Madhya Pradesh High Court
Sanjiv Maheshwari vs Sunita Malviya on 3 May, 2023
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
ON THE 3 rd OF MAY, 2023
CIVIL REVISION No. 462 of 2016
BETWEEN:-
SANJIV MAHESHWARI S/O SHRI PRAFUL KUMAR
MAHESHWARI, AGED ABOUT 50 YEARS, E-3/22, ARERA
COLONY TEHSIL HUZUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AJAY GUPTA - SENIOR ADVOCATE WITH SHRI RAVEEV
MISHRA - ADVOCATE )
AND
1. SUNITA MALVIYA W/O SHRI ARJUN MALVIYA,
AGED ABOUT 38 YEARS, VILLAGE BUDHNI
TEHSIL BUDHNI (MADHYA PRADESH)
2. SATISH KUMAR VERMA S/O SHRI SARJU PRASAD
V E R M A R/O 518, EM-2C SECTOR (MADHYA
PRADESH)
3. SANJIV MAHESHWARI S/O P.K. MAHESHWARI
R/O 7, SHIV SANGAM NAGAR KHAJURI KALAN
(MADHYA PRADESH)
4. COLLECTOR THE STATE OF MADHYA PRADESH
SEHORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SATYAM AGRAWAL - ADVOCATE FOR THE RESPONDENT NOS. 1
TO 3 AND MS. SARASWATI BADGAIYA - PANEL LAWYER FOR THE
RESPONDENT NO.4/STATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
This civil revision under Section 115 of the Civil Procedure Code, 1908,
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 5/4/2023
4:52:35 PM
h a s been preferred by the plaintiff / applicant challenging the order dated
06.10.2016 passed by learned Second Additional District Judge, Nasrullaganj,
District Senore, in Regular Civil Suit No. 7-A/2016, whereby learned Court
below by allowing the defendant 1's application under Order 7 Rule 11 C.P.C.,
has directed the plaintiff to pay requisite ad valorem Court fee on valuation of
the suit property.
2. Brief facts giving rise to the present petition are that the applicant as
plaintiff has filed a civil suit for declaration and for grant of permanent
injunction seeking a declaration that the sale deed dated 7.8.2014 is void ab
initio as it has been executed by the persons having no right or title. The suit is
also filed on the fact that the plaintiff is the original owner and in possession of
his agricultural land comprising in Khasra no. 44/5, area 20 acres situated at
village Pandado, Patwari Halka No.13, Tahsil Budni, District Sehore (MP). The
said land was purchased by the plaintiff vide registered sale deed dated
29.03.1986. In the month of September, 2014 the applicant / plaintiff received a
notice from the Court of Tahsildar, Budni of Case No.29/A-6/13-14 for
appearance before the Tahsildar Court on 12.09.2014. This case was filed by
respondent / defendant no. 1 for mutation of suit land. On 12.09.2014 the
applicant appeared before the Tahsildar, Budni, he was shocked to see that
some fraudster defendant no. 3 had impersonated himself as Sanjeev
Maheshwari and had executed a forged power of attorney in favour of
defendant no. 2, and defendant no. 2 / respondent no. 2 on the strength of such
forged power of attorney illegally executed one sale deed dated 7.8.2014 in
favour of defendant no.1.
3 . The defendants were served. The defendant no.1 by filing an
application under Order VII Rule 11 of CPC has raised an objection in respect
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 5/4/2023
4:52:35 PM
o f maintainability of the suit and a prayer was also made for issuance of a
direction to the plaintiff to pay the ad valorem court fee as per the market value
of the suit property.
4. The plaintiff filed reply to the said application contending therein that
the plaintiff has neither executed any sale deed in favour of defendant no.1 nor
he is signatory of the sale deed, therefore, he is bound to pay the fixed court
fees and has presented the plaint on a fixed court fee of Rs.2000/- as per
Article 17 (III) of the Schedule of the Court Fees Act, 1870.
5 . However, the trial Court by the impugned order has decided the
objection raised by the defendant no.1 and directed the plaintiff to pay ad
valorem court fee.
6. Learned counsel for the plaintiff has assailed the order of the trial
court by contending that the sale deed regarding which declaration is sought has
been executed by the defendants and not by the plaintiff. Further, the persons
executing power of attorney impersonating himself as Sanjeev Maheshwari was
a fraud and thus, the sale deed executed on the strength of such forged power
of attorney is also void and illegal and for such declaration, only fixed court fee
is required to be paid as the plaintiff was not a party to the transaction sought to
be declared void. Further, the trial court failed to appreciate that the photograph
pasted on the forged power of attorney of the person showing himself to be
executor was different than that of the applicant / plaintiff. To bolster his
submission on all these grounds, reliance has been placed on the judgment of
this Court in the matter of Saya Jeet v. Balle Singh @ Balram and others,
2015 (1) JLJ. Hence, the impugned order be quashed.
7. Per contra, learned counsel for the respondents no.1 to 3 has argued
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 5/4/2023
4:52:35 PM
before this court that the plaintiff has rightly been directed to pay ad valorem
court fee. Hence, the petition be dismissed.
8. Heard learned counsel for the parties at length and perused the
impugned order and the record.
9 . This court has carefully gone through the plaint as well as the
impugned order passed by the trial Court. It is settled principle that application
preferred under Order VII, Rule 11 C.P.C., has to be decided on the basis of
averments made in the plaint and not on the basis of material produced by the
defendants either in the written statements or on the application under Order VII
Rule 11, CPC. On a plain reading of the plaint averments it is gathered that the
plaintiff has specifically asserted in the plaint that the sale deed regarding which
declaration is sought has been executed by the defendants and not by the
plaintiff. The plaintiff was not a party to the transaction sought to be declared
void and also was not the signatory to the said sale deed and the said sale deed
is a forged document. On allegation that the document is forged and fabricated,
as such the document in question is a misrepresentation of fraud as regard its
character as well as its contents and therefore, is void document. Hence, the
plaintiff is required to pay fix court fees and not the ad valorem court fees for
the substantive relief of declaration sought.
10. It is significant to mention here that during the course of the
arguments, learned counsel for the plaintiff / applicant has fairly contended that
if at any stage of the evidence the trial Court comes to the conclusion that the
signature on the sale deed in question is found to have been affixed / made by
the plaintiff / applicant, then in such circumstances, the applicant / plaintiff is
ready to pay the court fees as per the valuation of the suit property.
11. Accordingly, taking into consideration the principles laid down in the
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 5/4/2023
4:52:35 PM
aforesaid judgment cited by learned counsel for the plaintiff, looking to the facts
and circumstances of the present case, this court on the conspectus of the
aforesaid discussion is inclined to allow this petition. Hence, this petition is
allowed and the impugned order dated 6.10.2016 is hereby set-aside.
12. It is also observed that if at any stage of the evidence the trial Court
comes to the conclusion that the signature on the sale deed in question is found
to have been made by the plaintiff / applicant, then the trial Court before passing
decree either in favour of the plaintiff or in favour of the defendants, as the case
may be, shall direct the plaintiff to pay the ad valorem court fees on valuation of
the suit property.
13. Trial court shall decide the suit as per law.
14. Interim relief, if any, granted earlier, stands vacated.
(ARUN KUMAR SHARMA)
JUDGE
JP
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 5/4/2023
4:52:35 PM
