Rajendra Nautiyal (Male) Aged ... vs Diwakar Jaguri
2022 Latest Caselaw 864 UK

     IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL


        Writ Petition (M/S) No. 3643 of 2018


Rajendra Nautiyal (Male) aged about 63 years
S/o Late Mahanand Nautiyal
R/o 111/02 Rajpur Road, Dehradun
                                     ..........Petitioner


                        -Versus-

1.   Diwakar Jaguri, S/o Late R.D. Jaguri
     R/o 169 Indra Nagar Colony Dehradun and
     B-51, Rishi Vihar, Menulwala, Dehradun

2.   Satish Mohan Singh
     S/o Shri M.P. Singh
     R/o Ajabpur Kala, Dehradun
                                        ......Respondents

Advocates appeared in the case:

For Petitioner             :       Mr. Siddhartha Singh

For Respondents            :       Mr. I.P. Kohli


Sri S.K. Mishra, ACJ.

         Date of hearing and judgment: 23.03.2022



     By filing this writ petition under Article 227 of
the Constitution of India, the plaintiff in civil suit no.
103 of 2012, of the court of 1st Additional Civil Judge
(S.D.), Dehradun, has assailed the order passed by
the said court on 31.03.2016 which was upheld by the
learned District Judge, Dehradun in Miscellaneous
Civil Appeal No. 38 of 2016.


2.   The facts of the case are as follows:-


                                               Page No. 1 of 9
       The petitioner herein as plaintiff filed Original
Suit No. 103 of 2012 before the learned Civil Judge
(S.D), Dehradun, for injunction and adjudicating that
the   sale      deed   dated   12.08.2011   executed       by
defendant no. 1 in favour of defendant no. 2 to be
null and void. The contesting respondent no. 1, being
defendant no. 2, has filed written statement in the
said original suit, inter alia, on the ground that
plaintiff has executed power of attorney in favour of
defendant no. 1. Defendant no. 1 has executed the
sale deed on 12.08.2011 on the basis of power of
attorney dated 14.03.2007, allegedly for valuable
consideration. Respondent no. 2 has also filed a
counter claim along with written statement and
prayed for certain declaration. He took specific plea
that the suit is undervalued and court fee paid is
insufficient.     Defendant    no.   2,   the   contesting
respondent herein, took a plea that valuation of the
suit should be Rs. 31 lakhs and he also sought relief
of the perpetual injunction. It is further borne out
from the pleadings that the plaintiff has claimed that
on 14.03.2007 he had executed the general power of
attorney in favour of defendant no. 1 for pursue the
mutation proceedings with regard to property no. 566
Rajpur Road, Dehradun. But later on when he had
doubts regarding the intention of defendant no. 1 he
cancelled the same by executing deed of revocation
on 13.02.2012. On 14.02.2012, a notice was sent to
defendant no. 1 about the revocation of power of
attorney.
      After appearance of the parties, on filing of the
written statements, counter claim etc., defendant no.
                                                Page No. 2 of 9
 2 filed an application before the learned Additional
Civil Judge (S.D.) Dehradun, in the aforesaid suit for
deciding the question of valuation and payment of
court fee as a preliminary issue. This application was
allowed and plaintiff was directed to value the suit at
Rs. 31 lakhs and pay court fee accordingly. He being
aggrieved by the said order of learned Civil Judge
(S.D.) Dehradun, preferred an appeal before the
learned District Judge, Dehradun. The learned District
Judge, Dehradun, has come to the conclusion that the
order passed by the learned Civil Judge is correct,
and, therefore, does not require any interference.


3.   In this case, the petitioner/plaintiff has prayed
for the following relief in the original suit i.e. a
perpetual    injunction     against     the     defendants/
respondents. He also prayed for declaring the sale
deed executed by defendant no. 1 and defendant no.
2 on 12.08.2011 as null and void. In this connection,
the learned counsel for the parties submitted that the
court fee should be valued as per Section 7(iv-a) of
the Court Fees Act which is quoted below:-
     "7. Computation of fees payable in certain suits for
     money.
     The amount of fee payable under this Act in the suits
     next hereinafter mentioned shall be computed as follows:
     .....................

.....................

....................

For a declaratory decree with consequential relief.....(iv) In suits ......

(a) to obtain a declaratory decree or order, where consequential relief other than reliefs specified in sub- section (iv-A) is prayed; and ..................

(iv-a) for cancellation or adjudging void instruments and decree. In suits for or involving cancellation of or adjudging void or voidable a decree for money or other

property having a market value, or an instrument securing money or other property having such value;

(1) where the plaintiff or his predecessor in title was a party to the decree or the instrument, according to the value, of the subject matter, and (2) ..............

4. Therefore, it is contended by the learned counsel for the respondents that since the plaintiff is challenging the instrument i.e. registered sale deed executed in favour of respondent no. 2 by respondent no. 1, the valuation of suit should have been valued that has been reflected in the sale deed.

5. This question is no more res integra. In fact, in the recent judgments, the Hon'ble Supreme Court has occasion to examine the aforesaid provisions of law in the case of Agra Diocesan Trust Association vs. Anil David and Ors, Civil Appeal No. 1723 of 2020 (arising out of SLP (C) No. 18007 of 2019) decided on 19.02.2020. The facts of that case, decided by the Hon'ble Supreme Court shows that the plaintiff filed a suit before the Civil Judge (S.D.) for cancellation of a sale deed executed by defendant-respondent no. 1. The third respondent i.e. purchaser has acquired the property from the defendant -respondent no. 1. Another suit was filed by the plaintiff for cancellation of the sale deed executed on 08.03.2013 in that case executed by the first two respondents in favour of purchaser. A further relief was sought for permanent injunction against the respondents restraining them from interfering in the plaintiff's peaceful possession of the property in dispute. The defendants in their counter claim took a plea that although the relief of cancellation of the sale deed in question has been

sought , the plaintiff had improperly valued the suit and the court fee paid was insufficient. The trial court caste the issues and issue no. 8 and 10 relating to the undervaluation made by the plaintiff and proper court fees to be paid.

