Madhya Pradesh High Court

Virendra Yadav (Dead) Thr. Lrs. ... vs Parvati Pandey on 20 January, 2023

Author: Maninder S. Bhatti

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 20 th OF JANUARY, 2023
MISC. PETITION No. 5429 of 2019

BETWEEN:-
1. VIRENDRA YADAV (DEAD) THR. LRS. USHA
YADAV W/O LATE VIRENDRA YADAV, AGED
ABOUT 77 YEARS, HOUSE NO.296 GARHA FATAK
JABALPUR (MADHYA PRADESH)

2. MEENU YADAV W/O TARUN YADAV, AGED ABOUT
50 YEARS, HOUSE NO. 296 GARHA FATAK
(MADHYA PRADESH)

3. MONA YADAV W/O RAVINDRA YADAV, AGED
ABOUT 48 YEARS, HOUSE NO. 296 GARHA FATAK
(MADHYA PRADESH)

4. AMAR SINGH YADAV S/O LATE VIRENDRA
YADAV, AGED ABOUT 45 YEARS, HOUSE NO. 296
GARHA FATAK (MADHYA PRADESH)

5. VIMLA YADAV W/O CHANDRABHAN YADAV,
AGED ABOUT 66 YEARS, OPPOSITE BADI
MAHAKALI GARHA FATAK (MADHYA PRADESH)

.....PETITIONER
(BY SHRI PIYUSH GUPTA - ADVOCATE )

AND
1. PARVATI PANDEY W/O LATE LAKHAN LAL
PANDEY, AGED ABOUT 80 YEARS, AGRAWAL
COLONY GARHA ROAD JABALPUR (MADHYA
PRADESH)

2. PRADEEP PANDEY S/O LATE LAKHAN LAL
PANDEY, AGED ABOUT 65 YEARS, AGRAWAL
COLONY GARHA RAOD (MADHYA PRADESH)

3. AMRENDRA PANDEY S/O LATE LAKHAN LAL
PANDEY, AGED ABOUT 61 YEARS, AGRAWAL
COLONY GARHA RAOD (MADHYA PRADESH)
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 1/27/2023
2:30:06 PM
2

4. KALYANI PANDEY D/O LATE LAKHAN LAL
PANDEY, AGED ABOUT 53 YEARS, AGRAWAL
COLONY GARHA RAOD (MADHYA PRADESH)

5. SATYAVATI PANDEY W/O SUNDAR LAL PANDEY,
AGED ABOUT 76 YEARS, AGRAWAL COLONY
GARHA RAOD (MADHYA PRADESH)

6. SUSHMA PANDEY D/O SUNDAR LAL PANDEY,
AGED ABOUT 50 YEARS, AGRAWAL COLONY
GARHA RAOD (MADHYA PRADESH)

7. SHARAD PANDEY S/O SUNDAR LAL PANDEY,
AGED ABOUT 48 YEARS, AGRAWAL COLONY
GARHA RAOD (MADHYA PRADESH)

8. KAVITA PANDEY D/O SUNDAR LAL PANDEY,
AGED ABOUT 46 YEARS, AGRAWAL COLONY
GARHA RAOD (MADHYA PRADESH)

9. SANJAY PANDEY S/O SUNDAR LAL PANDEY, AGED
ABOUT 43 YEARS, AGRAWAL COLONY GARHA
RAOD (MADHYA PRADESH)

.....RESPONDENTS
(BY MS. NEELAM GOEL - FOR RESPONDENTS )

This petition coming on for admission this day, th e court passed the
following:
ORDER

Challenge in this petition is to the order dated 04-9-2019, by which an application submitted by defendants before the trial Court under Order 7 Rule 11 of the Civil Procedure Code, 1908 (for short "the CPC") has been allowed and the present petitioners/plaintiffs have been directed to pay deficit Court fees of Rs.1,47,500/-, failing which it is observed that the plaint shall be rejected in terms of the provisions of Order 7 Rule 11(c) of the CPC.

2. Learned counsel for petitioners contends that in the present case, plaintiffs have filed a suit seeking declaration of the sale-deed dated 21-4-1960, as null and void. It is contended by the learned counsel that other prayer in the Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 1/27/2023 2:30:06 PM

civil suit as regards permanent injunction while restraining the respondents to interfere with the possession of the present plaintiffs.

3. It is strenuously urged by the learned counsel for petitioners that the present petitioners/plaintiffs were not party to the sale-deed and they are not executants thereof. Therefore, they are not required to pay the Court fees. It is contended by the learned counsel for petitioners/plaintiffs that they are in possession of the property in question and there is specific averment in para 5 of the plaint.

It is further contended by the learned counsel that on the basis of the sale-deed the suit was valued at Rs.20050000/- and it does not mean that present plaintiffs/petitioners are required to pay Court fees in terms of Section 7(iv)(c) of the Court Fees Act, 1870 [hereinafter referred to as "the Act"].

