Sahil Mohd. Sakir Chauhan vs Arman Chauhan ...
2023 Latest Caselaw 8726 Raj

[2023:RJ-JD:35962]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 27/2023

1. Sahil Mohd. Sakir Chauhan S/o Md. Sakir Yunus Bhai, Aged About 31 Years, R/o Plot No. 24, Khasra No. 720 And 723, Patrakar Ii Colony, Village Choukha, Tehsil And Village Jodhpur.

2. Rahil S. Chauhan S/o Sakir Bhai Md. Yunus Bhai, Aged About 34 Years, R/o Plot No. 24, Khasra No. 720 And 723, Patrakar Ii Colony, Village Choukha, Tehsil And Village Jodhpur.

----Petitioners Versus

1. Arman Chauhan S/o Late Amir Chauhan, R/o Merti, Silawato Ka Bas, Sojati Gate, Jodhpur, Minor Through Next Friend Ahmad Hussain Kheradi S/o Abdul Jabbar, R/o Hanumanji Ki Bhakri, Nayi Sadak Jodhpur.

2. Smt. Nasrin W/o Late Amir Chauhan, R/o Merti, Silawato Kas Bas, Sojati Gate Jodhpur.

----Respondents

For Petitioner(s) : Mr. Manas Ranchhor Khatri For Respondent(s) : Mr. Sandeep Saruparia

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

19/10/2023

1. The present revision petition has been filed against the order

dated 16.01.2023 passed by the Additional Civil Judge No.1,

Jodhpur Metropolitan in Civil Suit No.172/22 (NCV No.657/22)

(wrongly mentioned in the order impugned as Civil Misc. Case

No.172/22) whereby the application under Order 7 Rule 11 read

with Section 151, CPC as filed by the defendant Nos.1 & 2 has

been rejected.

[2023:RJ-JD:35962] (2 of 6) [CR-27/2023]

2. The facts of the case are that a suit was preferred by minor

Arman Chauhan through his next friend for declaration of the sale

deed to be void and for permanent injunction. In the said suit, an

application under Order VII Rule 11, CPC was preferred by the

defendant nos.1 and 2 on three grounds, firstly, in terms of

Section 24(a) of the Rajasthan Court Fees and Suit Valuation Act,

1961 (hereinafter referred as 'the Act of 1961'), the court fee is to

be paid on basis of the market price of the disputed property

which has not been paid in the present suit. Further, the suit has

not even been valued on the current market price. Although, the

sale deed in question itself specifies the valuation of the property

to be Rs.23,10,000/- in the year 2019, the present market value

has not been specified in the plaint. Secondly, even if the

valuation as specified in the sale deed in question is taken into

consideration, the present suit would not be within the pecuniary

jurisdiction of this Court. Thirdly, the plaintiff being a minor is not

entitled to appoint any power of attorney on his behalf and Ahmad

Hussain is neither the natural guardian of the minor nor he has

been appointed as a next friend to sue on behalf of the minor. On

the above grounds, it was prayed that the plaint be rejected.

3. In response, the case of the defendant was that sufficient

Court fee had been paid as the suit in question was for

cancellation of the sale deed and as held by the Hon'ble Apex

Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir

Singh & Ors., AIR 2010 SC 2807, where the executant of a

deed wants it to be annulled, he has to seek cancellation of the

deed and the Court fee payable in the present matter would be

[2023:RJ-JD:35962] (3 of 6) [CR-27/2023]

liable to be computed in terms of Section 24 (e) of the Act of 1961

only.

4. As the plaintiff had not prayed for relief of possession in the

present matter, the Court below, relying upon the judgment

passed in the case of Jagidh Sahu & Ors. vs. Sonu & Ors. in

S.B. Civil Writ Petition No.8973/2014 (decided on

31.01.2017) held that the present case would fall under clause (e)

of Section 24 of the Act and hence, the court fee payable would be

on the valuation computed in the plaint qua the reliefs sought.

Hence, the Court below held that the Court fee as paid was

sufficient and consequently rejected the application as filed by the

defendants.

5. Learned counsel for the petitioners submitted that the Court

below wrongly held the suit to be governed by Section 24 (e) of

the Act of 1961. Admittedly, the present suit was for declaration

and the plaintiff sought declaration as well as the consequential

relief of permanent injunction. Therefore, it would be governed by

clause (b) of Section 24 of the Act of 1961 and not clause (e) of

Section 24 of the Act of 1961. Therefore, court fee was liable to be

paid on the market price of the property in question.

