Mohd. Kutubuddin Ansari vs Smt. Ranju Singh
2022 Latest Caselaw 7218 Chatt

                                       1

                                                                     AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR

                               FA No. 233 of 2018
        Mohd. Kutubuddin Ansari S/o Mohd. Sadruddin Ansari Aged About
        37 Years R/o Ward No.9, Mouharpara, Menendragarh, Police
        Station And Tahsil Menendragarh, District Koriya, Chhattisgarh
                                                               ----Appellant
                                  Versus
     1. Smt. Ranju Singh, W/o Abhay Singh, Aged About 34 Years, R/o
        Belfare Colony, Khongapani, Police Station Jhagrakhaand, Tahsil
        Manendragarh, District Koriya, Chhattisgarh
     2. Ajit Singh, S/o Shivmurty Singh, Aged About 32 Years, Director Tata
        Motors Show Room, Manendragarh, R/o Khongapani, Tahsil
        Manendragarh, District Koriya, Chhattisgarh
                                                   Respondents
        _____________________________________________________
For appellant- Shri Raj Kumar Pali, Advocate.
For respondents - Shri Ravindra Agrawal and Shri Neeraj Kumar Mehta,
Advocates.

                 Hon'ble Shri Justice Goutam Bhaduri &
                 Hon'ble Shri Justice N.K. Chandravanshi
                           Judgement on Board


Per Goutam Bhaduri, J.

02/12/2022 Heard.

1. Instant appeal is by the plaintiff against the judgement and decree

dated 27/01/2018 passed by the Second Additional District Judge,

Manendragarh, District Koriya in Civil Suit No.11-A/2012 wherein suit for

declaration and injunction was dismissed. The plaintiff has filed the instant

appeal against the judgement and decree.

2. According to the plaint averments, the plaintiff owned a house at

Ward No.9, Mouharpara at Manendragarh, District Koriya. The house was

comprised over khasra No.104/17 and a sale deed was executed on

11/06/2012 in favour of respondent No.1, Smt. Ranju Singh. The sale

consideration was agreed to be Rs.16 lakhs. It is pleaded in the said

house, four tenants were in occupation and according to the plaintiff on

10/06/2012 since he was in dire need of money, he expressed his desire

to sell the said property though it was valued higher but agreed to sell it for

Rs.16 lakhs. On next day, the sale deed was scribed and was presented

before the Sub Registrar, Manengragarh. Plaintiff believing the statement

of the respondent/purchaser scribed his signature over the sale deed with

an understanding that the sale consideration would be paid to them. After

the signature was scribed over the sale deed and was presented before

the Sub Registrar, since the presentation of the document was at about

5 pm in the late hours, the respondent promised and assured that he

would be bringing the amount of sale consideration but after long wait, no

one turned up and thereafter the registry office was closed. It is stated the

plaintiff was sanguine of the fact that the amount of sale consideration

would be paid on the next day as the registry is not complete but amount

of sale consideration was never paid. The allegation was made that with

the connivance of the Sub Registrar, fraud was played on the plaintiff and

a sale deed got executed without payment of the sale consideration.

Therefore after exchange of the notice and complaint to the police when

sale consideration was not paid, a suit for declaration and injunction was

filed wherein prayer was made to cancel the sale deed.

3. The respondent on the contrary, denied all the averments of the

plaint allegation and stated that initially in the month of May, 2012 an

agreement was executed wherein the plaintiff had received an amount of

Rs.10 lakhs and subsequently the remaining amount of sale consideration

of Rs.6 lakhs was paid before the Sub Registrar and the plaintiff admitted

those facts before the Registrar. Therefore, the sale deed was executed

after due payment of sale consideration in its entirety. The counter claim

was made with the averments that the defendant had requested to stay

at suit premises for one month on payment of rent but eventually with

passing of the time since premises was not vacated, prayer for possession

was claimed for.

