Bombay High Court
Ravindra Narayan Rajarshi And Ors vs Smt. Rohini Ganpatrao Heblikar ... on 31 July, 2017
Bench: Mridula Bhatkar
Sherla V.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.339 OF 2016
Ravindra Narayan Rajarshi & Ors. ... Applicants
Vs.
Smt.Rohini Ganpatrao Heblikar & anr. ... Respondents
with
CIVIL REVISION APPLICATION NO.438 OF 2016
Nilima Vinayak Rajarshi & Ors. ... Applicants
Vs.
Rashmikant Kantilal Shah & anr. ... Respondents
with
CIVIL REVISION APPLICATION NO.481 OF 2016
Laxman Narayan Rajarshi & Ors. ... Applicants
Vs.
Rekha Milind Heblikar & anr. ... Respondents
with
CIVIL REVISION APPLICATION NO.561 OF 2016
Smt.Sulbha Balkrushna Rajarshi & Ors. ... Applicants
Vs.
Smt.Leena Rashmikant Shah & anr. ... Respondents
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with
CIVIL REVISION APPLICATION NO.562 OF 2016
Shri Govind Narayan Rajarshi
since deceased, through his Lrs
(a) Smt.Ratnaprabha Govind Rajarshi & Ors. ... Applicants
Vs.
Shri Chetan Mohanlal Desai & anr. ... Respondents
with
CIVIL REVISION APPLICATION NO.563 OF 2016
Shri Vishnu Narayan Rajarshi & Ors. ... Applicants
Vs.
Shri Chetan Mohanlal Desai & anr. ... Respondents
Mr.S.S. Kanetkar for the Applicants in all CRAs
Mr.A.B.Avhad for Respondents in all CRAs
CORAM: Mrs.MRIDULA BHATKAR, J.
JUDGEMENT RESERVED ON: JULY 4, 2017
JUDGEMENT DELIVERED ON: JULY 31, 2017
JUDGEMENT:
1. In all these Civil Revision Applications, the order dated
26.3.2015 passed by the 16 th Joint Civil Judge, Junior Division,
Pune, is challenged. The issue pertains to payment of Court fees
under the Maharashtra Court Fees Act. The plaintiffs i.e., the
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respondents, have filed respective suits for specific performance,
declaration and injunction. The land is owned by the original
defendant Nos.1 to 4 and the original defendant Nos.5 to 16 have
given consent for the same. So, different agreements were
executed with original plaintiffs i.e., the respondents on 12.4.1991
and thereafter as the original defendants, the original landlords, did
not act pursuant to the agreement, so the first purchasers i.e., the
original plaintiffs, filed suits for specific performance. The original
plaintiffs had knowledge that on 3.3.2005, the defendant Nos.1 to 6
had entered into agreement with defendant No.17 in respect of the
sale of the said lands. Further, the sale deed dated 3.5.2007 was
executed by defendant Nos.1 to 6 and defendant No.7 and
defendant Nos.19 to 36. Therefore, during pendency of the suit,
subsequently, defendant Nos.19 to 36 were added as party
defendants by way of amendment. Thus, in the original suit,
alongwith the prayer for specific performance of the agreement
dated 12.4.1991, a prayer asking for execution of the sale deed
and also handing over peaceful possession of the suit property
was sought. It was further prayed that the agreements between
defendants Nos.1 to 6 and defendant No.17 dated 3.3.2005 is to
be declared void and ab initio. These being Suits for specific
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performance, the plaintiffs have valued their suits ad-valorem to
the amount of consideration and their claim of possession in the
suit property. Besides, the main prayer and other prayer for
declaration, the plaintiffs valued the suit under section 6(iv)(j) of the
Bombay Court Fees Act. During the pendency of the suit,
application under Order VII Rule 11 of the Civil Procedure Code
was made that the plaintiffs have failed to value the suit correctly
and they have not paid proper court fees as per the provisions of
the Bombay Court Fees Act which should be valued under section
6(iv) (ha). Amendment was sought and prayer made that the Sale
Deed dated 3.5.2007 executed by defendant Nos.1 to 6 in favour
of defendant Nos.18 to 35 be declared void and not binding on
him. The said application was rejected by the trial Court and held
that the suit was properly valued. Hence, these Civil Revision
Applications.
