Chattisgarh High Court
Dharam Rao vs Shafiq Ahmed Khan (Died) Through ... on 7 December, 2022
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP227 No. 990 of 2015
• Dharam Rao S/o Kameshwar Rao, Aged About 56 Years R/o Sahdev
Nagar, P O And P S Kotwali, Rajnandgaon. CG --- Petitioner.
Versus
1. Shafiq Ahmed Khan (Died) Through His Legal Heirs As per the Court'S
Order Dated 01-07-2021,
1.1 - Smt. Nikhad Bano Wd/o Late Shafiq Ahmad Aged About 35
Years R/o Jeewan Colony, Ward No. 45, Tahsil And District
Rajnandgaon Chhattisgarh.
1.2 - Suhab Ahmad S/o Late Shafiq Ahmad Aged About 10 Years R/o
Jeewan Colony, Ward No. 45, Tahsil And District Rajnandgaon
Chhattisgarh.
1.3 - Mobina Bano Wd/o Late Shafiq Ahmad Aged About 44 Years R/o
House No. 17/720, Shubhash Nagar, K.K. Road, Maudahapara,
H.P.O., Tahsil and District Raipur Chhattisgarh.
1.4 - Shamaila D/o Late Shafiq Ahmad Aged About 20 Years R/o
House No. 17/720, Shubhash Nagar , K.K. Road, Maudahapara,
H.P.O., Tahsil And District Raipur Chhattisgarh.
1.5 - Smt. Nargis Parveen D/o Late Shafiq Ahmed , W/o Shri Khaleel
Ahmad Nizamin Aged About 30 Years R/o House No. 17/720,
Shubhash Nagar , K.K. Road, Maudahapara, H.P.O., Tahsil And
District Raipur Chhattisgarh.
2. State Of Chhattisgarh, Through Collector Rajnandgaon, District
Rajnandgoan Chhattisgarh. --- Respondents
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For Petitioner : Mr. Kshitij Sharma, Adv.
For Respondent No.1.1. to 1.5 : Ms. Pooja Loniya on behalf of
Mr. Schin Nidhi, Adv.
For respondent No.2/State : Mr. S.S. Thakur, PL.
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Hon'ble Shri Justice Deepak Kumar Tiwari
Order On Board
07.12.2022
1. With the consent of the parties, the matter is heard finally.
2. The petitioner has filed the instant writ petition challenging the
order dated 21.09.2015 passed by Additional District Judge (FTC),
Rajnandgaon passed in Civil Suit No.8-A/2014 whereby the trial
Court has allowed the application filed by defendant No.1 - late
Shafiq Ahmed and called upon the petitioner/plaintiff to pay ad-
valorem courts fees.
3. Shri Sharma, learned counsel for the plaintiff/petitioner would
submit that plaintiff has filed a suit for declaration and permanent
injunction. In the plaint, it is specifically averred that he got a loan
of Rs.10 lacs from the respondent/defendant late Shafiq Ahmed
and for the security of the said loan a sale deed dated 26.06.2012
was executed. Though the plaintiff approached the respondent for
repaying the loan and to discharge the debt however, the
defendant denied repayment and also re-conveyance of the suit
property, so the suit has been filed. He also submits that the
plaintiff has paid fixed court fees which has been valued properly
but the trial Court has erroneously held that ad-valorem is
required.
4. He placed reliance in the matter of Sunil and others Vs. Awadh
Narayan and others reported in (2010) 4 MPLJ 431He submits
that such issue can be decided after recording of the evidence and
in the judgment passed by this High Court in WP (227)
No.616/2014 decided on 05.11.2015 in between Seetaram Rajak
Vs. Praveen Kumar Mishra and anr it was held that such issue
can be decided after recording of the evidence.
5. On the other hand, counsel for the respondents submits that
impugned order is well merited and does not call for any
interference by this Court.
6. Heard learned counsel for the petitioner and perused the material
available in petition.
7. The matter in issue is no longer res integra as in the matter of
Suhrid Singh Vs. Randhir Singh reported in (2010) 12 SCC 112
it has been clearly held that where excutant of a sale 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
no binding on him. The paragraph 7 of the said judgment is
reproduced hereunder:-
"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. Even in the matter of Sunil Vs. Awadh Narayan (Supra) relied by
the petitioner, it has been observed that when the plaintiff makes
an allegation that the instrument is void and hence not binding on
him, ad valorem court fees is not payable. But in the instant case
the plaintiff/petitioner himself asserts that the transaction is loan
transaction so the document is not void ab intio but it is voidable.
9. So the trial Court has rightly held for payment of ad valorem court
fees on the sale deed. Further, submission advanced, in view of
Sitaram Rajak (supra), is also not acceptable in the instant case
because when the pleadings is explicit then there is no difficulty for
the court to decide issue on the basis of the plaint averments.
10. In view of the aforesaid analysis, this Court is of the considered
view that the impugned order is not suffering from any illegality or
infirmity and the same does not call for any interference by this
Court.
11. Petitioner/plaintiff is directed to approach the concerned Court for
payment of requisite court fees and in turn, the concerned Court
may grant 15 days further time for payment of such court fees. As
the matter is quite old, the concerned Court is directed to expedite
the matter.
12. Writ petition is disposed of accordingly.
Sd/-
(Deepak Kumar Tiwari)
Judge
Ajay
