Shyamacharan Paul and Another vs Roopali Promoters and Construction and Others

Dipak Misra, J.

In this intra Court appeal, the challenge is to the order dated 12-9-2008 passed by the learned single Judge in Writ Petition No. 14545/2007.

The appellants as petitioners invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India calling in question the legal validity of the order dated 25-8-2007 passed by the learned Second Additional District Judge, Jabalpur in Civil Suit No. 16453/2007. The learned single Judge has concurred with the conclusion recorded by the trial Judge whereby he had held that the appellants as plaintiffs were required to affix the ad valorem Court-fee for declaring the sale-deed 11-5-2004 registered on 12-5-2004/14-5-2004 as null and void.

We have heard Mr. Shripal Jain, learned Counsel for the appellants, on the question of admission. It is submitted by Mr. Jain that the plaintiff were trying to avoid the sale-deed and, therefore, they are only required to pay the fixed Court-fee.

On a perusal of the order passed by the learned single Judge, it is perceivable that he has referred to the relief Clause of the civil suit which clearly mentions for declaring the document executed by defendant No. 3 in favour of respondent Nos. 10 to 30 as null and void and to deliver the possession and prayed for other ancillary reliefs. On a perusal of the relief clause, it is clear as crystal that it contains consequential reliefs. That apart, the plaintiffs are parties to the document. They intend to declare the sale deed null and void. As is manifest from the order of learned single Judge, he has referred to the decision rendered in Pratap v. Punia Bai (1976) 25 JLJ 503.

In this context, we may profitably refer to the decision rendered in Kunti Devi w/o of Ramdas v. Roshanlal s/o Ramdas 1987 MPLJ 25 wherein this Court, after referring to the decisions rendered in Shamsher Singh Vs. Rajinder Prashad and Others, , Ashok Vs. Nara Singh Rao and Others, ; Dattaji Parashramji Patil v. Mst. Bhagirathi ILR 1939 Nag 373 and Santoshchandra and Others Vs. Smt. Gyansundarbai and Others, held that the plaintiffs, being parties to the sale-deed, are prima facie bound by it and the relief of declaration simpliciter is not available. The declaration claimed by the plaintiffs necessarily involved a prayer for consequential relief of cancellation of the sale deed, therefore, the Court-fee is payable u/s 7(iv)(c) of the Court-Fees Act.

In Mohammad Jameel Khan and Others Vs. Miththu Lal and Others, , it has been that while considering the question of payment of Court-fee, the allegations contained in the plaint have to be seen. The plaintiff cannot be permitted to mould the facts and circumstances and the real intention. It transpires that the intention of the plaintiff was something different than what had been claimed. The Court cannot overlook it. In case where the plaintiff sought a declaratory relief only, but in substance aimed at setting aside the sale-deeds, the Court-fee has to be paid in accordance with the law governed by Section 7(iv)(c) of the Court-Fees Act. The third parties without notice of the alleged fraud can acquire rights and interest in the property and get it enforced against the person defrauded. It cannot, under the circumstances, be taken that he was not a party to the document. Unless the document is got cancelled by a decree of Court, it remains a valid document. The relief of declaration cannot be sufficient. The plaintiff has to ask for a consequential relief of cancellation of the sale-deed in order to avoid it. Consequently, a consequential relief of cancellation of sale-deed is necessary and the plaintiff was required to pay ad valorem Courtfee on the value of the sale deeds u/s 7(iv)(c) of the Court-Fees Act.

In the case at hand, the plaintiffs are parties to the sale-deed. In view of the same, the law enunciated in the aforesaid decision is applicable and, therefore, they are liable to pay ad valorem Court-fee and not the fixed Court-fee. That apart, there is a consequential prayer in the suit. Thus, considering the factual scenario in entirety, we are of the considered opinion that the concurrence of the learned single Judge with the order passed by the learned Additional District Judge which requires the plaintiff to pay ad valorem Court-fee cannot be found fault with.

We have carefully perused the analysis made by the learned single Judge. Regard being had to the analysis made by him, we are of the considered opinion that in view of the obtaining factual matrix, especially with regard to the prayer made, the appellants are required to pay the ad valorem Court-fee and not the fixed Court-fee.

Consequently, the writ appeal, being devoid of merit, stands dismissed in limine. We may note with profit that we have dealt with the appeal on merits despite the fact that the writ petition was preferred under Article 227 of the Constitution and the learned single Judge has dealt with the same under Article 227 of the Constitution though the same could have been thrown overboard on the ground of maintainability.