BENCH AT AURANGABAD v. Sharad

The petitioner – original plaintiff is taking exception to the order dated 19.11.2011, passed by Civil Judge, Senior Division, Bhokar, upholding the objection raised by the office of the Court in respect of payment of court fees and directing the plaintiff to pay court fees in accordance with provisions of Section 6(iv)(ha) of the Bombay Court Fees Act, 1959. 2 Plaintiff instituted Special Civil Suit in the Court of Civil Judge, Senior Division, Bhokar, claiming declaration of ownership, that {2} wp932111.odt he is co-owner and sharer of land G.No.453, admesuring 10 hectares 71 ares to the extent of northern 5 hectares 36 ares. The plaintiff also claims a declaration that the documents of alleged sale deeds, as noted in Annexure-A of the plaint, executed by defendant no.2 in favour of defendants no.3 to 52, are erroneous, illegal and not binding on the plaintiff. 3 After lodging the plaint, at the time of conducting scrutiny, office of the Court raised an objection that the plaintiff is required to pay court fees in accordance with Section 6(iv)(ha) of the Bombay Court Fees Act, in respect of prayer clause 2 in the plaint. The trial Court has upheld the objection raised by the office and directed the plaintiff to comply with the same within fifteen days. 4 It is argued by the learned Counsel appearing for the petitioner – original plaintiff that since the plaintiff is not party to the sale deeds and the sale deeds are executed by defendant no.2, he is not required to pay the court fees in accordance with provisions of Section 6(iv)(ha) of the Act. The plaintiff is not seeking cancellation of the sale deeds, however, he is seeking avoidance of the sale deeds. 5 In this regard, reliance can be placed on the judgment in the matter of Abdul Gaffar Abdul Samad Vs. Niranjan Kumar Ramnath Prasad Dwivedi & others, reported in 2005 (3) Bom.C.R. 879. The facts giving rise to the petition in the reported matter are thus: “3 The suit filed by the plaintiff is for declaration that agreement for development dated 28-3-1997 {3} wp932111.odt executed by defendant No.1 Niranjan in favour of defendant No.3 Ramratan (petitioner in W.P.No. 4505/2004) is void and not binding upon him. The plaintiff has also sought perpetual injunction restraining them from interfering with or disturbing his possession. The plaintiff has stated that he has entered into an agreement of sale dated 7th March, 2003 for Rs.1,30,000/- with defendant No.1. He states that he has paid an amount of Rs.24,000/- towards part payment and was given possession on 10th July, 2002. He states that defendant No.1 permitted him to affix a gate and accordingly after affixing gate he has also put his lock on it. He states that the sale-deed was to be executed in the month of January, 2003. He further states that an agreement of sale for Rs.1,30,000/- was executed on 7th March, 2003 and on that date he has paid entire amount of consideration to the owner and its receipt is acknowledged by the owner. He states that thereafter some difference cropped up between him and defendant No.1 and therefore, defendant No.1 executed some documents in favour of defendant No.3 and defendant No.3 is trying to take forcible possession of the suit plot from him. It is stated by him that the agreement for development executed by defendant No.1 in favour of defendant No.3 is dated 20th March, 1997 and is not legally valid and also a void document. He has stated that cause of action arose on 10-3-2003 when defendant No.3 lodged false complaint against him. The suit has been valued at Rs.1,000/- and Court Fees of Rs.200/- has been paid upon it. While dealing with the issue raised in the matter, the learned Single Judge has, in para 8 of the judgment, observed thus: The learned Counsel appearing for defendant “8 has placed reliance upon ruling reported at (1985 (87) Bom.L.R. 308(sic), and also (Parekh Market {4} wp932111.odt Premises Co-operative Societies Ltd. v. Padmanabh Builder) 5, 1998 (2) All.M.R. 313 : 1998 (1) Bom.L.R. 1. He has relied upon age Nos.314 and 315 of the first ruling in which learned Single Judge of this Court (Justice R.A. Jahagirdar) has held that if the suit is for declaration that any sale is invalid irrespective of where any consequential relief is claimed or not, that suit must necessarily be covered by Clause (ha). It has been held that the provisions of Clause (j) have no application in such suits. Perusal of this ruling also reveals that the Court here has taken notice of the fact that Clause (ha) has been placed on statute book by Maharashtra Act No.9 of 1970 and the Court and the Court has held that clause (ha) provides for payment of Court Fees in suits for declaration that any sale or contract for sale or termination of contract for sale of any movable or immovable property is void 1/4th of ad valorem Court fees leviable on the