Madhya Pradesh High Court
Smt.Rekha Rani Agrawal vs Ashish Agrawal @ Pintu on 5 January, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 5 th OF JANUARY, 2023
MISC. PETITION No. 3527 of 2020
BETWEEN:-
SMT.REKHA RANI AGRAWAL W/O LATE SHRI NAND
KUMAR AGRAWAL, AGED ABOUT 72 YEARS,
OCCUPATION: HOUSE WIFE R/O H.NO. 1175 NEW 740
SUBHADRA KUMARI CHAUHAN WARD NAPIER TOWN
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI HAREKRISHNA UPADHYAY - ADVOCATE)
AND
1. ASHISH AGRAWAL @ PINTU S/O NARENDRA
KUMAR AGRAWAL R/O H.NO. 1174 NEW 740,
SUBHADRA KUMARI CHAUHAN WARD NAPIER
TOWN JABALPUR (MADHYA PRADESH)
2. SMT. RUCHI AGRAWAL W/O LATE SHRI DEEPAK
AGRAWAL R/O H.NO. 1174 NEW 740, SUBHADRA
KUMARI CHAUHAN WARD NAPIER TOWN
JABALPUR (MADHYA PRADESH)
3. SMT. PREM AGRAWAL W/O SATISHCHANDRA
AGRAWAL, AGED ABOUT 73 YEARS, 21/405 CIVIL
LINES IN FRONT OF AMBEDKAR BHAWAN
RAIPUR (CHHATTISGARH)
4. SMT. RATNA AGRAWAL W/O VISHNU KUMAR
AGRAWAL, AGED ABOUT 69 YEARS, 317 MALA
PRABHA N.G.V KORA MANGALA BANGALORE
(KARNATAKA)
5. SMT. KIRAN AGRAWAL W/O SHRI P.K AGRAWAL,
AGED ABOUT 68 YEARS, H. 30 SECTOR 25
JALVAYU VIHAR NOIDA DISTT. (UTTAR
Signature Not Verified
SAN PRADESH)
6. SMT. MEENA AGRAWAL W/O SHRI RAJKUMAR
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.01.06 18:37:50 IST
AGRAWAL, AGED ABOUT 64 YEARS, 64/562
2
DEMPIAR NAGAR TEH. AND MATHURA (UTTAR
PRADESH)
ON BEHALF OF SR. NO. 3 TO 7 POWER OF
ATTORNEY HOLDER - SHRI ROHIT AGRAWAL,
AGED ABOUT 38 YEARS, SON OF SHRI RAJKUMAR
AGRAWAL, RESIDENT OF 64/562, DEMPIAR
NAGAR, TEHSIL AND DISTRICT MATHURA (UP),
LOCAL ADDRESS 1172 DR. RAVI AGRAWAL KI
GALI, NAPIER TOWN, NEARBY HOME SCIENCE
COLLEGE, JABALPUR (MP).
.....RESPONDENTS
(SHRI SHRI MANOJ KUMAR SANGHI - ADVOCATE FOR THE
RESPONDENT NO.1 AND SHRI ANURAG TIWARI - ADVOCATE FOR
RESPONDENTS NO. 2, 3, 5, 6 & 7)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
This Miscellaneous Petition is filed by the plaintiff under Article 227 of
the Constitution of India, being aggrieved of order dated 14.12.2020
(Annx.P/4), passed by learned 16t h Addl. District Judge, Jabalpur (M.P.), in
Civil Suit No. RCS 626-A/2020, directing the petitioner to pay balance Court
Fees of Rs.1,46,780/-, holding that the suit will not be covered as per the
provisions contained in para 17(iii) of Schedule-II of Court Fees Act, 1870, but
will be governed by the provisions contained in Section 7(iv)(c) of the Court
Fees Act, 1870, because plaintiff has valued different reliefs at Rs.1,00,10,000/-
. Therefore, Court Fees is payable in terms of provisions contained in para 1-A
of Schedule-I to the Court Fees Act, 1870.
