Rameshwar Dayal Khandelwal vs Garima

Sujoy Paul, J.—Petitioner/plaintiff filed a suit for declaration and permanent injunction (Annexure P/2). The defendants filed an application under Order 7 Rule 11 C.P.C. (Annexure P/6) contending that the plaintiff has sought a declaration that sale deed dated 21.07.2008 be declared as nullity and inoperative and has paid only Rs. 2,000/- as court fees. The plaintiff is signatory to the sale deed and therefore, he need to pay ad valorem court fees. Parties were heard on this application. The court below by order dated 19.09.2013 partly allowed the said application and directed the plaintiff to pay the court fees as per value of the sale deed. This order is called in question in this petition filed under Article 227 of the Constitution.

Shri K.S. Tomar, learned senior counsel for the petitioner assailed the order on the ground that the sale deed is a void document. It is urged that where a person sought the relief for avoiding the instrument in which he is a party and signed by him, said document is void ab initio and he is not bound by said document. Ad valorem court fees is not required to be paid in those cases. Shri Tomar submits that in absence of full payment of consideration, sale deed is a void document in the eyes of law. He relied on Santoshchandra and Others Vs. Smt. Gyansundarbai and Others, and full Bench judgment of this court reported in Sunil Radhelia and Others Vs. Awadh Narayan and Others, . The reliance is also placed on Ranganayakamma and Another Vs. K.S. Prakash (D) by L.Rs. and Others, . Learned senior counsel submits that in subsequent Division Bench Judgment reported in Ambika Prasad and Others Vs. Ram Shiromani alias Chandrika Prasad Dwivedi and Another, The judgment reported in Santosh Chandra (Supra) was not considered and therefore, the Judgment of Ambika Prasad (supra) is distinguishable. In addition, it is urged that the judgment of Sunil Radhelia (supra) delivered by full Bench is not properly considered by the Division Bench in Ambika Prasad (supra). In nutshell, it is urged that since the sale deed is a void document, no court fees is payable in the facts and circumstances of this case.

Per Contra, Shri K.N. Gupta and Shri U.K. Jain, learned counsel for the respondents supported the order. They relied on Division Bench judgment in Ambika Prasad (Supra) which is followed in WP No. 11223/2013 (Dinesh Kumar and Another Vs. Suman Choukse and Ors.).

I have heard learned counsel for the parties and perused the record.

The petitioner/plaintiff has prayed for following relief in the plaint :-

A plain reading of the relief clause makes it crystal clear that the plaintiff has prayed for a declaration that sale deed be declared as void and inoperative. The bone of contention is based on full bench judgment delivered in Sunil Radhelia (Supra). No doubt, in the said case the first question was framed as under:-

Whether ad valorem court fees is not payment when the plaintiff makes an allegation on instrument is void and hence not binding upon him/them?

It is also true that the said question was answered by holding that ad valorem court fees is not payable when the plaintiff makes an allegation that instrument is void and hence not binding upon him. It is apt to mention that in the said case the plaintiff came up with the case that the document is a forged document and it does not bear his signature and he is not party to the sale deed. In the present case, admittedly, the plaintiff is party to the sale deed. In Full Bench judgment in Sunil Radhelia (Supra) the Court considered earlier judgment of Santosh Chandra (Supra). Thereafter, Division Bench in Ambika Prasad (Supra) considered the judgment of Sunil Radhelia (supra). The Division Bench noticed the judgment of Supreme Court holding the field i.e. Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, . In para 8 & 9 the Division Bench opined as under :-

Section 7(iv)(c) provides that in suits for 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.

In this case, there is not prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "coparcenary" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable u/s 7(iv) (c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.

In para 10 of the judgment of Ambika Prasad (Supra) Division Bench considered the aspect of void and voidable Acts. In para 11 of said judgment, in no uncertain terms it was made clear that the plaintiff was admittedly an executant of the sale deed which is sought to be declared as void. The Court opined that the sale deed is voidable as the apparent state of affairs is a real state of affairs and the plaintiff is obliged to prove it as void. Hence plaintiff needs to pay ad valorem court fees. In Ambika Prasad (Supra) Sunil Radhelia (Supra) was considered. In para 12 the Division Bench opined as under :-

It is true that in Sunil Radhelia (Supra) the Full Bench has held that ad-valorem court-fee is not payable when the plaintiff makes an allegation that the instrument is void and not binding on him even if he be the executant of the document. But it is equally true that the decision of the Supreme Court in Suhrid Singh (Supra) was not placed before the Full Bench and therefore, it is not referred therein. Had the decision of Suhrid Singh been brought to the notice of the Judges of Full Bench, in all probability they too would have taken the same view which we have taken.

In the opinion of this Court, the judgment delivered earlier by full Bench in Santosh Chandra (Supra) is considered by later full Bench in Sunil Radhelia (Supra). Although the Division Bench in Ambika Prasad (Supra) did not specifically referred about the earlier Full Bench judgment in Santosh Chandra (Supra), it did consider the later full Bench judgment of Sunil Radhelia in extenso. Since in Sunil Radhelia (Supra) the earlier Full Bench judgment of Santosh Chandra was considered. The consideration of later judgment of Sunil Radhelia (Supra) in Ambika Prasad (Supra) will mean deemed consideration of earlier judgment of Santosh Chandra (Supra). The judgment of Ambika Prasad by no stretch of imagination can be said to be a per incuriam judgment. The Apex Court in Central Board of Dawoodi Bohra Community and Another Vs. State of Maharashtra and Another, in para 7 opined as under :-

Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam. It is true that Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., was not referred to in any case other than Chandra Prakash case reported in (2002) 4 SCC 234 but in Chandra Prakash Case (Supra), Raghubir Singh case (Supra)and Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others, 1 both have been referred to and considered and then Parija case (Supra) followed. So the view of the law taken in a series of cases to which Parija case belongs cannot be said to be per incuriam.

Apart from this, judgment of Ambika Prasad (Supra) is based on the judgment of Supreme court in Suhrid Singh (Surpa). I am bound by this judgment. In view of this judgment, the petitioner needs to pay ad valorem court fee. Ranganayakamma (supra) is of no assistance to the petitioner. The said matter was arising out of final judgment of High Court of Karnataka. The said judgment does not deal with the question of valuation/court fees. In the facts and circumstances of this case, the said judgment is of no help to the petitioner.

In the opinion of this Court, curtains are finally drawn on the subject by the Supreme Court in Suhrid Singh (supra). I am unable to hold that in Ambika Prasad (supra) the Division Bench has committed any error. More so, when the judgment passed in Ambika Prasad is passed following the ratio of Suhrid Singh (Supra). As analyzed above, no infirmity or illegality can be found in the order impugned.

Petition is bereft of merits and is hereby dismissed. No Costs.