market value of the property is required to be paid on such suit by this sub-clause (ha). It is to be noticed that in A.I.R. 1969 Bom. 66 challenge was to the Deed of Assignment of movable and immovable property and as this Clause (ha) did not exist, learned Single Judge there has held that the suit would fall under Clause 6(iv)(j). This ruling is also referred to by Justice Jahagirdar and has been distinguished. It has been held that it is no longer a good law in so far as question of calculation of Court Fees payable in suit for declaration that sale of a particular property is void and illegal. It is further held that such suits fall under section 6(iv) (ha) the residuary provision namely section 6(iv)(j) will have no application. Next ruling on which reliance has been placed 1998(8) All.M.R. 313 (sic), specify the circumstances in which provisions of section 6(iv)(j) are attracted. It is held that the suit must be for declaration, subject-matter thereto should not be susceptible of monetary evaluation and there is no other provision governing such suit in the Act. It is held that section 6(iv)(j) is residuary {5} wp932111.odt provision.” The learned Single Judge has ruled that the provisions of Bombay Court Fees Act, as contained in Section 6(iv)(ha) are correctly invoked by the trial Judge in the facts and circumstances of the case. 6 In another judgment, in the matter of Chandrika Chunilal Shah Vs. Orbit Finances Pvt. Ltd. & others, reported in 2011 (2) Bom.C.R. 771, the facts giving rise to the dispute are stated in para 3 of the judgment, thus: The respondent No.1 proposed to develop the “3 property, bearing final Plot No.952 (Part) & 952 (Part) Mahim by constructing a new multi storied building in place of an old structure. By an agreement of sale dated 2 March 2000, the respondent No.1 agreed to sell and allot to the appellant Unit 401 on the 4th floor of the building at a concessional price of Rs.13,50,000/- in view of the fact the appellant was a tenant of a small portion of the old structure. According to the appellant, the respondent committed a breach of the agreement and therefore he filed a suit, bearing Suit 3703 of 2007, in the City Civil Court, Mumbai, for a declaration that the agreement dated 2 March, 2000 was valid and for an order directing the respondent No.1 to carry out his statutory obligations under the Maharashtra Ownership Flats Act, 1963 (for short the -MOFA-) by putting the appellant in possession of Unit 401. The suit was valued at Rs.1,000/- under section 6(iv)(j) of the Bombay Court Fees Act. During the pendency of the suit, from the affidavit in reply of the respondent No.1 the appellant discovered that the respondent No.1 had already sold the entire 4th floor of the proposed building to the respondent Nos.2 and 3 for a total consideration {6} wp932111.odt of Rs.11,50,00,000/- on 7 August, 2006 i.e. Prior to the filing of the suit. On discovery of this fact, the appellant amended the plaint and joined respondent Nos.2 and 3 as parties to the suit. He also amended the prayer clause of the plaint and sought a declaration that the agreement dated 7 August, 2006 executed by the respondent No.1 in favour of respondent Nos.2 and 3 was invalid, bad in law and non est. On service of the writ of summons of the amended plaint the respondent Nos.2 and 3 appeared in the suit, and contended that the City Civil Court had no jurisdiction to entertain and try the suit as the value of the suit property was Rs. 13,50,000/- as per appellant’s own averment in the plaint. Since the appellant was claiming cancellation of the sale agreement between the respondent No.1 and respondent Nos.2 & 3, the suit was required to be valued under section 6(iv)(ha) of the Bombay Court Fees Act and Court fee equal to one half of the ad valorem fee leviable on the value of the property was required to be paid. The suit so valued was beyond the pecuniary limit of jurisdiction of the City Civil Court. The contention of the respondent Nos.2 and 3 was upheld by the City Civil Court which directed return of the plaint for presentation to the proper Court. That decision is impugned in this appeal.” While dismissing the appeal, the learned Single Judge has observed in para 9 of the judgment, thus: “9 Section 8 of the Suits Valuation Act, 1887 provides that where, in suits other than those referred to in paragraphs (v), (vi), (x) and Clause (d) of paragraph (xi) of section 6 of the Bombay Court Fees Act, 1959, the Court fees are payable ad valorem under the Bombay Court Fees Act 1959, the value as determinable for computation of the Court fees and the value for the purposes of {7} wp932111.odt jurisdiction shall be the same. Thus, in respect of a suit falling under paragraph (iv)(ha) of section 6 of the Bombay Court Fees Act, the valuation for the purpose of Court fees and valuation for the purposes of jurisdiction is the same. The valuation for the purpose of Court fees in the present suit would thus exceed Rs.50,000/- which is the pecuniary limit of the jurisdiction of the City Civil Court. The City Civil Court, therefore, would not have jurisdiction to try the present suit as amended and containing prayer (b-i). After the prayer clause (b-i) was introduced by an amendment, the City Civil Court ceased to have jurisdiction to entertain and try the suit. Therefore, the direction of the City Civil Court to return the plaint to the plaintiff under Order 7, Rule 11 of the Code of Civil Procedure for presenting it to proper Court is legal and valid. For these reasons, there is no merit in the appeal which is hereby dismissed.” 