2. The learned Counsel for the applicants has submitted that
the suit is not only for specific performance but there is also a
prayer for declaration that the development agreement dated
3.3.2005 between defendant Nos.1 to 6 and defendant No.17 be
declared null and void. The learned Counsel has submitted that
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the consideration shown in the development agreement is
Rs.1,50,00,000/- and which is susceptible to the monetary
consideration. He further submitted that by way of amendment,
application below exhibit 53, defendant Nos.19 to 36 were
impleaded and the prayer clauses c(i), c(e) were included.
Thereby, the plaintiffs added the prayers that the sale deed dated
3.5.2007 executed between defendant Nos.1 to 6 in favour of
defendant Nos.18 to 35 is not binding on him and the learned
Counsel argued that in view of these prayers, in respect of the
other deeds, the suit should have been valued as per section 6(iv)
(ha) of the Bombay Court Fees Act. The plaintiffs did not carry out
the amendment in the valuation of the suit and continued with the
valuation which was originally made. Thus, it is not the suit only
for specific performance but the other reliefs are also sought and,
therefore, the suit is under valued.
3. In support of his submissions, the learned Counsel for the
applicants relied on the judgments as follows:
i) Abdul Gaffar Abdul Samad vs. Niranjan Kumar
Ramnath Prasad Dwivedi & Ors.1
1 2005 (3) Bom.C.R. 879
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ii) Asha Sopan Maithane vs. Ramkrushna Punjaji
Wanare & Ors.2
iii) Chandrika Chunilal Shah vs. Orbit Finances
Pvt.Ltd. & ors.3
iv) M/s.Nandanvan Co-op. Hsg. Society Ltd. vs.
Nandanvan Co-op. Hsg. Society Ltd.4
v) Shri Abdulsattar Gulabbhai Bagwan vs. Shri
Vaibhav Laxmangiri Gosawi & Ors.5
vi) Prism Reality vs. Govind Yashwant Khalade & Ors. 6
vii) Bishan Sarup vs. Musa Mal & Ors.7
viii) Shamsher Singh vs. Rajinder Prashad 8
ix) Shailendra Bhardwaj & Ors. vs. Chandra Pal & Anr. 9
x) Sardar Tajender Singh Ghambhir & anr. vs. Sardar
Gurpreet Singh & Ors.10
4. Learned Counsel for the respondents / original plaintiffs while
opposing these applications has argued that all these suits are
basically suits for specific performance and ad-valorem to their
original agreement, the Court fees are paid. Even though
development agreement which was executed by the original
defendant Nos.1 to 16 with Defendant Nos.17 is challenged and
2 2011(4) Bom.C.R. 637
3 2011 (1) Mh.L.J.898
4 Appeal from Order No.978 of 2011 dated 19.12.2011
5 2-012 (2) ALL MR 310
6 (2015) 0 Supreme (Mah.) 186
7 AIR 1935 Allahabad 817 (FB)
8 (1973) 0 Supreme (SC) 233
9 (2013) 1 SCC 579
10 (2014) 10 SCC 702
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further the sale deed which is executed by Defendant Nos.1 to 16
with Defendant Nos.18 to 35, is also to be declared not binding on
him, the suit remained a suit filed under the Specific Relief Act and
it is not necessary for the plaintiffs to pay Court fees for the other
ancillary declaratory reliefs. He relied on the ratio laid down in the
cases of Dilip Bastimal Jain vs. Baban Bhanudas Kamble & Ors. 11
and Khanderao s/o. Bhujangrao Bhujangrao Babar vs.
Bharatbai w/o Shrimant Gomsale & Ors. 12 wherein the suits
were filed for the specific performance and prayer for declaration
regarding other sale deeds was valued u/s 6(iv)(j).
5. It is useful to cull out the ratio laid down in the cases referred
to above by both the learned Counsel for the parties.
6. In the case of Abdul Gaffar Abdul Samad vs. Niranjan
Kumar Ramnath Prasad Dwivedi & Ors. (supra), the plaintiff
has filed suit for declaration that development agreement executed
by defendant No.1 in favour of defendant No.3 is void and not
binding upon him. The plaintiff has also sought another relief for
perpetual injunction against the defendants. He claimed this relief
on the basis of his earlier agreement which was executed between
11 2001 3 Mh. L.J.730
12 2009(3) ALL MR 568
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him and defendant No.1. He claimed that he was also put in
possession. He valued the suit for Rs.1,000/- as per section
6(iv) (j) of the Bombay Court Fees Act and accordingly Court fees
of Rs.200/- was paid upon it. The suit is to be valued as per
provisions of section 6(iv)(d) and 6(v) of the Bombay Court Fees
Act. The learned Judge in the said case has held that the plaintiff
has filed suit for avoidance of contract of sale and development
and therefore, the suit is to be valued u/s 6(iv)(ha) of the Bombay
Court Fees Act.