The trial court by its order dated 23.04.2016 recorded the finding against the plaintiff and held that the suit filed was undervalued and court fee paid by the plaintiff was insufficient. Aggrieved by the same, plaintiff filed writ petition before the High Court, contending that the land in dispute was agricultural land. Further it was stated that the appellant-plaintiff was not party to the sale deed, and, therefore, the learned trial court has committed an illegality in deciding the issues against the plaintiff and in directing the plaintiff to pay ad valorem court fee on the market value of the land. It was also submitted that as the land in dispute was agricultural land, the petitioner was obliged to pay the court fee on the revenue payable as fixed by the State Government in view of Section 7(iv-A) of the Court Fees Act, 1870. The High Court ruled against the plaintiff/petitioner and held that contention raised by the defendant/respondents are correct.

The matter was carried to the Hon'ble Supreme Court and the Supreme Court has ruled in favour of the plaintiff. While deciding the legal issues, the Hon'ble Supreme Court took into consideration the provisions of Section 7 of the Court Fees Act, it took into consideration the reported case of Suhrid Singh @ Sardool Singh V. Randhir Singh & Ors. (2010) 12 SCC 112 and Shailendra Bhardwaj & Ors. V. Chandra Pal &

Anr. (2013) 1 SCC 579. In the case of Shailendra Bhardwaj, the Hon'ble Supreme Court took into consideration Section 7(iv-A) and Section 17(iii) of the Schedule II of the Court Fees Act. The Supreme Court ruled that on comparing the aforesaid provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there no other provision under the Act for payment of fee relating to relief claimed. Article 17 (iii) of Schedule II of the Court Fees Act makes it clear that this Article is applicable in cases where the plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fees relating to relief claimed. If there is not other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of the Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/ declaring null and void decree for money or an instrument securing money or other property having such value. But this provision is applicable when the plaintiff has executed the instrument.

6. In the case of Agra Diocesan Trust Association (supra), the Supreme Court held that it is evident from the discussion that it is undisputed that the point in issue was with respect to valuation for purposes of court fee, equally it is not in issue that since the plaintiff (i.e. petitioner herein) sought, in addition to a declaration, in both the suits, decrees of cancellation, the crucial point was what the correct value for purposed of court fee was. Now, market value has been specifically defined, in the context of a litigation like the present one. According to Section 7(iv-A), in case the plaintiff (or his predecessor-in title) was not a party to the decree or instrument, the value was to be according to one-fifth of the value of the subject matter, and such values shall be deemed to be under Section 7(iv-A), if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree is passed or the instrument executed. Importantly, the explanation to Section 7(iv-A) created a deeming fiction as to what constitutes the value of the property by saying that in the case of immovable property the value shall be deemed to be the value as computed in accordance with the sub-section (v), (v-A) or (v-B) as the case may be. In that case, the plaintiff contended that the value determinable in terms of clause (v) of Section 7, by reason of Section 7(iv-A). Section 7(v)(i) contains two clauses-(a) and (b); both are in respect of revenue paying lands, therefore, the petitioner valued its suits on the basis of revenue which according to it was payable, While so stating,

the value (for purposes of court fee) was determined to be Rs. 3000/- in each suits.

7. In that view of the matter, the Hon'ble Supreme Court finally opined that there was no compulsion for the plaintiff to , at the stage of filing the suit, prove or establish the claim that the suit lands were revenue paying and the details of such revenue paid. Once, it is conceded that the value of the land [as per explanation to Section 7(iv-A)] is to be determined according to either sub clauses (v),(va) or (vb) of the Act, meant that the concept of market value, a wider concept in other contexts, was deemed to be referable to one or other modes of determining the value under sub clauses (v), (va) or (vb) of Section 7(iv-A). This aspect, as per the considered view of the Hon'ble Supreme Court, was lost sight of by the High Court, and, therefore, the impugned judgment and order of the trial court as well as of the High Court were held to be unsustainable and, therefore, they were set aside. Consequently, the question what is the market value, based on the revenue payable, would be an issue to be tried in the suit was the direction issued by the Hon'ble Supreme Court.

8. This unreported case of the Hon'ble Supreme Court referred to as supra is applicable to the present case. In this case also the plaintiff claimed that he was not a party to the registered sale deed executed by respondent no. 1 in favour of respondent no. 2, therefore, his case is not covered by Section 7(iv-A). He valued his suit for declaration and possession at

Rs. 5 lakhs, which in our considered opinion is not incorrect and the learned Civil Judge (S. D.) Dehradun as well as the learned District Judge, Dehradun, erred in holding that the value of the suit should be the value of sale deed executed, not by the plaintiff but by his attorney who was allegedly authorized to pursue mutation only and not to sale the property. However, whether the power of attorney, authorizing respondent no. 1 to execute any sale deed or any other type of convenience shall be determined at the final hearing of the suit after leading evidence of both the sides.

9. In that view of the matter, the writ petition is allowed. Original order dated 31.03.2016 and the appellate order dated 12.10.2018 are hereby set aside.

10. Urgent certified copies of this order be provided as per rules.

(S.K. Mishra, ACJ)

PV