Madhya Pradesh High Court
Rambabu Joshi vs Vakeel Khan on 26 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 26th OF MARCH, 2025
MISC. PETITION No. 6901 of 2024
RAMBABU JOSHI
Versus
VAKEEL KHAN
Appearance:
Shri Bhupendra Singh Dhakad - Advocate for the petitioner.
Shri Mahesh Goyal - Advocate for respondent [R-1].
ORDER
1. The present petition under Article 227 of the Constitution is
preferred against the order dated 10.08.2024 passed by 1st Civil
Judge Senior Division, District Morena, M.P. in RSA/257/2023
whereby while allowing the application under Order 7 Rule 11
read with Section 151 of CPC preferred by present
respondent/defendant the petitioner/plaintiff was directed to pay
ad-valorem court fees on his plaint.
2. Short facts of the case are that the petitioner-plaintiff filed a
suit for declaration of sale deed dated 20.08.2020 as a mortgage
deed and a temporary injunction against the present
respondent/defendant. In the plaint, it has been alleged that on
18.04.1996 he purchased a land bearing survey no. 2382 through a
registered sale deed from one Maniram Sharma and thereafter had
constructed a house. It was further pleaded in the plaint that since
the plaintiff was in dire need of money for his family, therefore, he
borrowed Rs.8,00,000/- on 20.08.2020 for three years from
respondent at an interest on 1.5 per paise per month. The
petitioner-plaintiff being illiterate and the respondent taking
advantage of his illiteracy instead of executing a mortgage deed
fraudulently got executed a sale deed and got it registered at the
office of Sub-Registrar Morena and on the same day he executed a
sale agreement before the notary. On 20.08.2023 the petitioner
returned the borrowed amount along with interest and because of
mutual trust he didn't ask for any receipt against the said deposit
but the respondent-defendant denied accepting the borrowed
amount returned along with interest and refused to release the
mortgaged property and as later on he tried to sell the disputed
property, the present suit came to be filed after giving a legal
notice to the respondent.
3. The plaintiff had valued his suit at Rs.8,00,000/- (eight lakh
rupees) for declaration and had paid a fixed court fees of Rs.
1000/-and further had paid Rs.120/- for relief of injunction. Thus
had paid a total amount of Rs.1120/- .
4. After service of notice, present respondent/defendant
tendered his appearance and filed an application under Order 7
rule 11 read with section 151 of CPC objecting to the
maintainability of the plaint on the basis of non-payment of ad-
valorem court fees. The said application was allowed by the
learned trial Court vide order dated 10.08.2024 which is impugned
herein and directed the petitioner-plaintiff to pay ad valorem court
fees on the valuation of plaint. Thus being aggrieved the present
petition has been filed.
5. Learned counsel for the petitioner while referring to Clause
17 (iii) of Schedule II of the Court fees Act, 1870 had argued that
since the suit was to obtain a declaratory decree with no
consequential relief, therefore, the petitioner-plaintiff was only
liable to pay fixed court fees over the plaint valuation and not ad
valorem court fees as directed by the learned trial Court.
Therefore, the impugned order suffers from perversity and
illegality, thus, is liable to be set aside.
6. It was further argued that the learned trial Court had
committed gross illegality in holding the petitioner liable to pay ad
valorem court fees on valuation of the suit when the
petitioner/plaintiff was only seeking relief of declaration of the
sale deed in question to be a simple mortgage deed and also had
not considered the fact that the possession of the property was
never transferred to the respondent/defendant but treating the said
document to be a sale deed ad valorem court fees was directed to
be paid, which is not sustainable. On the basis of the aforesaid
arguments, it is submitted that the present petition deserves to be
allowed and the impugned order whereby the petitioner has been
directed to pay ad valorem court fees over the plaint valuation be
set aside.
7. On the contrary, learned counsel for respondent Shri
Mahesh Goyal by placing reliance in the matter of Rajpal Singh
vs. Dilip Anjana and other reported in 2024 (3) MPLJ 605 has
argued that when admittedly the petitioner-plaintiff was an
executant of the sale deed which he is seeking declaration for
treating it to be a mortgage deed and is trying to avoid the said
sale deed it can be said that in a way he is intending to get the said
sale deed declared void. Further since the sale deed executed by
the petitioner/plaintiff bears his signatures and the sale
consideration is clearly mentioned therein, hence to avoid the sale
deed, the petitioner/plaintiff is required to get it declared voidable
and further for that the plaintiff has to pay ad valorem court fee as
held by the Apex Court in the matter of Suhrid Singh alias
Sardool Singh vs. Randhir Singh and others reported in 2010
(12) SCC 112.
8. It is further argued that from perusal of the reliefs, it can be
seen that apart from declaration the petitioner/plaintiff has also
sought injunction which definitely would not make the case
covered under Clause 17(iii) of Schedule II of Stamp Act as the
suit was not simplictor for obtaining declaratory decree. On the
basis of the aforesaid, arguments, it is submitted that the present
petition deserves to be dismissed and no interference is required to
be made in the impugned order.
9. After hearing the rival contentions and going through the
record, this Court finds that the petitioner/plaintiff has sought
following reliefs in the suit:-
**v- यहक ] वद पक म पत वद ववरदव इस आशय घषण जर जव
थ थथ रजज० वव यपत ददन'क 20.08.2020 ववकयपत न ह र सद व'ध
ववलख ह, और वद दवर सप 'ण
/. व'ध धनरशश पत वद अद क य जन रण
पत वद वदगस भवन ब'ध स मक 6 र।
c- यहक पत वद ववरदध इस आशय असथई तनषधज जर जव क
पत वद वदगस भवन अनयत ववकय न र एव' वद आथधपतय म क स> प र
हस कप न सवय' र और न अनय क स> स रव ।
स- यहक अनय नययथ? सहय ज वद दह म ह पत वद स ददलय> जव।
द- यहक इस वद सप ' .ण/ वयय वद पत वद स ददलय> जव।**
10. So far as first relief is concerned, the declaration has been
sought with regard to sale deed dated 20.08.2020 for declaring it
to be a mortgage deed and not a sale deed and the second relief is
with regard to granting injunction against the
respondent/defendant for not to sell the property and create any
third party rights and also not to create any hindrance in his
possession.
11. From the reliefs as prayed in the plaint, it could be seen that
it is not a simplictor suit for declaration rather as a consequential
relief injunction has also been prayed. Otherwise also the plaintiff
wants to avoid the sale deed which has been executed in favour of
the present respondent/defendant. Admittedly, the sale deed was
executed by petitioner-plaintiff himself which in the light of the
judgment of the Apex Court in the matter of Suhrid Singh alias
Sardool Singh (supra) would make him liable to pay ad valorem
as an executant of the sale deed since he is trying to avoid the said
sale. Therefore, on both accounts, this Court finds that no illegality
has been committed by the learned trial Court in allowing the
application.
12. Accordingly, the present petition being sans merit, is hereby
dismissed.
(MILIND RAMESH PHADKE)
JUDGE
VAN
VANDAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR, ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR,
2.5.4.20=28633918296af0b3fa82b31b23b0847972
8746dc68b10fd53e8bb396b58dcf57,
A VERMA
postalCode=474001, st=Madhya Pradesh,
serialNumber=A880B748893B41B1DA855946D5D
C7BDE46EFE4D9A9ED20D015BEED2F999C9F8F,
cn=VANDANA VERMA
Date: 2025.03.28 18:23:07 +05'30'