4. The learned trial court framed the issues, (i) as to whether the sale

deed was got executed by the defendants without sale consideration and

by exercising fraud and conspiracy, (ii) as to whether the deed of sale

would become ineffective thereby right/title of the plaintiff would be in

existence. The Court arrived at a finding that fraud is not proved and

further in respect of the ownership, it was also held in negative qua the

plaintiff. Further the court framed the issue whether the court fees has

been paid properly or not and gave a finding that proper court fees was

not paid by plaintiff and eventually suit was dismissed. With respect to the

counter claim, the learned trial court dismissed the counter claim. Hence,

the instant appeal is by the plaintiff against the dismissal of the civil suit

and a cross objection under Order 41 Rule 22 CPC is by the respondents.

5. Learned counsel for the appellant refers to the document Ex.P-1

which is a copy of the sale deed and would submit that the presentation of

the document before the Sub Registrar was at 5 pm on 11 th June, 2012

and as per the pleading after the said sale deed was presented for

registration by playing fraud, the signatures were obtained but sale

consideration was not paid to the extent of Rs.16 lakhs. He refers to the

statement of PW-1 to submit that according to the plaintiff, the sale

consideration of Rs.16 lakhs was not paid. He further refers to the notice

and the complaint made to the Sub Registrar on 12/06/2012 to show that

immediately after the sale deed got executed, complaint was made that

consideration amount has not been paid. He also refers to the statement

of DW-1 to submit that in the cross-examination, Smt. Ranju Singh has

admitted that she had only given Rs.6 lakhs to the plaintiff/appellant. He

would therefore, submit that if the sale consideration has not been paid

then sale deed ipso facto becomes void ab initio and the learned trial court

failed to appreciate those facts, therefore the judgement and decree of the

trial court to the extent of the dismissal of the civil suit requires a reversal.

6. Per contra, learned counsels Shri Ravindra Agrawal and Shri

Neeraj Kumar Mehta would submit that specific issue was framed about

non payment of ad valorem court fees. Referring to the law laid down in

(2010) 12 SCC 112 in between Suhrid Singh Alias Sardool Singh Vs.

Randhir Singh & Ors. he would submit that when the plaintiff was an

executant to the sale deed, when annulment of the sale deed was sought

for, which is for Rs.16 lakhs, ad valorem court fees was required to be

paid in the civil suit. He would further submit that without prejudice if the

entire amount of sale consideration was not paid, the sale deed could not

have been annulled and the plaintiff would have been left with only

remedy to ask for the remaining amount of sale consideration. He would

further submit that therefore dismissal of the suit by the trial court is well

merited. Referring to his counter claim, he would submit that since the

counter claim was for possession on the premises that an amount of

Rs.100/- was fixed as a rent to occupy the house for a further period of

one month. It is stated the plaintiff failed to vacate the premises despite

execution of sale deed in favour of respondent and the trial court

dismissed the counter claim that plaintiff has not sought for and not paid

the court fees as per section 7 (v) of the Court fees Act and is not entitled

for any relief. He would submit that the said finding is completely perverse

and requires to be set aside.

7. We have heard learned counsel for the parties at length and

perused the documents.

8. The plaintiff has averred that a sale deed got executed on

11/06/2012 for a sale consideration of Rs.16 lakhs though the market

price was Rs.20 lakhs. According to the plaint allegations, the house which

was subject matter of sale, the ground floor and the first floor was agreed

to be sold and second floor was agreed to be in the possession of the

plaintiff. Further plaint allegation purports that on 12/06/2012 the sale

deed was prepared in stamp format at the office of Rajendra Pal Gupta,

Advocate and the stamp was also purchased from there only. It is stated

thereafter they waited uptill 5 pm. Thereafter, defendant No.2/respondent

No.2 Ajit Singh came and said that registry office would be closed and

hurried and presented the sale deed with the signature. Thereafter, the

plaintiff waited till 7 pm out side the office of the Sub Registrar for payment

of the sale amount but the office was closed and assurance was given by

defendant No.2 that the payment would be made on the next date as the

sale deed has not been completed.