7. In the case of Asha Sopan Maithane vs. Ramkrushna
Punjaji Wanare & Ors. (supra), the plaintiff has filed the suit for
cancellation of sale deed and it is to be held illegal which was
executed between defendant No.1 and the other defendants. The
plaintiff was not party to the said sale deed. The suit was also for
separate partition, possession and inquiry of mesne profits. In the
said matter, the trial Court has directed the plaintiff to pay deficit
court fees as per the provisions u/s 6(iv)(ha) and 6(iv)(d) of the
Bombay Court Fees Act. The High Court has also taken the same
view that it is susceptible to monetary consideration. However, in
the case of Asha Sopan Maithane (supra), the learned Single
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Judge of the Bombay High Court has distinguished between the
terminology used by the Legislature i.e., the market value in
section 6(v) at ad-valorem u/s 6(iv)(ha).
8. In the case of Chandrika Chunilal Shah vs. Orbit
Finances Pvt.Ltd. & ors. (supra), the suit was filed under
Maharashtra Ownership of Flats Act by the plaintiffs, the flat
purchasers, for specific performance. However, in the said suit,
the plaintiffs also sought the relief of cancellation of an agreement
of sale which was executed between the original defendant No.1
and subsequent defendants and the learned Single Judge of this
Court after considering the ratio laid down in Maria Philomina
Pereira vs. Rodriques Construction 13 wherein the learned
Single Judge of this Court has specifically mentioned that the suit
filed under MOFA is for statutory obligation and, therefore, is not to
be valued and no ad-valorem court fees are to be paid but it is to
be valued notionally under section 6(iv)(j). In the case of
Chandrika (supra), the learned Judge has also considered the
decision in Abdul Gaffar Abdul Samad vs. Niranjan Kumar
Ramnath Prasad Dwivedi & Ors. (supra) and held that though
13 1990 Mh.L.J. 445
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the suit under MOFA is to be valued under section 6(iv) (j), for
addition of further prayers of cancellation of agreement of sale
executed between the defendants, it is also to be valued u/s
6(iv)(ha).
9. In the case of M/s.Nandanvan Co-op. Hsg. Society Ltd.
vs. Nandanvan Co-op. Hsg. Society Ltd. (supra), the plaintiff has
filed the suit under MOFA for declaration that he is entitled to the
suit land and also asked that the agreement of development
between the other two defendants is to be declared bad in law,
illegal and contrary to the MOFA. The suit was valued under
section 6(iv)(j). The learned Single Judge has referred to all the
previous rulings in Maria Philomina Pereira (supra); Chandrika
vs. Orbit Finances Pvt. Ltd. (supra); Asha Sopan Maithane;
Vrindavan (Borivali) Co-operative Housing Society Ltd. vs.
Karmarkar Bros. & Ors.14 and held that the plaint was under-
valued in respect of declaration of the sale deeds between the
defendants. One and the same learned Single Judge of this court
at Aurangabad Bench had decided the cases of M/s.Nandanvan
Co-op. Hsg. Society Ltd. (supra) and Khanderao s/o.
14 1982 Mh.L.J.607
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Bhujangrao Bhujangrao Babar vs. Bharatbai w/o Shrimant
Gomsale & Ors. (supra). However, he has taken different views
on the basis of the subsequent rulings.
10. In the case of Abdul Sattar Gulabbhai Bagwan vs. Shri
Vaibhav Laxmangiri Gosawi & Ors. 15, the suit was filed for a
declaration that the sale deed was got executed from the plaintiff
by playing fraud. So, the substantive relief was sought that the
said declaration is not binding upon the plaintiff as it is illegal
without consideration. After filing of the suit, he had knowledge
that the defendant Nos.1 and 2 have executed the sale deed
between them and so, by amending the plaint, he added the
consequential prayer that the subsequent sale deed executed
between the defendants, is not binding on him. The defendants
contended that the suit is under-valued and the trial Court directed
the plaintiff to pay ad-valorem Court fees. The learned Single
Judge has held that in the prayer clause, there is avoidance of the
second agreement which took lace between the defendant and
therefore, the suit is required to be valued u/s 6(iv)(ha).
