Rajasthan High Court

Mrs. Gokul Devi D/O Sh. Nandram W/O ... vs Hanuman Sahay S/O Nandram on 23 November, 2021

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 13045/2021

Mrs. Gokul Devi D/o Sh. Nandram W/o Kanhaiya Lal
                                                                  ----Petitioner
                                   Versus
Hanuman Sahay S/o Nandram
                                                                ----Respondent

For Petitioner(s) : Mr. Dhruv Tailor.

For Respondent(s) :

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

23/11/2021

Counsel for the petitioner submits that the issue involved in

this writ petition has been considered and decided by the Co-

ordinate Bench of this court in the matter of Kedar Agarwal &

Ors Vs. Rajkumar Agarwal & Ors. (S.B. Civil Writ Petition

No.7484/2017) wherein on 03.09.2021 following order was

passed:-

"Under challenge in this writ petition is the order dated 19.04.2017 whereby, the Court of learned Additional District Judge No.20, Jaipur Metropolitan Headquarter, Chomu has, while partly allowing the application filed by the respondents-defendants No.11 & 12 under Order 7 Rule 11 CPC, directed the petitioners-plaintiffs to pay Court fee as per Section 24(b) of the Rajasthan Court Fees and Suits Valuation Act, 1961 (for short "the Act of 1961").

The facts in brief are that the petitioners-

plaintiffs filed a suit for partition, declaration to the effect that the three sale deeds executed by the defendants No.1 to 7 in favour of defendants No.8 to 10 are null and void against their rights, mesne profit and permanent injunction. An application under Order 7 Rule 11 CPC came to be filed by the defendants No.11 &

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12 with the averments that the plaintiffs were not in possession of the property in question, no cause of action has arisen to them and the Court fee paid was insufficient. The aforesaid application has partly been allowed by the learned trial Court vide its order dated 19.04.2017. Assailing the order dated 19.04.2017, learned counsel for the petitioners contended that being stranger to the sale deeds, they were not required to pay Court fee on market value of the property and, as a matter of fact, provisions of Section 24(e) were applicable in the present case and not of Section 24 (b) of the Act of 1961 and the Court fee paid by them was sufficient. Learned counsel relied upon the judgment of the Hon'ble Apex Court of India in case of Suhrid Singh @ Sardool Singh versus Randhir Singh & Ors. reported in 2010 DNJ (SC) 632 and judgment of a Coordinate Bench of this Court in case of Jagdish Sahu versus Sonu reported in 2017 (3) WLC (Raj.) 65.

Per contra, Mr. Sudesh Bansal, learned counsel for the respondents supporting the order impugned submitted that since the plaintiffs prayed for decree of declaration with consequential relief of injunction, learned trial Court has committed no error in directing the plaintiffs to pay Court fee in terms of Section 24 (b) of the Act of 196. Learned counsel for the respondents relied upon a judgment of the Hon'ble Apex Court of India in case of J. Vasanthi & Ors. Versus N. Ramani Kanthammal (dead) represented by Legal Representatives & Ors. reported in (2017) 11 Supreme Court Cases 852 in support of his submissions. Heard learned counsel for the parties and perused the record.

The only question which arises for consideration of this Court is as to whether the provisions of Section 24(b) of the Act of 1961 or the provisions of Section 24(e) of the Act of 1961 are attracted in the present case wherein, the petitioners have sought decree of declaration qua the three sale deeds to be null and void against their rights. Undisputably, the petitioners are not parties to the sale deeds. The Hon'ble Apex Court of India has, in case of Suhrid Singh @ Sardool Singh (supra), held as under:- "6. Where the executant of a deed wants it to be annulled, he has to seek cancellation

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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 nonest/ 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 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 where 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."

In the present case also, the petitioners have rightly sought decree of declaration only qua the sale deeds in question instead of seeking their cancellation inasmuch as they are not parties to the same. Insofar as the issue as to applicability of Section 24(b) of the Act of 1961 or Section

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24(e) of the Act of 19641 is concerned, the issue is no more res integra. The Coordinate Bench of this Court has, in the case of Jagdish Sahu (supra), held as under:-

"20. As stated above, the plaintiff/petitioners are non-executant of the sale deed and they are in possession and they sued for a declaration that the deed is null and void and does not bind them, thus, provisions of clause (a), (b),

(c) & (d) of Section 24 of the Act does not apply in this case for the purpose of payment of court-fee on the plaint. Therefore, the present case comes under the category of clause (e) of Section 24 of the Act and the court-fee shall be computed on the amount at which the relief sought is valued in the plaint, subject to a minimum fee of twenty-five rupees." The reliance placed by the learned counsel for the respondents on the judgment of Hon'ble Apex Court of India in the case of J. Vasanthi (supra), is misconceived inasumch as in that case the original plaintiff was a party to the transaction; hence, it has no applicability in the present case.

In view of the law laid down by the Hon'ble Apex Court of India in case of Suhrid Singh @ Sardool Singh (supra) and the Coordinate Bench of this Court in case of Jagdish Sahu (supra), this Court is of the considered opinion that the learned trial Court erred in directing the petitioners to pay Court fee under Section 24(b) of the Act of 1961 and the order dated 19.04.2017 suffers from illegality which warrants interference of this Court under its supervisory jurisdiction. The order dated 19.04.2017 is quashed and set aside to the extent it has allowed the application filed by the respondents-defendants under Order 7 Rule 11 CPC and it is held that the Court fee paid by the petitioners-plaintiffs was proper.

The writ petition stands allowed accordingly."

In that view of the matter, issue notice to the respondent(s),

returnable within six weeks.

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Meanwhile, operation of the order dated 28.09.2021 passed

by the trial court shall remain stayed.

(INDERJEET SINGH),J

MG/130