Madhya Pradesh High Court
Smt. Krishnabai vs Sureshchand on 2 November, 2022
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 2nd OF NOVEMBER, 2022
MISC. PETITION No. 3690 of 2022
BETWEEN:-
1. SMT. KRISHNABAI W/O GOPAL KRISHNA, AGED
ABOUT 45 YEARS, UMMMEDPURA TEHSIL
JAWAD DISTRICT NEEMUCH (MADHYA
PRADESH)
2. GOPALKRISHNA DECEASED THR. LRS.
SUDHEER KUMAR S/O LATE GOPAL KRISHNA,
AGED ABOUT 34 YEARS, OCCUPATION:
BUSINESS UMMEDPURA, TEHSIL JAWAD,
DISTRICT NEEMUCH (MADHYA PRADESH)
3. GOPALKRISHNA DECEASED THR. LRS.
CHANDA D/O LATE GOPAL KRISHNA W/O
MUKESH BADIKA, AGED ABOUT 32 YEARS,
AKOLA TEHSIL KOTDI DISTRICT BHILWARA
(RAJASTHAN)
4. GOPALKRISHNA DECEASED THR. LRS. ARTI
D/O LATE GOPAL KRISHNA W/O RAJENDRA
JOSHI, AGED ABOUT 30 YEARS, SANKHLA
TEHSIL KOTDI DISTRICT BHILWARA
(RAJASTHAN)
5. GOPALKRISHNA DECEASED THR. LRS. AVTAR
S/O LATE GOPAL KRISHNA, AGED ABOUT 26
YEARS, OCCUPATION: BUSINESS UMMEDPURA,
TEHSIL JAWAD, DISTRICT NEEMUCH (MADHYA
PRADESH)
6. VINOD KUMAR S/O LATE NANALAL, AGED
ABOUT 42 YEARS, OCCUPATION: HOTEL
BUSINESS UMMEDPURA AT PRESENT
RAMDEVJI KA CHANDERIYA, IN FRONT OF
BIRLA SHCOOL, CHITTORGARH (RAJASTHAN)
.....PETITIONERS
Signature Not VerifiedDigitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.11.02
(SHRI MANGESH BHACHAWAT, LEARNED COUNSEL FOR THE
16:52:08 IST
PETITIONERS)
AND
2
1. SURESHCHAND S/O LATE NANALAL, AGED
ABOUT 45 YEARS, OCCUPATION: HOTEL
BUSINESS PATEL ROAD, JAWAD DISTRICT
NEEMUCH (MADHYA PRADESH)
2. SMT. TARABAI DEAD THR. LRS. SAMPATBAI
D/O NANALAL W/O GOPAL JAJPURA SANGANER
DISTRICT BHILWARA (RAJASTHAN)
.....RESPONDENTS
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
This is a petition filed under Article 227 of the Constitution of India being
aggrieved by the order dated 23.06.2022 passed in Civil Regular Appeal
No.21/2017 by District Judge, Jawad, District Neemuch whereby the petitioners
have been directed to pay advalorem court fee.
The plaintiff/respondent has filed the instant suit for declaration,
consequential relief of cancellation of sale deed in question and the perpetual
injunction against the defendants/petitioners on the ground that Tarabai had
thrown this property into the common hotchpotch and thus it had become joint
Hindu Family property of her husband Shri Nanalal.
The case of the respondent was that in a partition of the joint hindu family
of Nanalal, disputed house had fallen to his share and, therefore, the sale made
by Tarabai in favour of her daughter-in-law defendant petitioner Krishnabai is
null and void and not binding on her. The plaintiff has valued the suit for
declaration to the tune of Rs.4,000/- and for injunction Rs.800/- and has paid
fixed court fees of Rs.500/- for declaration and Rs.100/- for injunction. Thus, in
Signature Not VerifiedDigitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.11.02
16:52:08 IST
all the plaintiff respondent has paid the court fees of Rs.600/- on the plaint.
The petitioners defendants filed the written statement and raised an
objection with respect to the valuation and the court fees on the ground that
since the plaintiff has asked for relief of cancellation of the sale deed, therefore,
he was required to pay advalorem court fee on the sale consideration of
Rs.7,50,000/-. The trial Court decreed the suit and while decreeing the suit,
issue No.5 held that the plaintiff respondent has not properly valued the suit and
the court fees is also not adequately paid. The trial Court ordered that plaintiff is
required to pay the advalorem court fees of Rs.90,000/- on the sale
consideration of Rs.7,50,000/-. The trial Court directed for registration of MJC
for recovery of the court fee amount of Rs.90,000/- from the plaintiff
respondent.
The respondent has challenged the judgment and decree of the trial Court
by filing an appeal challenging the finding on issue No. 5 for payment of court
fee and the said appeal is pending before the First District Judge, Jawad. The
petitioners also filed first appeal being aggrieved by the judgment and decree
before the First District Judge, Jawad. The petitioners have paid court fee of
Rs.600/- only on the memo of appeal. The appellate Court passed an order on
02.05.2022 directing the petitioners to pay Rs.90,000/- court fee on the appeal
memo because as per the finding on issue No. 5, the plaintiff was required to
pay advalorem court fee.
Counsel for the petitioners submits that on the question of court fee, the
appeal filed by the respondent/plaintiff is pending before the appellate Court,
therefore, the appellate Court could not have directed the petitioners to pay
advalorem court fee in this appeal.
Signature Not VerifiedDigitally signed by
Admittedly, there is a decree against the petitioners and the petitioners
SAN SOUMYA RANJAN
DALAI
have preferred an appeal against the said judgment and decree. In the said
Date: 2022.11.02
16:52:08 IST
decree, the plaintiff has been directed to pay advalorem court fee, therefore, the
trial Court has rightly directed the petitioners to pay advalorem court fee which
has been directed to be paid by the plaintiff also.
I do not find any illegality in the order impugned, however, it is observed
that the court fee deposited by the petitioners shall be subject to final outcome
of the appeal filed by the respondent plaintiff in respect of issue No. 5 on
payment of advalorem court fee. In case if the appeal filed by the respondent
plaintiff against the court fee is allowed, the court fee paid by the petitioners in
the appeal shall liable to be refunded to him in accordance with the law.
With the aforesaid observation, the present petition is disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.11.02
16:52:08 IST
