Chattisgarh High Court

Smt. Pushpa Agrawal vs Devmuniya on 7 July, 2022

                                1

                                                              NAFR

      HIGH COURT OF CHHATTISGARH, BILASPUR

                        CR No. 14 of 2020

   1. Smt. Pushpa Agrawal W/o Anil Kumar Agrawal Aged About 47
       Years

   2. Smt. Anita Agrawal W/o Sunil Kumar Agrawal Aged About 45
       Years

     Both R/o Banaras Chowk, At Post Ambikapur Tahsil - Ambikapur,
     District - Surguja Chhattisgarh

                                                     ---- Petitioner

                             Versus

   1. Devmuniya W/o Late Diplal Aged About 48 Years Caste - Rajwar,
      R/o Village - Gonda, Tahsil - Pratappur, District - Surajpur,
      Chhattisgarh. ( Plaintiff )

   2. Anil Agrawal S/o Bajrang Agrawal Aged About 50 Years

   3. Sunil Agrawal S/o Bajrang Agrawal Aged About 48 Years

     Both R/o Banaras Chowk, At Post Ambikapur Tahsil - Ambikapur,
     District - Surguja Chhattisgarh

   4. The State Of Chhattisgarh, Through The Collector, Surajpur,
       District - Surajpur Chhattisgarh. (Defendants )

                                                   ---- Respondent

For Applicant                 Mr. A.K. Prasad, Advocate
For Respondent                Mr. DN Prajapati, Advocate

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

Order On Board

7/7/2022

1. Heard.

2. This Civil Revision has been preferred against the order dated

5.12.2019 passed in Civil Suit No.06-A/2018 by the Civil Judge,

Class-I, Pratappur District Surajpur (CG), whereby, the

application of the applicants/defendants 1 & 2 filed under

Order 7 Rule 11 of the Code of Civil Procedure, has been

dismissed.

3. Learned counsel for the applicants submits that the

plaintiff/non-applicant No.1 filed a Civil Suit for cancellation of

the sale-deed dated 23.12.2010 executed by the plaintiff in

favour of defendants 1 & 2, but since no consideration was

given, the said instrument became void. The suit was also for

declaring title, injunction and possession of the said suit

property. Though the sale-deed has been executed for

consideration amount of Rs.4,95,000/-, but no valuation was

made on such sale consideration as the plaintiff was required to

pay the ad valorem court fees according to Section 7(v) of the

Court Fees Act, 1870 (in short "the Act, 1870"). The Court while

passing the order, unanimously, decided the application holding

that the suit is mixed question of law and fact. From the

averments of the plaint itself, it appears that the valuation is

required to be made on the basis of ad valorem court fees.

Since the relief claimed is not proper and no proper court fees

has been paid, therefore, the plaint ought to have been

rejected vide Order 7 Rule 11 of CPC. Hence, this revision.

4. On the other hand, learned counsel for the plaintiff/non-

applicant No.1 supported the impugned order and placed

reliance on the matter of J. Vasanth and others Vs. N. Ramani

Kanthammal (Dead) represented by legal representatives

and others, (2017) 11 SCC 852 and referred to para 26 and 27

of the judgment to submit that as the proper court fees on the

plaint is a primary question between the plaintiff and the State,

the defendants have only assisted the Court in arriving at a just

decision. The defendant who may believe and even honestly

that proper court fee has not been paid by the plaintiff has still

no right to move the superior courts by appeal or in revision

against the order adjudging payment of court fee payable on

the plaint. Learned counsel further submits that if the Court

grants time to pay the ad valorem court fees, as mentioned in

the sale-deed, he is ready to pay the requisite court fees and

also correct the valuation according to the value of the sale-

deed.

5. Heard learned counsel for the parties and perused the

documents present on the record.

6. It is indisputable that non-applicant No1/plaintiff is a party to

the impugned sale-deed, which he wants to annul by the sale-

deed on the ground of non-payment of the consideration

amount. The said issue has been dealt with by Hon'ble the

Supreme Court in the matter of Suhrid Singh alias Sardool

Singh Vs. Randhir Singh and others, 2010 12 SCC 112, in

which, the following was held in para 7 & 8 :

"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."

7. In this regard, it is pertinent to mention that the provision of

Sections 31 of the Specific Relief Act, 1963 (in short "the Act,

1963") is relevant, which need to be reproduced below :

31. When cancellation may be ordered -(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) if the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

8. So, the law has already been settled by the Hon'ble Supreme

Court in the case of Suhrid Singh (supra) that there is a

difference between a suit for cancellation of an instrument and

one for a declaration that the instrument is not binding on the

plaintiff, when the plaintiffs seeks to establish, a title by himself

and cannot establish that title without removing an insuperable

obstacle such as a decree or a deed to which he has been a party

or by which he is otherwise bound then quite clearly he must

get that decree or deed cancelled or declared to be void in toto.

Since the plaintiff has sought cancellation of the sale-deed, the

ad valorem court fees was required to be paid and the suit

should also have been valued accordingly.