Madhya Pradesh High Court
Abdul Husain vs Zakir Husain on 2 March, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 2 nd OF MARCH, 2023
CIVIL REVISION No. 290 of 2015
BETWEEN:-
ABDUL HUSAIN S/O ALI HUSAIN, AGED ABOUT 65
YEARS, OCCUPATION: BUSINESS 67 NOORANI NAGAR
DHAR ROAD INDORE (MADHYA PRADESH)
.....APPLICANT
(SHRI SAMEER ANANT ATHAWALE-ADVOCATE)
AND
1. ZAKIR HUSAIN S/O LATE FAKHRUDDIN, AGED
ABOUT 61 YEARS, OCCUPATION: BUSINESS 68
NOORANI NAGAR DHAR ROAD INDORE
(MADHYA PRADESH)
2. QUAID JOHAR S/O ABDUL HUSSAIN, AGED ABOUT
42 YEARS, OCCUPATION: ADVOCATE 67,NOORANI
NAGAR DHAR ROAD, 25, RESHAM WALA LANE
(MADHYA PRADESH)
.....RESPONDENTS
(MS. REKHA SHRIVASTAVA-ADVOCATE)
Th is revision coming on for hearing this day, th e court passed the
following:
ORDER
With the consent of both the parties, the matter heard finally.
The present revision under Section 115 of CPC, 1908 has been filed
being aggrieved by the order dated 22.09.2015, passed by Fifteen Civil Judge,
Class-II, Indore in Civil Suit No. 29-A/2014.
While hearing the revision on admission and interim relief, this Court vide
Signature Not Verified
order dated 02.11.2015 had passed the following order :-
Signed by: VARSHA DUBEY
Signing time: 3/3/2023
3:59:18 PM
" Heard on the question of admission.
During the course of arguments, it has been very fairly
submitted by the learned counsel for the petitioner that in respect of
question of res judicata, the same cannot be decided on an
application under Order 7 Rule 11 of the Civil Procedure Code,
1908, and therefore, he is not pressing this civil revision on that
question; and is pressing this civil revision only on the question
regarding payment of ad valorem Court Fee.
Considering the aforesaid, let notice on merit be issued to the
respondents on payment of process fee within a week; returnable
within six weeks.
No case for grant of stay, staying further proceedings in Civil
Suit No.29-A/2014 pending before the XV Civil Judge, Class-II,
Indore, as prayed for is made out.
IA No.8058/2015, an application for stay, is accordingly
rejected."
From the aforesaid order, it is clear that the revision has been entertained
only on the question regarding payment of ad valorem Court fees.
Brief facts of the case are that the respondent No. 1 filed a suit against
the applicant and respondent No. 2 seeking declaration of title to the effect that
he is the exclusive owner and is in possession of H. Ho. 68, Noorani Nagar,
Dhar Road, Indore and for injunction restraining applicant and respondent No.2
from raising further constructions and for removing 4 inch wall constructed, by
way of mandatory injunction. Two suits were filed for declaration of the title on
the same property i.e. H. No. 68, Noorani Nagar, Dhar Road, Indore. One by
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 3/3/2023
3:59:18 PM
the plaintiff/respondent No. 1 against one Durraya Bai bearing Civil Suit No. 4-
A/2007 and the second suit was filed by the Durraya Bai against respondent
No.1 bearing Civil Suit No. 26-A/2006. Both the suits were decided vide
judgment dated 03.11.2007. Suit filed by the Durraya Bai was allowed whereas
suit filed by the respondent No. 1 was dismissed, accordingly, the decree of
declaration of title was passed in favour of Durraya Bai.
In view of the aforesaid there is no dispute that there is a decree against
plaintiff for declaration of title and still the present suit has been filed seeking
declaration by suppressing the details of previous suits.
Learned counsel for the applicant contended that the order passed by
the Trial Court is illegal, perverse and against the settled principles of law, thus,
deserves to be set aside. So far as, Court fee is concerned, Section 7(IV)(d) is
attracted in view of the fact that the plaintiff has sought declaration of title,
permanent injunction and mandatory injunction for removal of construction
whereas relief as mentioned in Article 17 Scheduled (2) of the Court Fees Act
(in short "of the Act") is concerned, the same attracts fixed Court Fees. In the
present case, plaintiff has been asked for multiple reliefs including consequential
reliefs, therefore, ad valorem Court fees has to be paid on valuation of the suit.
The learned Trial Court erred in coming to the conclusion that the plaintiff is
required to pay fixed Court fee. On perusal of the plaint as well as relief
claimed, it can be seen that plaintiff has prayed for multiple reliefs and therefore,
the provisions of Section 7(IV)(c) gets attracted in the facts and circumstance
of the present case. The order passed by the learned Trial Court, so far as it
relates to Court fees is concerned, deserves to be set aside.
On the other hand, learned counsel for the respondent contended that the
Trial Court has rightly come to the conclusion, therefore, no interference is
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 3/3/2023
3:59:18 PM
called for and this revision deserves to be dismissed.
On perusal of the plaint and relief claimed, it is seen that the suit for
declaration of title, permanent injunction and mandatory injunction for removal
of construction, has been filed which does not fall under Article 17 Schedule
11 of the Act so as to attract its Court fees. The learned Trial Court has erred in
coming to the conclusion that only the fixed Court fees has to be paid,
accordingly, the order impugned dated 22.09.2015, passed in Civil Suit No. 29-
A/2014, so far as it relates to the Court fees, is hereby set aside. The plaintiff is
directed to pay ad valorem Court fees on the valuation of the suit according to
the Section 7(iv)(c) of the Act. Interim order dated 14.02.2017, is hereby
vacated.
Learned Trial Court is directed to proceed in the matter and decide the
same in accordance with law, as expeditiously as possible.
(S. A. DHARMADHIKARI)
JUDGE
VD
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 3/3/2023
3:59:18 PM
