New Dreamland Estate and Others vs Naina Saagi

Umesh Chandra Dhyani, J.—Since the subject matter of the aforesaid four civil revisions is the same, therefore, they are being decided together by this common judgment and order for the sake of brevity. By means of present civil revisions, the defendants/revisionists seek to set aside order dated 13.5.2014, passed by learned Civil Judge (Sr. Div.), Dehradun, in O.S. No. 690 of 2004 and O.S. No. 375 of 2005, both captioned as Smt. Naina Saagi v. New Dreamland Estate and another, whereby the preliminary issue of under valuation of suit and insufficiency of Court fee was decided in favour of the plaintiff and against the defendants holding that the suits were properly valued and the Court fee paid thereon was sufficient.

Plaintiff Naina Saagi filed the original suits against New Dreamland Estate and Vinay Chhabra (defendants) in the Court of Civil Judge (Sr. Div.), Dehradun praying for following reliefs:

(A) A decree for cancellation of sale-deed dated 23rd June 2003 executed by the defendant No. 2 in favour of defendant No. 1 which was registered in Sub Registrar, Dehradun in book No. 1 volume 963 at page 488 at serial No. 3329, registered on 23.6.2003 may very kindly be passed.

(B) A decree for permanent injunction restraining the defendants and their agents etc. from interfering in the possession of the plaintiff in respect of the property described in the schedule of the plaint, or evicting her without due process of law.

(C) Full cost of the suit be awarded.

(D) Any other relief to which the plaintiff is found entitled may also very kindly be granted.

Primarily this Court is considered only with relief No. 15(A), as learned Counsel for the revisionists is aggrieved with the insufficiency of the Court-fee paid in respect of such relief only.

It is settled law that the quantum of the Court fee has to be determined on the allegations made in the plaint and the decision cannot be influenced on the assertions made in the written statement. Proper court-fee is payable on the allegations in the plaint and the averments made in the defence would be irrelevant.

The plaintiff has stated in para Nos. 4, 5, 6, 7 and 8 of the plaint as under:

(4) On 27.9.2003, the plaintiff came from outside and came to know that her goods have been stolen from her house and her title deeds as well as other documents have been stolen by the defendants from her house, for which the plaintiff had lodged the necessary report with the police and after lodging the report the plaintiff came to know that the defendant No. 2 has malafidely executed a sale-deed on 23.6.2003 in favour of the defendant No. 1, who is sole proprietorship concern of the defendant No. 2. Hence he has executed a sale-deed in his own favour.

(5) On the basis of alleged sale-deed dated 23 June, 2003 the defendant wanted to lay hand on the property of the plaintiff bearing No. 20/16 (New No. 24/5) Nemi Road, Dehradun and with that aim they had filed a civil suit bearing No. 580 of 2003, New Dreamland Estate v. Smt. Naina Saggi, for permanent injunction. In the said suit the plaintiff noted that defendant had fabricated the documents. She has never executed the agreement to sell, possession letter, affidavit, receipt and her signatures were taken only on alleged power of attorney fraudulently in the name of letter of authorization.

(6) The plaintiff never authorized the defendant No. 2 Shri Vinay Chhabra to execute any document or sale-deed in his own favour or in favour of any office owned by him or in favour of any other person.

(7) From the perusal of the sale-deed dated 23.6.2003, it looks that the defendant No. 2 has shown himself to be Attorney holder of the plaintiff and he also claims to be the proprietor of the Dreamland Estate and New Dreamland Estate, meaning thereby that the seller as well as the purchaser is the same person which is not permissible under law and hence the alleged sale-deed dated 23.6.2003, which was got registered in the office of Sub-Registrar Dehradun in Book No. 1 Vol. 963 at page 488, Addl. Book No. 1 vol. 1309 at pages 901/916 at serial No. 3329, on 21.6.2003 is alleged, void and without, jurisdiction has no legal sanctity.

(8) Possession letter is also a forged document as the plaintiff never executed any such document. She is in possession of the property ever since the date she purchased it and she is still in possession of the property in dispute.

