Syed Asadulla Hussaini vs Syed Shahedullah Hussaini

The petitioner-plaintiff filed this revision aggrieved by the order dated 08.02.2022 in passed in I.ANo.853 of 2017 in O.S.No.559 of 2017 on the file of the learned XI Additional Chief Judge, City Civil Court, Hyderabad, whereby the application filed by defendant Nos.2 to 4 praying the Court to reject the plaint was disposed of.

The petitioner herein is the plaintiff and the respondents herein are the defendants in the suit. O.S.No.559 of 2017 is filed by the plaintiff seeking for partition and separate possession and also cancellation of sale deed, rectification deed, gift deed and development agreement-cum-GPA etc. during the pendency of the suit defendant Nos.2 to 4 filed I.A.No.853 of 2017 for rejection of the plaint on the ground that there is deficiency of the Court fee and a false suit is filed without proper reason.

In a counter filed by the plaintiff in the rejection application he submitted that he and the second respondent are absolute owners and possessors of the suit schedule property. The plaintiff denied the fact that he offered to sell the property for a consideration of Rs.67,00,000/-. The plaintiff mainly contended that he was not in India at the time of execution of registered sale deed dated 01.12.2016 and filed passport in support of his contention. As he disputed the execution of the sale deed, the question of executing alleged gift settlement deed by the first defendant or delivery of possession does not arise. The plaintiff further contented that he is not a party to the alleged documents and they were valued notionally and he need not pay court fee as pleaded by the defendants as per the law laid down in AIR 2010 SC 2087 and that the documents are sham and fabricated.

The trial Court after considering the arguments advanced by both the counsel, discussed the facts at length and directed the plaintiff to correct the valuation of the reliefs sought under prayer B - cancellation of sale deed dated 1. 12.2016, C - cancellation of rectification deed dated 05.01.2017, D - cancellation of gift settlement dated 10. 01.2017 and E - cancellation of development agreement-cum-GPA dated 25.01.2017 and to pay court fee as provided under Section 37 of T.S.C.F. and S.V. Act on or before 08.03.2022, failing which the plaint is liable to be rejected. Aggrieved by the said order the plaintiff preferred this revision.

Learned counsel appearing for the plaintiff relied upon a case law in MOHD. IKRAMUDDIN V/s. SANGRAM BOSLE 2007 (5) ALT 607 in which it was held that the plaintiff need not pay court fee for cancellation of the document. Learned counsel further relied upon a citation reported in SUHRID SINGH V/s. RANDHIR SINGH AIR 2010 SC 2807 holding to the effect that the trial Courts and the High Court were not justified in holding that the effect of the prayer was to seek cancellation mentioned in the sale deeds.

Learned counsel for the plaintiff alleged that the plaintiff and the first defendant were not in India and the documents sought for cancellation were brought into existence by defendant Nos.2 to 4 in collusion with defendant Nos.5 and 6 to knock away the property of the plaintiff. The cancellation of the documents is consequential in nature and as such the court fee cannot be paid separately under Section 37 of the Act. Learned counsel would also assert that as the plaintiff filed suit for partition for himself and defendant, he paid a fixed court fee of Rs.200/-. But the trial Court erred in directing the plaintiff to pay the court fee for the prayers C, D and E of the plaint.

It is apposite to extract Section 37 of A.P. Court-fees and Suits Valuation Act, 1956:

Suits for cancellation of decrees, etc.:-

(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit, and such value shall be deemed to be –

(a) if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;

(b) if a part of the decree or other document is sought to be cancelled such part of the amount or of the value of the property;

(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff’s share in any such property, fee shall be computed on the value of such property, or share or on the amount of the decree, whichever is less.

Explanation:- A suit to set aside an award shall be deemed to be a suit for cancellation of a decree within the meaning of this section.’

Admittedly, the present suit is filed not only for partition and separate possession but also for cancellation of sale deed, rectification deed, gift deed and development agreement-cum-GPA. As such the trial Court after considering the arguments of both the counsel, directed the plaintiff to pay the court fee as per Section 37 of the Act on or before 08.03.2022 from the date of order, failing which the plaint is liable to be rejected.

I do not find any infirmity in the order under revision and thus, the revision is devoid of merits and is liable to be dismissed.

In the result, the civil revision petition is dismissed confirming the order revision.

Miscellaneous Petitions, if any, pending in this revision shall also stand dismissed in the light of this final order.