9. The sale deed which is marked as Ex.P-1 shows that it was

presented on 11th June, 2012, therefore it appears that there is

inconsistency in the pleading as document was pleaded to be presented

on 12/06/2012. The statement of PW-1 would show that he has stated that

on 11/06/2012 the suit property was agreed to be sold to the respondent

for Rs.16 lakhs and on 12/06/2012 the document was signed and it was

presented at about 5 pm before the Registrar. The said statement again

do not match with the document Ex.P-1 which shows that sale deed was

presented on 11th June, 2012 at 5 pm and not on 12/06/2012. When the

plaintiff was very specific of the fact that on 11 th it was agreed to be

purchased by the respondent for Rs.16 lakhs and the document was

hurriedly presented on 12/06/2012 at 5 pm, then the document Ex.P-1

which shows that it was already presented on 11/06/2012 speaks aloud

about the reliability of the statement made by the plaintiff. The plaintiff

relied on the averments with time and date specific. When such positive

averments are inconsistence with documentary evidence it creates a cloud

of doubt on the correctness of statement and inference comes as an after

thought.

10. Further more, the perusal of Ex.P-1 would show that the plaintiff

admitted the fact that he has received the entire sale consideration before

the Registrar whereas in the statement the plaintiff averred that the

defendant/respondent influenced the Registrar and got the sale deed

registered appears to be an after thought. A simple bald statement making

allegation of fraud with the connivance of the officer of the Sub Registrar

cannot be accepted as a reliable truth as the plaintiff was expected to

state the facts correctly as the burden lies on him.

11. The Supreme Court way back in Ladli Prashad Jaiswal v. Karnal

Distillery Co. Ltd. AIR 1963 SC 1279, held that when a pleading of

undue influence is being set up, the burden lies on the party raising it.

Those averments requires a special pleading and proof. Paras 19 & 25 of

the Judgment are relevant and quoted below :

(19). Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question of fact. In Satgur Prasad v. Har Narain Das, 59 Ind App 147 : (AIR 1932 PC 89) the Privy Council held that in a suit to set aside a deed on the ground that it was procured by undue influence and fraud, the finding that it was so procured is fa finding of fact and is not liable to be reopened if fairly tried. Under the Civil Procedure Code, a second appeal does not lie to the High Court, except on the grounds specified in the relevant provisions of the Code, prescribing the right to prefer a second appeal, and the High Court has not jurisdiction to entertain a second appeal "on the ground of an erroneous finding of fact however gross or inexcusable the error may seem to be" (Mt. Durga Choudharian v. Jawahir Singh Choudhari, 17 Ind App 122 (PC). But the challenge before Bishan Narain J., to the decision of the District Judge was founded not on the plea that appreciation of evidence was erroneous, but that there were no adequate particulars of the plea of undue influence, that the particulars of facts on which undue influence was held established by the District Judge were never set up, that there was no evidence in support of the finding of the District Judge and that burden of proof on a misconception of the real nature of the dispute was wrongly placed on the plaintiff. A decision of the first appellate Court reached after after placing the onus wrongfully or based on no evidence, or where there has been substantial error or defect in the procedure, producing error or defect in the decision

of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision."

(25). The doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of S. 16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will, may also remain in a position to suppress the requisite evidence in support of the plea of undue influence."

In the instant case, the plaintiff tried to project that unfair advantage

was being taken by the defendant and since she was posted outside

Raipur at a far off place in Indore, the defendant has used his

position to obtain an unfair advantage and the sale transaction was

effected, but particulars of such pleadings are absent, which points

out a fraud.

12. When such factum of "fraud" is projected, the Supreme Court in

Ramesh B. Desai Vs. Bipin Vadilal Mehta (2006) 5 SCC 638 has held

that specific pleadings are required. At paras 22 & 24 the Court held as

under:

"22. Undoubtedly, Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard. Where some transaction of money takes place to which 'A', 'B' and 'C' are parties and payment is made by cheques, in normal circumstances a third party 'X' may not get knowledge of the said transaction unless he is informed about it by someone who has knowledge of the transaction or he gets an opportunity to see the accounts of the parties concerned in the Bank. In such a case an assertion by 'X' that he got no knowledge of the transaction when it took place and that he came to know about it subsequently through some proceedings in court cannot be said to be insufficient pleading for the purpose of Order 6 Rule 4 CPC. In such a case 'X' can only plead that he got no knowledge of the transaction and nothing more. Having regard to the circumstances of the case, we are of the opinion that the High Court was in error in holding that there was no proper pleading of fraud.

