Madhya Pradesh High Court
Rajesh Kumar Jain vs Gajri Bai on 21 June, 2022
Author: Vishal Dhagat
1
W.P. No.12678/2016 and C.R. No.351/2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
WRIT PETITION No. 12678 of 2016
Between:-
1. GAJRI BAI D/O SHRI CHUNNILAL,
W/O LATE SHRI PREMNARAYAN,
AGED ABOUT 68 YEARS, R/O
VILLAGE PURAMAN, BHAMAN
KUIYA, TEHSIL HUZUR, DISTRICT
BHOPAL (MADHYA PRADESH)
2. KALA BAI D/O LATE SHRI
VEERBHAN, AGED ABOUT 48
YEARS, R/O VILLAGE BHIJAURI,
DISTRICT RAJGARH (MADHYA
PRADESH)
3. BAIJNATI BAI D/O LATE SHRI
VEERBHAN, AGED ABOUT 40
YEARS, R/O VILLAGE
MITTUKHEDI DISTRICT SEHORE
(MADHYA PRADESH)
4. MISRILAL S/O SHRI SUKHRAM,
AGED ABOUT 95 YEARS, R/O
2
W.P. No.12678/2016 and C.R. No.351/2016
RATAN COLONY, BYPASS ROAD,
KAROND, BHOPAL (MADHYA
PRADESH)
THROUGH ITS POWER OF
ATTORNEY HLDER KALURAM S/O
SHRI VEERBHAN, AGED ABOUT 44
YEARS, R/O H.NO.61, VILLAGE
RASLAKHEDI, TEHSIL HUZUR,
DISTRICT BHOPAL (M.P.).
.....PETITIONERS
(BY SHRI ANKIT SAXENA, ADVOCATE )
AND
RAJESH KUMAR JAIN S/O SHRI
SURESH KUMAR JAIN, R/O H.NO. 2,
BEHIND SHRIHOMES CHINAR
WOODLAND, KOLAR ROAD,
BHOPAL (MADHYA PRADESH)
.....RESPONDENT
(BY MS. JAYALAKSHI IYER, ADVOCATE)
CIVIL REVISION No. 351 of 2016
Between:-
RAJESH KUMAR JAIN S/O SHRI
SURESH KUMAR JAIN, HOUSE
NO.2, SHRI HOMES, BEHIND
3
W.P. No.12678/2016 and C.R. No.351/2016
CHINAR WOODLAND,
CHUNABHATTI, KOLAR ROAD,
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY MS. JAYALAKSHI IYER, ADVOCATE)
AND
1. GAJRI BAI D/O SHRI CHUNNILAL
W/O LATE SHRI PREM NARAYAN,
AGED ABOUT 68 YEARS, R/O VILL.
PURAMAN BHAMAN KUIYA, TEH.
HUZUR, DISTT. BHOPAL,
(MADHYA PRADESH)
2. KALA BAI D/O LATE VEERBHAN ,
AGED ABOUT 48 YEARS, R/O VILL.
BHIJOURI, DIST. RAJGARH
(MADHYA PRADESH)
3. BAIJANTI BAI, D/O LATE SHRI
VEERBHAN, AGED ABOUT 40
YEARS, W/O SHRII SURAJ SINGH,
R/O VILLAGE MITTUKHEDI, DIST.
SEHORE (MADHYA PRADESH)
4. MISHRILAL S/O SUKHRAM, AGED
ABOUT 95 YEARS, R/O RATAN
COLONY, BYPASS ROAD,
4
W.P. No.12678/2016 and C.R. No.351/2016
KAROND, BHOPAL (MADHYA
PRADESH)
RESPONDENTS NO.1 TO 4
THROUGH THEIR POWER OF
ATTORNEY HOLDER KALURAM,
S/O SHRI VEERBHAN, AGED
ABOUT 44 YEARS, R/O H.NO.61,
VILLAGE RASLAKHEDI, TEHSIL
HUZUR, DISTRICT BHOPAL (M.P.).
.....RESPONDENTS
(BY SHRI ANKIT SAXENA, ADVOCATE)
-----------------------------------------------------------------------------------------
Reserved on : 09/03/2022
Delivered on: 21/06/2022
------------------------------------------------------------------------------------------
These petitions have come up for hearing on this day, the court passed the
following:
ORDER
1. Petitioners have filed this writ petition challenging order dated
13.07.2016 passed in Civil Suit No.451-A/2015 by 3 rd Additional Judge
Class-I to the Court of 1st Civil Judge Class-I, Bhopal.