4. Thus, learned counsel for petitioners submits that the impugned order by which the Court has directed the petitioners to pay the deficit court fees, deserves to be quashed, in view of the decisions of this court rendered in the cases of Gomti Prasad and another vs. Mahesh Singh and others, 2017 (3) MPLJ 202 and Smt. Gangesh Kumari Kak vs. State of M.P. and others, [W.P. No.4995/2016, dated 24-01-2018].

5. Per contra, learned counsel for respondents submits that in the present case, as there is a dispute as regards sale-deed, the plaintiffs were

required to pay Court fees in terms of the provisions of the Court Fees Act. It is vehemently argued by the learned counsel for respondents that the plaintiffs themselves submitted in the plaint that valuation of the suit property is Rs.20050000/- and accordingly they were required to pay Court fees in terms of the Schedule I-A of the Court Fees Act.

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 1/27/2023 2:30:06 PM

6. It is contended by learned counsel for respondents that the trial Court did not commit any error, while allowing the application submitted by respondents and accordingly, learned counsel for respondents while placing reliance on the decisions rendered in the cases of Shamsher Singh vs. Rajinder Prashad and others, (1973) 2 SCC 524; Kunti Devi w.o Ramdas vs. Roshanlal s/o Ramdas, 1987 MPLJ 25; Mohammad Jameel Khan and others vs. Miththulal Khushal Singh Gujar and others, 1999 (1) MPLJ 37; Shyamacharan Paul and another vs. M/s Roopali Promoters and Construction & ors., ILR [2009] MP 1595; and Israt Jahan (Smt.) vs. Rajia Begum and others, ILR [2009] MP 3107, submits that if a son claims a declaration that a mortgage decree obtained against his father is not binding on him and asks for setting aside of such a decree, as a consequence of declaration claim, then he is required to pay Court fees in terms of Section 7(iv)

7. Heard submissions and perused the records.

8. In the present case, the plaint reflects that the prayer in the plaint is to the effect that the sale-deed dated 21-4-1960 which was executed by the father of the plaintiff No.1, Late Ramnath Yadav, be declared as null and void. The plaintiffs undisputedly are not executants of the sale-deed and it is also important that the plaintiffs have not prayed for any consequential relief in civil suit. So far as possession is concerned, plaintiffs have stated in para 5 of the plaint that, they are in possession of the property in question.

9. Thus, in the present case, prayer is to declare the sale-deed dated 21-4-1960 as null and void and not for any consequential relief. At this juncture it is useful to refer the judgment of the apex Court rendered in the case of

Signature Not Verified Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors. reported in AIR Signed by: AJAY KUMAR CHATURVEDI Signing time: 1/27/2023 2:30:06 PM

2010 SC 2807), wherein it is held as under :

" 6 . 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. Section 7(iv)(c) provides that in suits for a declaratory Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 1/27/2023 2:30:06 PM

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 wh e re 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."

[Empahsis supplied]

10. A perusal of the aforesaid pronouncement of law, reflects that the plaintiffs in the present case have specifically pleaded that they are in possession of the property in question, and there is no consequential relief regarding possession.

Relief for permanent injunction cannot be treated as a consequential relief and in fact, is substantial relief. Therefore, as the plaintiffs were not party to the sale-deed, which is in dispute in the civil suit, provisions of Section 7(iv)(c) of

the Act could not have been pressed into operation.

11. In the considered view of this Court, plaintiffs were not required to pay the advolarem Court fees in view of the aforesaid enunciation of law.

12. The decisions relied upon by respondents in the case of Shamsher Singh vs. Rajinder Prashad and others (supra) is not a decision which pertains to a case, where the sale-deed is questioned, therefore, the same is distinguishable.

13. The judgment delivered in Mohammad Jameel Khan and others vs. Miththulal Khushal Singh Gujar and others (supra) is also distinguishable, inasmuch as in the said case the plaintiff alleged that his thumb impression was obtained fraudulently on the sale-deed. Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 1/27/2023 2:30:06 PM

Other decisions relied upon by the learned counsel in the cases of Kunti Devi w.o Ramdas vs. Roshanlal s/o Ramdas (supra) and Shyamacharan Paul and another vs. M/s Roopali Promoters and Construction & ors. (supra) are, if considered in the light of subsequent decision of the Apex Court, the same would reveal that in absence of any prayer for consequential relief of possession, plaintiffs were not required to pay advolarem Court fees.

14. Accordingly, the impugned order dated 4-9-2019 (Annexure- P/1) stands quashed. Trial Court is directed to proceed with the trial from the stage, it was stayed by this Court by way of an interlocutory order.

16. With the aforesaid observation and direction, the misc. petition stands allowed.

MANINDER S. BHATTI) JUDGE ac

Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 1/27/2023 2:30:06 PM