15 2012 (2) ALL MR 310
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11. In the case of Bishan Sarup vs. Musa Mal & Ors. (supra),
the Full Bench of the Allahabad High Court while deciding
adequacy and inadequacy of the Court fees, held that the court is
competent to find out the real nature of the consequential relief
and if it finds that the consequential relief has been claimed, then,
certainly, the plaintiffs will be liable to pay ad-valorem Court fees,
but on the other hand, if deliberately the consequential reliefs are
not asked for, then, the Court should not insist for the
consequential relief. So, it is open for the plaintiff to frame his suit
the manner in which he wants to.
12. In Shamsher Singh vs. Rajinder Prashad (supra), it was
held by the Supreme Court that in order to ascertain the issue of
Court fees, the averments and the prayers in the plaint are to be
considered and so, the substantive relief which is asked for is to be
looked into. It held that mere astuteness in drafting the plaint will
not be allowed to stand in the way of Court looking at the
substance of the relief asked for.
13. In the case of Sardar Tajender Singh Ghambhir & anr. vs.
Sardar Gurpreet Singh & Ors. (supra), the Supreme Court
observed that no order to make up deficiency of court fees was
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passed by the trial Court. The time must be granted by the Court
for payment of Court fees u/s 6 of the Court Fees Act and if despite
the order of the Court, deficit court fee is not paid, then, the
consequences as provided therein must follow. It held that the
High Court was also in error in holding that the deficiency in Court
fees in respect of the plaint cannot be made good during the
appellate stage.
14. Mr.Avhad, the learned Counsel for the respondents,
submitted that by way of amendment, the plaintiffs have
challenged the registered agreements which were entered into by
defendant Nos.1 to 16 in favour of defendant No.17 on 3.3.2005.
He is not a party to the said sale deed. He argued that his case is
squarely covered by the judgment of Surhid Singh @ Sardool
Singh vs. Ranjit Singh (supra).
15. In the case of Prism Realty (supra), the plaintiffs had filed a
suit for declaration that the development agreement and power of
attorney are bogus, illegal and not binding on the plaintiffs and also
for the declaration that the sale deed executed by defendant Nos.2
and 3 in favour of defendant Nos.4 and 5 is bogus, illegal and not
binding on the plaintiffs. The suit was also filed against the original
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owner claiming title of the suit property by adverse possession. In
the case of Prism Realty (supra), the relief sought was for
avoidance of sale and contract for sale and also the suit was for
title where the claim was made by adverse possession. While
fixing the valuation under the Maharashtra Court Fees Act, the
reliefs asked for are to be considered on the basis of the facts and
circumstances of each and every case. In the case in hand, the
plaintiff has filed a suit against the defendant not for avoidance but
for specific performance, declaration and injunction. During the
pendency of the suit, the defendant - owners of the land have
executed the sale deed in favour of respondent Nos.19 to 36 and,
therefore, the plaintiff has to seek further relief as not binding on
the plaintiff and the sale deed is non-est, void. Thus, the transfer
by defendant Nos.1 to 17 in favour of defendant Nos.19 to 36 was
during the pendency of the suit and, therefore, it was necessary for
the plaintiff to seek declaration that the said sale deed is void and
not binding on him. If such amendment and prayer would not have
been sought and the suit is decreed, then, at the time of execution,
these defendants will come as the obstructionists and file
application under Order XXI of the Civil Procedure Code and the
Executing Court will have to entertain it as a suit. Therefore, the
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subsequent transferees being necessary parties, are added in the
array of the defendants and against the said sale deed, the relief is
sought. I rely on Thomson Press (India) Ltd. Vs. Nanak
Builders & Investors Pvt. Ltd. & Ors. 16
16. The present suit is for the specific performance and not
merely for avoidance or cancellation of contract. The plaintiff is a
non-executant to the subsequent sale deed which was executed
lis pendens. In view of the ratio laid down by the Supreme Court
in the case of Suhrid Singh @ Sardool Singh (supra), if a person
is not an executant to a deed or agreement and seeks a
declaration that it is not binding on it as void, then, he is not
required to pay ad-valorem Court fees on the consideration
amount of the said agreement but is to be valued notionally. It is
borne in mind that the plaintiff is compelled to seek relief in respect
of such deed and against the transferee as the property is
transferred during the pendency of the suit. Insofar as that relief is
concerned, it being a consequential relief of declaration, is not
susceptible to monetary consideration.