2. Petitioners have filed a suit for declaration making a prayer that sale
deed dated 21.03.2011 is null and void as respondent had not paid full
consideration for sale.
W.P. No.12678/2016 and C.R. No.351/2016
3. Respondent filed an application under Order 7 Rule 11 of CPC for
dismissal of civil suit on grounds that suit is barred under Limitation Act,
mandatory provisions of order 1 Rule 3-B of CPC was not followed and
State of M.P. is not made a party in the case, necessary parties were not
impleaded in the case, proper court fees has not been affixed on the plaint.
Plaintiffs/petitioners are stopped under Section 115 of Evidence Act to
challenge registered sale deed dated 21.03.2011 as they have executed the
same, plaintiffs/petitioners does not have any cause of action. Learned Trial
Court vide impugned order dated 13.07.2016 has directed the
petitioners/plaintiffs to do proper valuation and pay proper court fees in
case otherwise, order will be passed under Order 7 Rule 11-C of CPC.
4. Petitioners have challenged the order on the ground that application
under Order 7 Rule 11 of CPC was dismissed and, therefore, further
direction to pay court fees cannot be ordered. Plaintiffs/petitioners have
prayed for relief of declaration simpliciter and, therefore, ad-valorem court
fees is not required to be paid on the suit. Suit was properly valued and
direction given by the trial Court is illegal and same deserves to be set
aside.
5. Respondent has filed revision and also challenged the order passed by
the trial Court on the grounds that there was absence of cause of action and
suit was barred by limitation, therefore, application ought to have been
allowed. Petitioners have indirectly prayed for relief of cancellation of sale
deed which was barred under Limitation Act, there was non-compliance of
Order 1 Rule 3-B of CPC, therefore, suit ought to have been rejected and
W.P. No.12678/2016 and C.R. No.351/2016
made a prayer that application filed by respondent under Order 7 Rule 11 of
CPC be allowed and suit be dismissed.
6. Heard the counsel appearing for petitioners as well as respondent.
7. Learned Trial Court by impugned order held that petitioners/plaintiffs
had not valued the suit according to sale deed and had not paid proper court
fees on it. Trial Court relying on judgment reported in AIR 2014 MP141,
AIR 2014 NOC554, AIR 2012 MP 118 and 2011 (11) MP Weekly Note 118
held that proper court fees has not been paid and directed the petitioners to
pay proper Court fees. Order passed by the trial Court suffers from
infirmity. All the grounds which were raised by respondent for dismissal of
plaint was not considered and no finding is given on said grounds. Trial
Court has only considered the application in proper valuation and deficit
stamp duty on plaint. So far as the finding of trial Court regarding deficit
stamp duty is concerned, there is no infirmity in it. Though plaintiffs have
prayed for declaration of sale deed dated 21.03.2011 to be null and void but
indirectly plaintiffs/petitioners want cancellation of sale deed. Petitioners
had signed the sale deed and had given their consent and sale deed has been
executed by power of attorney holder. It is not the case of petitioner that
power of attorney has not been given and Kaluram has executed sale deed
contrary to authority given to him, therefore, sale deed has been executed
by the petitioners through their power of attorney holder, petitioners want to
avoid the sale deed which will otherwise be binding upon them, therefore,
petitioners are required to value the plaint as per value of property given in
registered sale deed dated 21.03.2011 and they are required to pay ad
W.P. No.12678/2016 and C.R. No.351/2016
valorem court fees, there is no error in order passed by the trial Court in
respect of said issue.
8. Since trial Court has not considered other grounds which were raised
by respondent in his application under Order 7 Rule 11 of CPC and no
finding is given on it, therefore, matter is remanded back to the trial Court
to pass orders on other grounds which are raised by defendant in his
application under Order 7 Rule 11 of CPC.
9. With the aforesaid direction, writ petition as well as civil revision is
disposed off.
10. Certified copy as per rules.
(VISHAL DHAGAT)
JUDGE
sp/-
Digitally signed by SUNIL KUMAR PATEL
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH,
SUNIL KUMAR
ou=HIGH COURT OF MADHYA PRADESH,
postalCode=482001, st=Madhya Pradesh,
2.5.4.20=3ad456309c8cfa67fdf9acdac6949bbc6ea3342f0
2b1af1bdaf3424a04c11d99,
PATEL
pseudonym=EB80E81424E3C3A3FCB5801D65B573419C2
D9C68,
serialNumber=5011B37A3DD5E32019F501F10E878D2F1
18732491B5F40BDC9923237D954365B, cn=SUNIL
KUMAR PATEL
Date: 2022.06.21 18:51:25 +05'30'
