Kailash Chandra Mittal vs Smt. Deepali Mittal
2021 Latest Caselaw 8937 MP

                              1
         THE HIGH COURT OF MADHYA PRADESH
                       WP-1464-2017
         Kailash Chandra Mittal Vs. Smt. Deepali Mittal

Gwalior, Dated : 17-12-2021

      Shri Abhishek Singh Bhadoriya, Counsel for the petitioner.

      Shri Sanjay Kumar Dwivedi, Counsel for the respondents.

This petition under Article 227 of the Constitution of India has

been filed seeking following relief:-

"In view of the facts and grounds mentioned in the writ petition and further in view of the documents annexed hereto, the humble petitioner prays that this Hon'ble Court may kindly be pleased to allow the writ petition and kindly set aside/quash the order dtd. 1.2.2017 (Annexure P/1) and the application (Annexure P/4) may kindly be dismissed in the interest of justice. Cost may also be awarded."

It is submitted by the counsel for the petitioner that the

petitioner has filed a suit for declaration of title and permanent

injunction. The petitioner and the respondent No. 2 are the real

brothers. They had two houses and, accordingly, it was agreed that

the petitioner would execute a relinquishment deed in favour of

respondent in respect of one house, whereas respondent would

execute a relinquishment deed in favour of the petitioner in respect of

other house. It is submitted that although the petitioner has executed

relinquishment deed in respect of one suit property, but the

respondents did not keep their promise and, accordingly, suit has

been filed.

It is submitted that the respondents No. 1 and 2 filed an

THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal

application under Order 7 Rule 11 of CPC read with Section 151 of

CPC alleging that the petitioner has valued the suit at Rs.10,40,000/-

for the purposes of pecuniary jurisdiction, but has paid a fixed Court

fee of Rs.1,000/-. Proper Court fee has not been paid as ad valorem

Court fee is payable under the facts and circumstances of the case.

The petitioner filed his reply and submitted that the provisions

of Order 7 Rule 11 of CPC are not applicable. It is submitted that a

specific issue can be framed with regard to the sufficiency /

insufficiency of the Court fee and only after the adjudication of the

said issue, the petitioner would be liable to pay the Court fee, if any.

The Trial Court by the impugned order held that since the

petitioner is the signatory of the relinquishment deed, therefore, if he

wants to avoid the said document, then he has to pay the ad valorem

Court fee. Since the petitioner himself has valued the suit property at

Rs.10,40,000/- for the purpose of pecuniary jurisdiction, accordingly,

it was directed that the petitioner must value of the suit on the market

value of the property and thereafter pay the Court fee accordingly.

Challenging the order passed by the Court below, it is

submitted by the counsel for the petitioner that the Trial Court failed

to see that since the relinquishment deed was got executed by playing

fraud on the petitioner, therefore, he is not required to pay the ad

THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal

valorem Court fee.

Per contra, it is submitted by the counsel for the respondents

that since the petitioner himself has executed relinquishment deed

and by filing a civil suit, he wants to avoid the relinquishment deed,

therefore, he must pay ad valorem Court fee and the Trial Court did

not commit any mistake by directing the petitioner to value the suit

on the basis of market price of the property and to pay the Court fee

accordingly. Counsel for the respondents have relied upon the

judgments passed by the Supreme Court in the case of Suhrid Singh

alias Sardool Singh Vs. Randhir Singh and others reported in

(2010) 12 SCC 112 as well as the judgments passed by this Court in

the cases of Ambika Prasad and others Vs. Shri Ram Shiromani

@ Chandrika Prasad Dwivedi and another reported in 2011 (3)

MPLJ 184, Smt. Israt Jahan Vs. Rajia Begum and others reported

in AIR 2010 MP 36 and Jagmohan Jadon Vs. State of MP reported

in AIR 2020 MP 163.

Heard the learned counsel for the parties.

According to the plaint, the property in dispute is House No.

85, situated in Ward No. 5, Sant Kabir Marg, Jaura, District Morena.

The petitioner had ½ share in the suit property, whereas respondents

No. 1 and 3 had 1/4th share in the same as the same was jointly

THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal

purchased by them from one Devendra Singh by registered sale deed

dated 27.05.1999. Thereafter, the petitioner and the respondent No. 2

purchased another House No. 114, Ward No. 5 situated on Sant Kabir

Marg, Jaura, District Morena and the petitioner as well as the

respondent No. 2 had ½ share in the house. The petitioner is the real

brother of the respondent No. 2, whereas respondent No. 1 is the wife

of the respondent No. 2 and the respondent No. 3 is the wife of

Rajendra Prasad, third brother of the petitioner as well as respondent

No. 2. Thereafter, with passage of time, respondents with dishonest

intention put an illegal pressure on the petitioner that both the

property may be partitioned and, accordingly, it was agreed that the

petitioner may relinquish his share in the House No. 85, Ward No. 5,

situated on Sant Kabir Marg, Jaura, District Morena, whereas the

respondent No. 2 would relinquish his share in the house No.114,

Ward No. 5 situated on Sant Kabir Marg, Jaura, District Morena.

Thereafter, the respondent No. 2 started demolishing and

reconstructing the House No. 85, Ward No. 5 situated on Sant Kabir

Marg, Jaura, District Morena. When it was objected by the petitioner,

then he was informed that since both the parties have mutually agreed

upon to relinquish their shares, therefore, plaintiff is also free to

reconstruct the House No.114, Ward No.5 situated on Sant Kabir

THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal

Marg, Jaura, District Morena. Thereafter, the relinquishment deed in

respect of House No. 85 and House No. 114 were prepared. Since the

petitioner was busy in election campaign of his wife, therefore,

taking advantage of the situation, the respondents came to the house

of the petitioner along with register of the Sub-Registrar office and

obtained his signatures and took both relinquishment deeds with

them on the pretext that the relinquishment deed which was to be

executed by the respondent No. 2 shall be handed over to the

petitioner on the next date. However, later on, the petitioner came to

know that although the respondents have got the relinquishment deed

registered which was executed by the petitioner in respect of House

No. 85, but did not get the relinquishment deed registered in respect

of House No. 114. Accordingly, the suit was filed.

From the plain reading of the pleadings, it is clear that the

petitioner is claiming misrepresentation on the part of the

respondents. The petitioner has not denied his signatures on the

relinquishment deed. If the petitioner wants to avoid relinquishment

deed, specifically when he himself is a party to the said document,

then ad valorem Court fee is payable.

As no jurisdictional error could be pointed out by the counsel

for the petitioner, therefore, the order dated 01.02.2017 (Annexure P-

THE HIGH COURT OF MADHYA PRADESH WP-1464-2017 Kailash Chandra Mittal Vs. Smt. Deepali Mittal

1) is hereby affirmed.

The petition fails and is hereby dismissed.

The interim order granted on 01.03.2017 is hereby vacated.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.12.17 19:26:11 +05'30'