6. Per contra, learned counsel for the respondents submitted

that the complete tenor of the suit was for relief of cancellation

may be the relief qua the same is not happily worded. Counsel

submitted that the suit was specifically for cancellation and not for

declaration and further, the plaintiff was definitely an executant of

the document in question, he being a minor and the document

being executed by his mother being his natural guardian. He

therefore submitted that even if it is assumed that the present

[2023:RJ-JD:35962] (4 of 6) [CR-27/2023]

matter would not be governed by Section 24 (e) of the Act of

1961, it would then also not be governed by Section 24 (b) of the

Act of 1961 but would be governed by Section 38 of the Act of

1961.

Counsel consented before this Court that if the Court directs

to pay the Court fee in terms of Section 38 of the Act of 1961, the

plaintiff is ready to pay so.

7. However, the above submission has also been disputed by

learned counsel for the petitioners on the premise that the matter

would be governed by Section 24 (b) of the Act of 1961 only and

not Section 38 of the Act of 1961.

8. Heard learned counsel for the parties and perused the

material available on record.

9. To reach to a just conclusion of the controversy in hand,

evaluation of the pleadings as made by the plaintiff in response to

the application as preferred by defendant Nos.1 & 2 would be

essential wherein it was averred as under:-

";g fd izkFkZuk i= ds in la[;k 3 o 4 esa fy[ks rF;ksa ds lEcU/k esa bl izdkj ls dFku gS fd oknh us okn dk ewY;kadu nLrkost dks "kwU; ?kksf'kr djus ds fy, fd;k gSA ;g fufoZokn gS fd nkosa esa iz"uxr foØ; foys[k] ftlds "kwU; ?kksf'kr djus ds fy, nkok fd;k x;k gSa] esa oknh fu'iknd ugha gSA ,slh fLFkfr esa ekuuh; loksZPp U;k;ky; ds fuEufyf[kr fu.kZ; ds vuqlkj oknh dks cktkj ewY; ij nkok drbZ izLrqr djus dh vko";drk ugha gSA "

10. A bare perusal of the above pleadings shows that in the

plaint, the plaintiff had built up a case for declaration of the sale

deed to be void with specific averment that he is not the

executant of the said document whereas total contrary to the said

pleadings, it has been argued before this Court by learned counsel

[2023:RJ-JD:35962] (5 of 6) [CR-27/2023]

for the petitioners that although the relief as prayed for in the

plaint is termed to be for declaration, the same in fact is for

cancellation which fact can very well be concluded from the

reading of the plaint as a whole. Further, even if it has been

pleaded by the plaintiff that he is not the executant of the sale

deed, the pleading, if contrary to the document, has to be

overlooked and ignored by the Court.

11. In view of the pleadings as made by the plaintiff and the

contrary submissions made by learned counsel for the petitioners

before this Court, this Court is of the clear opinion that the

present matter would not, in any circumstance, be governed by

Clause (e) of Section 24 of the Act of 1961. Therefore, the finding

of the Court below to that extent is hereby set aside.

12. Now, the issue would be if the matter is not governed by

Section 24(e) of the Act of 1961 then it would be governed by

Section 24 (b), (d) or Section 38 of the Act of 1961?

13. To decide the above controversy, the issues which would now

require a specific finding are firstly, whether the present suit is

for cancellation or for declaration? Secondly, whether the plaintiff

can be termed to be the executant of the sale deed or not?

Thirdly, whether any consequential relief has been prayed for in

the present suit or not?

In the opinion of this Court, specific findings on the above

questions need to be recorded and the same would definitely be

within the domain of the learned Court below. Therefore, in view

of the above observations, while setting aside the order impugned

dated 16.01.2023, the matter is remanded back to the Court

below to decide the issue regarding the valuation of the suit and

[2023:RJ-JD:35962] (6 of 6) [CR-27/2023]

the payable court fee afresh after framing an issue qua the same

and deciding the same as a preliminary issue.

14. With the above directions, the present revision petition is

disposed of.

15. Stay petition and all pending applications, if any, also stand

dismissed.

16. The record be sent back to the Court below with immediate

effect.

(REKHA BORANA),J

86-KashishS/-

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