16 Civil Appeal No.1518 of 2013 decided on 21.2.2013
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17. The Court fees is to be levied depending on the facts and
prayers of the case. For example, if the plaintiff files a suit for
specific performance against A, during the pendency of the suit, A
sells the property to B and thereafter B sells it to C by registered
sale deeds. Thus, the right of B and C is created in the property
due to further transactions. The plaintiff is required to make these
transferees as party defendants and seek reliefs against their
respective sale deeds that they are not binding on him and are
void. In doing so, due to these multiple transfers, he should not
suffer multiple imposition of Court fees. It will amount to double
taxation on the plaintiff which is illegal. The Court Fees Act 1879
is a Central Act and it is basically for the purpose of collection of
revenue to the State. Thus, it is a one form of taxation. Initially to
control the vexatious and false litigation, the Court Fees Act was
introduced. Prior to the British regime in some States as a custom,
a winner or a victor in a dispute has to pay some amount to the
King's treasury and in some States, the function of administration
of justice was free as a part of utmost noble duty of the King. The
Britishers introduced the concept of levying the Court fees and to
collect the funds to meet the expenditure of the administration of
justice. Thus, the scheme of Court Fees Act is based on a concept
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that the income earned from the civil litigation is to be spent to
meet the expenditure incurred in the criminal litigation. Thus, the
criminal administration of justice is always free. The Court Fees
Act is a fiscal statute. Though it is to be construed strictly, it is to
be kept in mind that the Act was passed not to arm the litigant with
a weapon of technicality against his opponent but it is to collect the
revenue for the benefit of the State. Thus, the object of the court
fee is to secure the revenue and not to coerce the litigant. The
Bombay Court Fees Act 1885 is a State Act under the umbrella of
the Central Act. Consistent with this object, the Legislature has
therefore introduced the concept of notional valuation which is not
susceptible to monetary valuation. So also a provision of recovery
of deficit court fee is made available and accordingly, the power
vests with the Court u/s 149 of the Civil Procedure Code. Keeping
this object in mind and after considering the pleadings, the
valuation of the suit is to be fixed. While appreciating these
transactions and payment of Court fees, the principle laid down in
the case of Suhrid Singh (supra) is to be kept in mind.
18. In the said case, the apex Court was concerned with a case
under the Punjab Court Fees Act and section 7(4)(c) of the said
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Act. On the ground that the Supreme Court did not deal with
Bombay Court Fees Act, the said case is distinguished by the
learned Single Judge of this Court in Prism Realty's case (supra).
It appears that the Punjab Court fees Act was not placed before
the learned Single Judge for the purpose of comparison. However,
the principle laid down in the case of Suhrid Singh (supra) that if
the person is non-executant of the document and prays for the
relief that the said document is declared to be void and not binding
on him, then, he is not to be required to pay Court fees, is the law
of the land and is binding on this Court. The facts of the case of
Prism Realty (supra) were different than the case in hand. The
facts in the present case are directly covered by the ratio laid down
in the judgments in Dilip Bastimal Jain (supra) and Khanderao
s/o. Bhujangrao Bhujangrao Babar (supra). At the time of
deciding the case in Chandrika (supra), the ratio laid down in the
case of Suhrid Singh (supra) was not considered by the learned
single Judge of this Court. The case in hand is for the specific
performance and accordingly, the plaintiff has paid ad-valorem
Court fees and therefore, the consequential relief of declaration
that subsequent sale deed is void and not binding on him is not
susceptible to monetary consideration and it is rightly valued u/s
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6(iv)(j) of the Bombay Court Fees Act. The learned Judge of the
trial Court has taken a correct view. The judgments of the Bombay
High Court in Prism Reality (supra) and of the hon'ble Supreme
Court in Suhrid Singh @ Sardool Singh (supra) were not placed
before him and his view is entirely based on the ratio laid down in
Dilip Bastimal Jain (supra) and Khanderao s/o. Bhujangrao
Bhujangrao Babar (supra), which is legal and right view.
19. Hence, the impugned order is maintained. Civil Revision
Applications are dismissed.
(MRIDULA BHATKAR, J.)