24. Mr. Iqbal Chagla, learned counsel for the respondents, has submitted that the full particulars of fraud had not been given in the company petition and as such there was no compliance with Order 6 Rule 4 CPC in the Company petition and the learned Company Judge has rightly dismissed the same. In support of this submission, he has placed reliance on Bishnudeo Narain v. Seogeni Rai AIR 1951 SC 280 :

1951 SCR 548 wherein it was held that : (SCR p. 556) "In cases of fraud, undue influence and coercion, the parties pleading it must set forth

full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence.

General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be...."

Reliance has also been placed on Bijendra Nath Srivastava v.

Mayank Srivastava (1994) 6 SCC 117 and paras 208 and 228 of the

report in Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad (2005)

11 SCC 314 where the same principle has been reiterated. We have

already considered this aspect of the matter and in our opinion in the

facts and circumstances of the case the plea raised in the company

petition cannot be held to be wanting in compliance with Order 6

Rule 4 CPC."

13. Therefore, when the question of undue influence and fraud was

developed by the plaintiff, the particular pleading with supportive proof

was required to be placed before the court and casual statement could not

be given a way to question a registered sale deed. With respect to non

payment of sale consideration to the plaintiff he has referred to statement

of DW-1, it has been stated that only Rs.6 lakhs was paid by the

purchaser whereas sale deed is for Rs.16 lakhs. The defendants stated

that earlier to such sale on 26/05/2012 an agreement was executed for

sale of the said property and amount of Rs.10 lakhs was received by the

plaintiff from defendant No.2 i.e. Ajit Singh. Plaintiff Mohd. Kutubuddin

Ansari (PW-1) in the cross-examination admitted the fact that on

26/05/2012 he executed an agreement for sale of the said property and

admitted to have received Rs.10 lakhs before Notary public. Though the

said document of said agreement has not been placed on record but in

view of the admission made it shows that the part of sale consideration

was paid to the plaintiff in an earlier transaction.

14. Besides these fact, in a recent decision of the Supreme Court in

Kewal Krishan Vs. Rajesh Kumar & ors. reported in 2021 SCC OnLine

SC 1097 the Court has held that in absence of sale consideration, sale

would be void. In para 16 and 17 of the said judgment the Court has held

as under:-

"16. Section 54 of the Transfer of Property Act, 1882 (for short

"the TP Act") reads thus:

"54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised.

Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.

17.Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the

remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property."

15. When we went through the said judgement we do not see that the

judgement rendered in Dahiben Vs. Arvindbhai Kalyanji

Bhansushali (Gajra) through L.Rs. (2020) 7 SCC 366 was not

considered wherein the Supreme Court held that if sale consideration has

not been paid, it could not be a ground of cancellation of sale deed. Para

29.7 and para 29.9 are relevant here and quoted below:-

29.7. Section 54 of the Transfer of Property Act, 1882 provides as under:

"54. "Sale defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised."

The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e., transfer of all rights and interest in the property, which was possessed by the transferor to the transferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part-paid and part- promised". Price thus constitutes an essential ingredient of the transaction of sale.

29.9 In view of the law laid down by this Court , even if the averments of the plaintiffs are taken to be true, that the

entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the sale deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of registered sale deed. We find that the suit filed by the plaintiffs is vexatious, merit-less, and does not disclose a right to sue. The plaint is liable to be rejected under Order 7 Rule 11(a).

16. Therefore, in the recent judgement of Kewal Krishan Vs. Rajesh

Kumar & ors. reported in 2021 SCC OnLine SC 1097 the earlier

judgement of equal strength of Supreme Court bench rendered in (2020)

7 SCC 366 was not under consideration while subsequent judgement

was passed.