7 In similar circumstances, in the matter of Abdul Sattar Gulabbhai Bagwan Vs. Vaibhav Laxmangiri Gosawi & others, reported in 2012 (1) Bom.C.R. 1, the learned Single Judge of this Court has held in favour of applicability of provisions of Section 6 (iv)(ha) of the Act. In the reported matter, by virtue of amendment to the prayer clause, the plaintiff sought avoidance of sale deed executed by defendants no.1 and 2 in favour of defendants no.3 to 5 and claimed that the sale deed is not binding on him. Considering facts of the case, since the plaintiff was found to be seeking avoidance of the sale deed, learned Single Judge of this Court held that provisions of Section 6(iv)(ha) are applicable. 8 Learned Counsel appearing for the petitioner - plaintiff has sought leave to place reliance on the judgment in the matter of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & others, reported in 2010 {8} wp932111.odt A.L.J. (S.C.) 531. The controversy arose before the Apex Court was in respect of interpretation of provisions of Court Fees Act, 1870. In the facts and circumstances of the case, the Apex Court directed computation of court fees in accordance with Section 7(iv)(c) read with Section 7(v) of the Court Fees Act, 1870. It is argued by the learned Counsel appearing for the plaintiff-petitioner herein, placing reliance on the judgment cited supra (Suhrid Singh), that where the executant of a deed wants it to be annulled, he has to seek cancellation 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. It is contended that since the plaintiff is not seeking cancellation of the sale deeds and since he is not executant of the documents, the plaintiff cannot be required to pay court fees in accordance with Section 6(iv) (ha) of the Act. 9 With due respects, it has to be observed that the issue, which had fallen for consideration in the reported matter before the Apex Court, was in relation to applicability of provisions of Court Fees Act, 1870, which are made applicable in the State of Punjab. Therefore, the authority cited at bar has no relevance with the facts and circumstances of the case. Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 provides that: 6 Computation of fees payable in certain suits: The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: {9} wp932111.odt (iv)(ha) for avoidance of sale, contract, for sale, etc. In suits for declaration that any sale, or contract for sale or termination of contract for sale, of any movable or immovable property is void – one half of ad valorem fee leviable on the value of the property. The provisions identical to Section 6(iv)(ha) of the Bombay Court Fees Act, 1959, do not find place in Court Fees Act, 1870. Since the provisions of Court Fees Act, 1870 are not pari materia with the provisions of Bombay Court Fees Act, 1959, the judgment of the Apex Court, cited at bar by the learned Counsel for plaintiff cannot be made applicable. 10 I deem it appropriate to follow the course as adopted by the learned Single Judges in the reported judgments referred to in paragraphs no.5, 6 and 7 of this judgment, and hold that the provisions of Section 6(iv)(ha) of the Act are attracted in the instant matter. Since the plaintiff is seeking a declaration that the documents of alleged sale deeds, as noted in Annexure-A of the plaint, executed by defendant no.2 in favour of defendants no.3 to 52, are erroneous, illegal and not binding on the plaintiff, the plaintiff is required to pay court fees in accordance with the provisions of Section 6(iv)(ha) of the Act. The plaintiff shall pay the Court fees in accordance with aforesaid direction and failure thereof would lead to the consequences as provided under law. 11 For the reasons enumerated above, I am of the opinion that the learned Civil Judge, Senior Division, Bhokar, is justified in issuing {10} wp932111.odt direction to the plaintiff to comply with the office objection in respect of payment of court fees. The petition is devoid of substance. 12 Writ Petition stands dismissed. However, time is extended for payment of court fees, as directed by the trial Court, by one month from today. adb/wp932111 R.M.BORDE JUDGE