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SMT. SUDHA DEVI & ANOTHER versus A.D.J., BIJNOR & ANOTHER

High Court of Judicature at Allahabad

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Smt. Sudha Devi & Another v. A.D.J., Bijnor & Another - WRIT - C No. 26039 of 2001 [2003] RD-AH 252 (1 August 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.9

Civil Misc. Writ Petition No.  26039 of  2001

Smt.  Sudha Devi and another v. Additional District Judge, Court No.7, Bijnor and another.

Hon'ble R.K.Agrawal, J.

The present writ petition has been filed by the petitioners seeking a writ, order or direction in the nature of certiorari quashing the order dated 16th April,2001 passed by the Additional District Judge, Court no.7, Bijnor, respondent no.1, filed as Anneuxre-4 to the writ petition.

Briefly stating the facts, giving rise to the present petition, are as follows:-

Respondent no.2 filed a suit for cancellation of the sale deed said to be executed by his father in favour of the present petitioners.  The suit was filed in the court of Civil Judge (Junior Division), Najeebabad, district Bijnor and was registered as Original Suit No.136 of 1999.  In the said suit the respondent no.2 had prayed for the following reliefs:-

"( AA) YEH KI PRATIVADINEEGAN APNE PAKSHA MEIN VADI KE PITA MOHAN SINGH SE DINANK 22/1/99 KO KARYALAYA SUB REGISTRAR NAJEEBABAD MEIN JUDGMENT AND ORDER DATED BAINAME TAHRIR VA TAKMEEL KARAYE JINKI BAHI NNUMBER 1,1286 KE PRISHTHA 268/AD0FA0, BOOK-1 ZILDA 1300 KE PRISHTHA NUMBER 207 PAR DINANK 22/1/99 KO TATHA BAHI NUMBER 1, ZILD 1285 MEIN PRISHTHA 288/AD.FA. BOOK-1 ZILDA 1300 KE PRISHTHA 257-258 MEIN NUMBER 208 PAR DINANK 22/2/1999 KO REGISTRY KI GAYEE MANSOOKH FARMAI JAKAR ADESH KI EK PRATI KARYALAYA SUB REGISTRAR NAJEEBABAD KO BHEJI JAI

(BA)   YEH KI SARVAVAD VYAYA VADI KO PRATIVADINIGAN SE DILAYA JAYE.

(SA)    YEH KI ANYA ANUTOSH JUDGMENT AND ORDER DATED VADI KE HAQ MEIN HO, NYAYALAYA DWARA SWAYAM PRADAN KIYA JAYE"

Before the learned Civil Judge (Junior Division), an objecting was raised by the petitioners that the suit has been undervalued as court fees is payable on the sale consideration mentioned in the sale deed and not on the basis of thirty times of the land revenue.  The objection was sustained by the learned Civil Judge vide order dated 25.5.2000.  He held that the court had no jurisdiction to hear and decide the suit.  Further, he directed the plaintiff to pay court fee and present the claim before the competent court.  The respondent no.2 preferred a revision before the District Judge, Bijnor.  Revision was heard by the Additional District Judge, Court no.7,  Bijnor, who vide order dated 16th April, 2001 allowed the revision and set aside the order dated 25.5.2000  holding that the suit has been properly valued.

I have heard Sri Anil Sharma, learned counsel for the petitioners and Sri A.N. Pandey, holding brief of Sri Devraj, learned counsel for the respondent no.2.

          Learned counsel for the petitioners submitted that since the suit was filed for cancellation of the sale deed, the court fee under Section 7(iv-A) of the Court Fees Act, 1870 was liable to be paid and the valuation made by the plaintiff and payment of the court fee on the basis of thirty times of the land revenue was not correct.

Learned counsel for the respondent no.2, however, submitted that as the land, which was the subject matter of sale deed,  was agricultural land, the plaintiffs  had rightly valued the suit as on the basis of thirty times of the land revenue and, thus, there is no illegality in the order passed by the learned Additional District Judge.  He also submitted that the present petition is not maintainable as the petitioners have no right to question the payment of court fee. He relied upon a decision of the Hon'ble Supreme Court in the case of Sri Rathnavarmaraja v. Smt. Vimla, reported in AIR 1961 SC 1299 where the Hon'ble Supreme Court has held that  whether  proper court fee is paid on a plaint is primarily a question between the plaintiff and the State .  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 court by appeal or in revision against the order adjudging payment of court fee payable on the plaint.

Sri Anil  Sharma, learned counsel for the petitioners, however, submitted that the Hon'ble Supreme Court in the case of Sujir Keshav Nayak v. Sujir Gnesh Nayak, reported in AIR 1992 SC 1526, has held that where the question of court fee is linked with the jurisdiction the defendant has a right to raise objection and the court should decide it as a preliminary issue.

Having heard the learned counsel for the parties, I find that from the reliefs claimed by the respondent no.2 in the plaint disbelieved that the suit was for cancellation of the sale deed said to have been executed by his father in favour of the petitioners.  Under Section 7(iv-A) a suit for cancellation or adjudging void instruments and decrees where the plaintiff or his predecessor-in-title was not a party to the decree or the instrument, according to one fifth of the value of the subject matter is to be taken for the purpose of valuation of the suit.  In the case of Anwarul Haq and others v. 1st Additional District Judge, Mau and others, reported in 1998(1) AWC 573, this Court has held that where the suit is for cancellation of the sale deed, the court fee is payable under Section 7(iv-A) of the Court Fees Act, 1870.  Thus, the revisional court was not justified in holding that the court fee is payable on the basis of thirty times of the land revenue.  In fact, it was payable under Section 7(iv-A) of the Court Fees Act, 1870.  So far as the question regarding right of the present petitioners to challenge the order passed by the revisional court is concerned, I find that the question of valuation and payment of court fee is linked with the jurisdiction of the court of Civil Judge(Junior Division) and, thus, he has a right to approach Civil Judge (Junior Division) by raising objection and to approach this Court as held by the Hon'ble Supreme Court in the case of Sujir Keshav Nayak v. Sujir Gnesh Nayak(supra).

In view of the aforesaid discussion, the impugned order dated 16th April, 2001 cannot be sustained and is hereby set aside.  The writ petition succeeds and is allowed.

1.8.2003

mt


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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