17. In the circumstances of this case, we would like to follow the

judgement of M.P. High Court in Jabalpur Bus Operators Association

2003 (1) MPLJ 513 wherein the High Court held that in case of conflict

between two decision of Apex Court, Benches comprising equal number of

Judges, decision of earlier Bench is binding unless explained by latter

bench of equal strength in which the later decision is binding. Therefore, it

was held that decision of earlier Division Bench unless distinguished by

decision of latter Division Bench, the earlier one would be binding on High

Court and the Subordinate Court. Para 9 of the said judgement is re-

produced hereunder:-

"9. Having considered the matter with broader dimensions, we find that various High Courts have given different opinion on the question involved. Some hold that in case of conflict between two judgments on a point of law, later decision should be followed; while others say

that the Courts should follow the decision which is correct and accurate whether it is earlier or later. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding precedent and Article 141 of the Constitution of India. There are also decisions which hold that single Judge differing from another single Judge decision should refer the case to larger Bench, otherwise he is bound by it. Decisions which are rendered without considering the decisions expressing contrary view have no value as a precedent. But in our considered opinion, the position may be stated thus -

With regard to the High Court, a single Bench is bound by the decision of another single Bench. In case, he does not agree with the view of the other single Bench, he should refer the matter to the larger Bench. Similarly, Division Bench is bound by the Judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding. The decision of larger Bench is binding on smaller Benches.

In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench unless distinguished by latter Division Bench is binding on the High Courts and the Subordinate Courts. Similarly, in

presence of Division Bench decisions and larger Bench decisions, the decisions of larger Bench are binding on the High Courts and subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and Subnordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate The common thread which runs through various decisions of apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh's case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the Judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in preceding paragraphs of this judgment, does not lay down the correct law as to application of precedent and is, therefore, overruled on this point."

(Emphasis supplied)

18. Consequently, apart from the fact as we have held that it has not

been proved that the sale consideration was not paid, the submission of

the learned counsel for the appellant for cancellation of sale deed for want

of entire sale consideration cannot be accepted that the sale deed would

be required to be held to be void.

19. The another issue which comes for consideration is that the plaintiff

has sought for cancellation of the sale deed wherein he was a party. It is a

settled proposition that when a person is a party to a deed and sought for

cancellation of the same, then ad valorem court fees is required to be paid

as per section 7 (iv) (c), 5 and Schedule II, Article 17(iii) of the Court-fees

Act. Since the suit was for cancellation and the consequential relief, it

would be governed as per Section 7 (iv) of the Court-fees Act. The

Supreme Court in the matter of Suhrid Singh Alias Sardool Singh Vs.

Randhir Singh & Ors. reported in (2010) 12 SCC 112 wherein the Court

at para 6, 7 and 8 has held as under:-

"6.The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under sub-clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof.

7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the

following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If B, who is a non- executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad- valorem court fee as provided under Section 7(iv)(c) of the Act.

8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."

20. In a result, the finding of the trial court that the suit was not tenable

for want of proper court fees is justified.

21. Now coming back to the counter claim. Perusal of the order would

show in the written statement the defendant has averred that after the sale

deed was executed request was made by the plaintiff that he may be

allowed to stay in the house at a rent of Rs.100/- for one month and the

suit was valued at Rs.1200/- i.e. at the rate for one year rent and

accordingly court fees of 124 was paid. The learned trial court has held

that the counter claim was not made in proper format. After perusal of the

written statement and the counter claim though the counter claim has not

been captioned under the word and head as "counter claim" and a general

pleading has been made but such pleading will not deprive the defendant

to pursue their counter claim. Order VIII of CPC deals with written

statement, set-off and counter claim. According to Rule 1 of Order VIII the

defendant shall within first hearing or within such time as the Court may

permit a written statement of his defence. Rule 6A provide that defendant

in a suit may, in addition to his right of pleading a set-off under rule 6, set

up, by way of counter-claim against the claim of the plaintiff, any right or

claim in respect of a cause of action accruing to the defendant against the

plaintiff either before or after the filing of the suit but before the defendant

has delivered his defence or before the time limited for delivering his

defence has expired, whether such counter-claim is in the nature of a

claim for damages or not and such counter claim shall have the same

effect as a cross-suit so as to enable the Court to pronounce a final

judgment in the same suit, both on the original claim and on the counter-

claim and the plaintiff shall be at liberty to file a written statement in

answer to the counter-claim of the defendant within such period as may be

fixed. The counter-claim shall be treated as a plaint and governed by the

rules applicable to plaints. Further Order VIII Rule 6C provides that where

a defendant sets up a counter-claim and the plaintiff contends that the

claim thereby raised ought not to be disposed of by way of counter-claim

but in an independent suit, the plaintiff may, at any time before issues are

settled in relation to the counter-claim, apply to the Court for an order that

such counter-claim may be excluded, and the Court may, on the hearing

of such application make such order as it thinks fit.

