The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 749 OF 2022 Ram Prasad Panda …. Petitioner Mr. Biplab P.B. Bahali, Advocate -versus- Bighneswar Sahu and others …. Opp. Parties Mr. P.K. Nanda, Advocate (For Opp. Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No. 9. 1.
Decision
ORDER 10.04.2023 This matter is taken up through hybrid mode. 2. Order dated 1st August, 2022 (Annexure-5) passed in C.S. No.159 of 2021 is under challenge in this CMP, whereby learned 1st Additional Senior Civil Judge, Berhampur directed the office to assess the proper court fee as per the market value of the suit land. 3. Mr. Bahali, learned counsel for the Petitioner submits that the civil suit has been filed by the Plaintiff-Petitioner for the following relief: “The Plaintiff therefore prays that the Hon’ble Court may be graciously pleased to pass a decree in favour of the Plaintiff against the Defendant No.1 and 2 declaring that :- (a) The Registered Sale Deed in Document No.10612000399 dated 28.01.2020 is null and void in operative in law and cannot grant right, title, possession and ownership over the suit scheduled house property by virtue of said R.S.D. in favour of the Defendant No.1 in any manner. (b) Injuct or restrain the Defendant No.1 permanently from entering into suit scheduled house property in any manner at any time and not to alienate the suit schedule house to any other person. (c) Direct the Defendant No.2 to offer proposal for sale of the suit scheduled house property to the Plaintiff as per the terms and conditions of Registered Willnama No.160/2004 dated 19.07.2004. (d) The Plaintiff is ready to purchase as per the price paid by Defendant No.1 Page 1 of 4 // 2 // (e) Grant cost of suit. (f) Pass such and further relief and reliefs as the Hon’ble Court may fit and proper in the circumstances of the case in the interest of justice.” The Petitioner is neither a party to the sale deed dated 21st 4. August, 2020 nor he is a beneficiary to the same. Thus, in view of the ratio decided in the case of Suhrid Singh @ Sardool Singh –v- Randhir Singh and others, reported in AIR 2010 SC 2807, he is required to pay ad valorem court fee in terms of Section 7(iv)(c) of the Court Fees Act, 1870 (for brevity ‘the Act’). At Paragraph-7 of the said case law, it is held as under: “7. 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. 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 non- est/ 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 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 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.” to pay ad-valorem court to merely pay a fixed court fee on Page 2 of 4 // 3 // Learned trial Court without taking into consideration the settled position of law, directed the office to assess the court fee as per the market value of the land in question. 5. It is his submission that the suit has been valued at Rs.1,00,000/- and ad valorem court fee has been paid accordingly. Since the Petitioner is not a party to the sale deed in question, which sought to be set aside in the suit, he is not expected to value the suit as per the market value of the property involved. Since this material aspect was not taken into consideration by learned trial Court, the impugned order under Annexure-5 is not sustainable and is liable to be set aside. 6. Mr. Nanda, learned counsel for the Defendant-Opposite Party No.1 vehemently objects to the same and contends that since the suit has been filed for declaration as well as consequential relief of permanent injunction, the suit should have been valued in term of Section 7(v) of the Act. Although the market value of the suit property was Rs.26,81,850/- at the relevant time, but the suit was demonstratively undervalued by the Plaintiff. As such, learned trial Court has committed no error in directing the Petitioner to pay the ad valorem court fee as per the market value of the property in question. 7. Taking into consideration the rival contentions of the parties, this Court feels that observation of the Hon’ble Supreme Court in Suhrid Singh @ Sardool Singh (supra) is relevant for adjudication of the suit. It is held inter alia that if a non- executant of a sale deed seeks only a declaration that the sale deed as invalid in which he is not the executant and also prays for consequential relief, he has to pay an ad valorem court fee in terms of Section 7(iv)(c) of the Act on the relief sought for is valued in the plaint. Section 7(iv)(c) of the Act provides that in Page 3 of 4 // 4 // a suit for declaratory decree with consequential relief, the court fees shall be computed according to the amount at which the relief sought for is valued in the plaint. In the instant case, the Petitioner is not an executant of the sale deed, which is sought to be declared invalid. A consequential relief for permanent injunction has also been sought for in the suit. The Plaintiff claims to be in possession of the suit land. In that view of the matter, it prima facie appears that the Petitioner is required to pay the ad valorem court fee under Section 7(iv)(c) of the Act accordingly. Learned trial Court while considering the matter has not taken this material aspect into consideration. By taking into consideration the valuation provided by Defendant-Opposite Party No.1, learned trial Court directed its office to assess the Court fees as per the market value property, which is not sustainable in the eyes of law. 8. In view of the above, this Court sets aside the impugned order under Annexure-5 and remits the matter back to learned 1st Additional Senior Civil Judge, Berhampur for fresh consideration of the petition filed by the Defendant-Opposite Party No.1 keeping in mind the ratio decided in Suhrid Singh @ Sardool Singh (supra) giving opportunity of hearing to the parties concerned. 9. Accordingly, the CMP is disposed of. 10. Interim order dated 16th August, 2022 passed in I.A. No.823 of 2022 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4