In his written statement, defendant New Dreamland Estate denied the averments contained in para Nos. 4, 5, 6, 7 and 8 of the plaint allegations and also stated in paras 21, 22 and 23 that the defendant, vide registered power of attorney, was authorized to sell the land in favour of anybody and, therefore, there was no question of fabrication of documents.

While deciding an issue of valuation of the suit and Court-fee, this Court is not concerned with the correctness of the plaint allegations and averments contained in the written statement. Suffice will it be to say, for the purpose of adjudicating the matter in controversy, that this Court has to go by the averments contained in the plaint as has been held by Hon''ble Apex Court and different High Courts from time to time. S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar, , is an illustration to bring home the point.

No doubt, the sale-deed dated 23.6.2003, on the face of it, indicates that Smt. Naina Saagi through her Power of Attorney Vinay Chhabra executed the sale-deed in favour of new Dreamland Estate (under the sole proprietorship of Vinay Chhabra) as contended by learned Counsel for the revisionists, which factum will be decided by the Court below at the time of final disposal, but the question at the moment is should the Court look into the contents of Annexure-2, while deciding the preliminary issue on payment of Court fee, against the averments contained in the plaint? The obvious reply seems to be in the negative, especially because Smt. Naina Saagi herself is not the signatory to the sale-deed, and the transaction through power of attorney holder has been denied by her in the plaint. Had she been a signatory to the sale-deed, the position would have been otherwise.

It will be worthwhile to reproduce para No. 2 of the decision rendered by Hon''ble Apex Court in Sri Ratnavaramaraja Vs. Smt. Vimla, , as under:

"The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognizing that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging Dourt-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate Court-fee on his plaint. Whether proper Court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the Court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under section 115 of the Code of Civil Procedure is strictly conditioned by Clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the Court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper Court-fee has not been paid by the plaintiff has still no right to move the Superior Courts by appeal or in revision against the order adjudging payment of Court-fee payable on the plaint."

Learned Counsel for the revisionists contended that the Hon''ble Supreme Court, while rendering such judgment in the year 1961, has dealt with the scope of section 115 , C.P.C., the scope of which has been widened by the amendments incorporated in the year 1976 and thereafter, in the year 2005 by the Uttarakhand Amendment. While agreeing with such submission of learned Counsel for the revisionists that the scope of section 115 , C.P.C. has been widened, this Court is of the view that the Hon''ble Supreme Court while rendering judgment in Rathnavarmaraja (supra) has not only discussed the scope of section 115 , C.P.C., but has also discussed the locus of the defendants to challenge adjudication of the Court fee payable on the plaint.

Even if it be conceded for the sake of argument that the defendant can assail the finding of the Trial Court on the preliminary issue of suit valuation and court-fee in revision, the fact remains that the plaintiff herself has denied in the plaint that she authorized Vinay Chhabra to execute sale-deed in favour of New Dreamland Estate (his own company), which matter will be adjudicated upon by the Trial Court at the time of final disposal.

It will also be worthwhile to mention here section 7(iv-A) of the Court-Fees Act, 1870 here-in-below for reference:

"For cancellation or adjudging void instruments and decrees.--(iv-A) In suit 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) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be--

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 was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates."

(Emphasis supplied)

The plaintiff, in the instant case, has tried to uproot the very basis of Power of Attorney in her plaint, which, coupled with the fact that she herself was not a signatory to the instrument, is relevant for the purpose of adjudication of issue on court-fee. Had the plaintiff been a signatory to the instrument, she would have been required to pay court-fee according to the valuation of the subject-matter, but once she was not a signatory to the instrument and denied execution of such Power of Attorney in favour of Vijay Chhabra in her plaint, the subject will be governed by sub-clause (2) and not sub-clause (1) of section 7(iv-A) of the Court-Fees Act, 1870. Strict construction of Statute is required in such matters.

The Court below has, therefore, committed no mistake by holding that the Court fee paid by the plaintiff is sufficient. No interference is thus called for in the orders under challenge. All the four civil revisions, therefore, fail and are dismissed. No order as to costs.