22. As to the format of counter claim the issue was dealt by the

Supreme Court in the case of Ramesh Chand Ardawatiya Vs. Anil

Panjwani reported in (2003) 7 SCC 350 wherein it has held after

amendment of Order 8 by Act 104 of 1976 it opens up three modes of

pleading or setting up a counter-claim in a civil suit. Firstly, the written

statement filed under Rule 1 may itself contain a counter-claim which in

the light of Rule 1 read with Rule 6-A would be a counter-claim against the

claim of the plaintiff preferred in exercise of legal right conferred by Rule

6-A. Secondly, a counter-claim may be preferred by way of amendment

incorporated subject to the leave of the Court in a written statement

already filed. Thirdly, a counter-claim may be filed by way of a subsequent

pleading under Rule 9.

In the instant case, the written statement itself contains the counter

claim, therefore the finding of the learned trial court that it has not been in

the format, we are unable to agree to such proposition as the counter

claim can be incorporated in the written statement itself.

23. In the instant case, the counter claim has been made for ejectment.

The ground urged by the defendant was that the plaintiff agreed for an

amount of Rs.100/ per month rent and sought for occupation for a month

but thereafter he did not vacated the premises for which the sale deed

executed. No reply has been filed by the plaintiff to the counter claim by

the defendant. After perusal of the written statement it shows that the

counter claim find its place in the written statement but despite the counter

claim filed no reply was filed.

24. The pleading of the counter claim when are further read together

with the statement of DW-2, Ajit Singh it was stated that after the sale

deed, the plaintiff had given the possession of the suit property to the

defendant. Thereafter, he requested that he may be allowed to stay there

for a month and agreed to pay a rent of Rs.100/-. Cross-examination of

the said witness defendant No.2 nothing has been elicited to defy the

same. Apart from that no reply has been filed for the counter claim.

Consequently, in absence of any reply to the counter claim, the pleading

would be deemed to be admitted as not rebutted apart from the evidence

exists which has corroborated those facts. After going through the

pleading and the statement, evidence, we are of the view that the counter

objection preferred by the respondents deserves to be allowed.

25. In a result, the appeal filed by the plaintiff is dismissed and the

counter appeal preferred by the respondents is allowed. The

plaintiff/appellant would be required to vacate the premises within a further

period of three months. The plaintiff shall further be liable to pay Rs.100/-

per month as a mesne profit till November 2012 and occupational charge

@ Rs.3000/- per month from November, 2012 till the vacant possession of

the suit premises is delivered to the respondents.

               Sd/-                                                     Sd/-
        (Goutam Bhaduri)                                      (N.K. Chandravanshi)
              Judge                                                     Judge


gouri


                                         Head Note
                                      FA No. 233 of 2018

(i) In a suit for cancellation of sale deed by the executant, ad valorem court fees is required to be paid as per Section 7 (iv) of the Court Fees Act.

U;k;ky; 'kqYd vf/kfu;e dh /kkjk 7 (iv) ds rgr fu"iknudrkZ }kjk fodz; foys[k dks jÌ djus gsrq izLrqr okn esa U;k;ky; 'kqYd dk Hkqxrku ewY;kuqlkj fd;k tkuk vko';d gSA

(ii) Counter claim can be set up firstly in the written statement, secondly by way of amendment or thirdly by subsequent pleading.

izfrnkok loZizFke fyf[kr dFku esa] nwljh ckj la'kks/ku ds ek/;e ls vFkok rhljh ckj i'pkrorhZ vfHkopu }kjk lafLFkr fd;k tk ldrk gSA