel also

submits that in so far as the plea taken before the Trial Court with

reference to Order II, Rule 2 of CPC is not pressed. In any event, the

learned counsel submits that the Trial Court ought to have allowed the

application seeking rejection of plaint by giving a strict interpretation to

the provisions of the A.P.C.F & S.V. Act.

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9. On the other hand, the learned counsel for the respondent/plaintiff

inter alia contends that the suit was valued on the basis of the averments

in the plaint and the Court Fee is accordingly paid as per the A.P.C.F &

S.V. Act. She further submits that the respondent/plaintiff is not seeking

any rights in respect of the suit schedule property and therefore the suit is

not filed under Section 34 of the Specific Relief Act. The learned counsel

further submits that the respondent/plaintiff is not seeking declaration of

right and therefore the suit filed under Section 31 of the Specific Relief Act

is maintainable. The learned counsel further elaborates that the

respondent/plaintiff is seeking a declaration that the document/Gift Deed

is null and void and is not seeking cancellation of the same. Therefore,

Section 31 of the Specific Relief Act applies and Section 34 of the said Act

has no application, as contended by the learned counsel for the petitioner.

10. In so far contentions with regard to payment of Court Fees is

concerned, the learned counsel would submit that the respondent/plaintiff

paid the Court Fees under Section 24(d) of A.P.C.F & S.V. Act on the value

of the document/Gift Deed and as no declaration is sought, the Court Fees

need not be paid in terms of Section 37 of the Specific Relief Act on the

market value of the property, as on the date of filing of the suit. The

learned counsel would further submit that whether the suit is to be filed

under Sections 31 or 34 of the Specific Relief Act would not fall within the

ambit of Order VII, Rule 11 of CPC and unless the

ingredients/contingencies envisaged under Order VII, Rule 11 of CPC are

satisfied, the plaint cannot be rejected. The learned counsel while

supporting the Order under challenge submits that there is no material

irregularity or perversity in the same and therefore no interference is

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called for by this Court. The learned counsel also places reliance on the

Judgment of the Hon'ble Supreme Court in 2014 (5) SCC 603 and a

decision of the learned Judge of the erstwhile High Court for the State of

Telangana and the State of Andhra Pradesh at Hyderabad in Nade Ali

Mirza and Others vs. Khalida Mohammed Salim Dawawala and

Others1. Accordingly, she seeks dismissal of the Revision Petition.

11. On a detailed examination of the contentions of the learned counsel

for both sides, perusal of the records and the relevant provisions of Law,

the point that falls for consideration by this Court is as to "Whether the

Order under Challenge is not sustainable in the facts and circumstances of

the case and warrants interference?"

12. As narrated supra, respondent/plaintiff filed suit for declaration that

registered gift deed, dated 02.06.2020, which is registered as document

No.2345 of 2020 executed by defendant No.1 in favour of defendant No.2

as null and void and also for grant of permanent injunction restraining

defendant No.2 and his men from constructing house in the plaint

schedule property.

13. Respondent/plaintiff is third party to the gift deed and the gift deed

was executed by petitioner No.1/defendant No.1 in favour of petitioner

No.2/defendant No.2.

14. In Nade Ali Mirza and Others v. Khalida Mohammed Salim

Dawawala and Others2, learned Single Judge of the composite High

Court, after considering the entire case law wherein a similar issue was

1 2016 (1) ALT 300 2 2016 (1) ALD 318

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involved, inter alia held that since petitioners, in that case, are not parties

to the documents which are sought to be declared as null and void and

not binding on them, they are not bound to seek cancellation of 107

documents and they are not bound to pay Court fee under Section 37 of

the APCF & SV Act.

15. In the case on hand, the respondent, since is not party to the

document filed the above suit to declare that registered gift deed

executed by petitioner No.1 in favour of petitioner No.2 as null and void

and Court fee is paid under Section 24(d) of the APCF & SV Act. Thus, the

Court fee paid is correct.

16. In the judgment referred to supra, learned Single Judge of the

composite High Court also considered the aspect as to whether in a suit

filed for declaring sale deed/conveyance deed is null and void, specific

prayer to set aside is necessary. While placing reliance on Mahadeo

Prasad Singh v. Ram Lochan3 and other judgments, learned Single

Judge concluded that since documents itself according to the plaintiffs are

null and void, they need not seek for relief of cancellation. Learned Single

Judge placed reliance upon Polamrasetti Manikyam & Anr. v. Teegala

Venkata Ramayya & Anr.,4 wherein the Hon'ble Apex Court inter alia

the judgment of learned Division Bench of composite High Court in

Lakshmi Nagar Housing Welfare Association is no more good Law.

17. In view of the above, the Court fee paid under Section 24(d) of the

APCF & SV Act is in accordance with the scheme of the Act. The lower

Court considered all the relevant aspects and dismissed the petition.

3 1980 (4) SCC 354 4 2014 (5) SCC 603

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Therefore, this Court finds no grounds warranting interference in exercise

of powers of superintendence under Article 227 of the Constitution of

India.

18. Accordingly, this Civil Revision Petition is dismissed. No costs.

As a sequel, miscellaneous applications, if any, pending shall

stand closed.

__________________ NINALA JAYASURYA, J Date: 24.08.2022

IS

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THE HON'BLE SRI JUSTICE NINALA JAYASURYA

Civil Revision Petition No.95 of 2022 Date: 24.08.2022

IS