2. Learned counsel for the petitioner taking this Court though the plaint and
the relief clause (A) to (F), submits that plaintiff is in possession of both the
properties which are subject matter of the suit, namely, one situated at Napier
Town Jabalpur and another at Andherdeo, Jabalpur and, thus, in a suit for
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.01.06 18:37:50 IST declaration and injunction, where no possession is sought, payment of
advalorem Court Fees is not required. Thus, the trial Court has erred in
directing payment of advalorem Court Fees, which is illegal and arbitrary.
Thus, impugned order be set aside.
3. Reliance is placed on a Single Bench decision of this Court in Smt.
Sabina @ Farida Vs. Mohd. Abdul Wasit (AIR 1997 MP 25)= [1997 (1)
MPLJ 554], to submit that two tests for ascertaining whether the consequential
relief in fact flows from the declaratory relief is as to whether the said
consequential relief can be claimed independently of the declaration as a
substantial relief or not. It is settled law that "if a person is in settled possession,
he cannot be evicted except in accordance with law. Such a person if claims a
declaration of his title and injunction that the defendants be restrained from
interfering with his possession, then relief of injunction is not a consequence of
the declaration because even if the Court is of the opinion that the declaration
can be made in favour of the plaintiff, then too the Court will grant injunction in
favour of the person who is in settled possession. Such a person would be
called upon to value both the reliefs separately and each of the reliefs would be
independent of the other."
4. On the other hand, Shri Anurag Tiwari, learned counsel for respondents N.
2,3, 5, 6 and 7, places reliance on a Division Bench decision of this Court in
State of Madhya Pradesh and another Vs. Jiwanlal Chikotiya and another
(AIR 2005 MP 76)=2004(4) MPHT 497, wherein, it is held that when plaintiff
himself has valued the suit for 1,02,000/- and for the purposes of injunction has
arbitrarily valued the suit at Rs.200/-, he has filed a suit for declaration with
injunction as a consequential relief, therefore, he was bound to pay advalorem
Signature Not Verified
SAN
Court Fees as per valuation of the suit for the relief of injunction. Placing
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.01.06 18:37:50 IST
reliance of this judgment, it is submitted that advalorem Court Fees is payable
as per the valuation.
5. After hearing learned counsel for the parties and going through the record,
when Shri Upadhyay, is asked to show from record that plaintiff is in
possession of the suit property at Napier Town, Jabalpur, Shri Upadhyay is
unable to show anything from record. On the contrary, it is observed by
learned trial Court that claim on the property at Napier Town is based on the
declaration of Will of Smt. Shakuntala Devi to be null and void. Thus, this
relief is dependent on the outcome of the findings of the Court in regard to will
of Smt. Shakuntala Devi.
6. Admittedly, plaintiff is not in possession of the property at Napier Town,
Jabalpur, therefore, he cannot file a suit for injunction without claiming
declaration and possession of said property. Thus, since injunction cannot be
sought in relation to the property at Napier Town, Jabalpur, therefore, even if
the ratio of the law laid down in Smt. Sabina alias Farida (supra) is applied,
plaintiff will be required to pay advalorem Court Fees.
7. Thus, without declaration when relief of injunction is not achievable,
petitioner is liable to pay advalorem Court Fees in terms of the provisions
contained in Section 7(iv)(c) of the Court Fees Act, 1870, inasmuch as, it is
provided that for a declaratory decree with consequential relief where the
consequential relief is dependent on the first, Court Fees is payable according
to the amount at which the relief is valued in the plaint or the memorandum of
appeal. Thus, when examined in this light, there is no illegality in the impugned
order calling for interference in the supervisory jurisdiction of this Court.
Signature Not Verified
SAN
8. Accordingly, this Miscellaneous Petition fails and is dismissed.
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.01.06 18:37:50 IST
(VIVEK AGARWAL)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.01.06 18:37:50 IST
