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AJAY TIWARI versus HIRDAY RAM TIWARI & OTHERS

High Court of Judicature at Allahabad

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Ajay Tiwari v. Hirday Ram Tiwari & Others - FIRST APPEAL FROM ORDER No. 691 of 2006 [2006] RD-AH 12955 (4 August 2006)

 

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

RESERVED

F.A.F.O. No.691 of 2006

Ajay Tiwari..........................................Appellant.

Versus

Hirday Ram Tiwari and others................Respondents.

Hon'ble R.P.Misra, J.

Hon'ble Pankaj Mithal, J.

( Delivered by Hon'ble Pankaj Mithal,J. )

This is a First Appeal From Order under Section 6-A of the Courts Fees Act read with Section 104 C.P.C. against the order of the Additional Civil Judge (Senior Division) Court No. 13 Allahabad dated 04.08.2005 passed in Original Suit No. 674 of 2004 Ajay Tiwari Vs. Hriday Ram Tiwari and others. The Court below by the said order has decided Issue No. 2 with regard to valuation and payment of court fees and has held that the suit has rightly been valued at Rs. 10.0 lacs but the plaintiff/appellant has not paid proper court fees.

The plaintiff/appellant Ajay Tiwari filed Original Suit No. 674 of 2004 Ajay Tiwari Vs. Hriday Ram Tiwari and others in the Court of Additional Civil Judge (Senior Division) Allahabad for declaring the sale deed dated 26.06.2004 registered on 05.07.2004 in respect of House No. 18/25, Mundera Bazar, Allahabad and executed by Hriday Ram Tiwari defendant No. 1 in favour of Ramesh Kumar Kushwaha and others, defendant No. 2 to 5 to be declared as null and void. No consequential relief thereof has been claimed. The plaintiff/appellant valued the suit as per the market value of the property on Rs. 10.0 lacs and paid court fees of Rs. 200/- only. The defendants/respondents contended that the suit is essentially for the cancellation of the sale deed, and, therefore, the court fees of Rs. 200/- is inadequate and thus the suit cannot proceed unless proper court fees is paid. Accordingly, Issue No. 2 was framed with regard to the valuation of the suit and the amount of court fees payable. The said issue has been decided by the impugned order and, therefore, the appeal.

The appeal was presented with some delay and the delay in filing the same was condoned vide Court's order dated 03.03.2006. Now the appeal has come up for admission/final disposal. Since all the parties are duly represented and the counsels have agreed for the disposal of the appeal at the admission stage, the same is being decided finally.

We have heard Shri Anil Kumar Sharma learned counsel for the plaintiff/appellant, Shri P.K. Goswami and Shri Hari Mohan Srivastava on behalf of the defendants/respondents and the Standing Counsel on behalf of the State of U.P..

Learned counsel for the plaintiff/appellant contends that the suit has been instituted simply for declaring the sale deed as null and void with no consequential relief. Therefore, he is liable to pay court fees in accordance with Article 17(iii) of Schedule II of the Court Fees Act, 1870. He has already paid court fees of Rs. 200/- which is more than the amount prescribed under the above Article to the Schedule II. In support of his argument he has relied upon AIR 1968 Alld 216 Smt. Bibbi and another Vs. Shugan Chand and others, AIR 1971 Supreme Court 87 and 1992 Allahabad Law Reports 831 Smt. Safali Roy Vs. Hero Jaswant Das.

On the other hand the counsel for the defendant/respondents contended that Article 17(iii) of Schedule II is not applicable in the present case inasmuch as Section 7(iv)(a) read with (iv-A) of the Act as applicable to U.P. specifically provides for the payment of ad-valorem court fees according to the market value of the subject matter of the instrument.

For the sake convenience Article 17(iii) of Schedule II of the Act and Section 7 of the Act are reproduced below:

"17. Plaint or memorandum of appeal

in each of the following suits:

(i) ....

(ii) ....

(iii) to obtain a declaratory decree

where no consequential relief is Rs. 30/-

prayed in any suit, not otherwise

provided by this Act.

"7.  Computation of fees payable in certain suits for money.

The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

...........

.........

......

......

            For a declaratory decree with consequential relief...(iv) In suits .....

(a) to obtain a declaratory decree or order, where consequential relief other than reliefs specified in sub-section (iv-A) is prayed; and

.......

(iv-A) for cancellation or adjudging void instruments and decree - In suits 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) .....

A bare perusal of the above provisions makes it abundantly clear that the present suit for declaring the sale deed as null and void would not fall under Article 17(iii) of Schedule II inasmuch as the said Article itself provides that a fixed court fees under the said Article is payable only where the item is not otherwise provided for by this Act. The suit involving cancellation of or adjudging void and an instrument involving property having market value is specifically chargeable under Section 7 (iv-A) of the Act. Therefore, the court fees in the present suit shall be payable in accordance with Section 7(iv-A) of the Act on the market value of the property which is subject matter of the sale deed. No doubt the plaintiff/appellant has not prayed for any consequential relief, but in essence and substance the suit is one for the cancellation of the sale deed and as such also is covered by Section 7(iv-A) of the Act. A reliance may be placed upon the judgment of this court in the matter of Anwar-Ul Haq and others Vs. Ist Additional District Judge Mau and others 1998 (1) AWC 573.

The learned counsel for the plaintiff/appellant has placed reliance upon the full bench judgment of the Allahabad High Court AIR 1968 Alld 216 Smt. Bibbi and another Vs. Shugan Chand and others. The aforesaid judgment in no way supports the plaintiff/appellant and on the contrary it clearly lays down that suit for declaring the sale deed unauthorized, void, illegal and ineffective falls within the ambit of Section 7(iv-A) of the Act, and, therefore, Article 17(iii) of Schedule II does not apply.

The other two authorities relied upon by the learned counsel for the plaintiff/appellant AIR 1971 Supreme Court 87 State of U.P. Vs. Ram Kishan Burman and 1992 ALR 831 (Alld) Smt. Shefali Roy Vs. Hero Jaswant Das (Supra) are distinguishable on the facts and circumstances and as such of no help to the plaintiff/appellant.

The division bench of the Allahabad High Court dealing with some what a similar controversy in the case of Smt. Veena Bahl (deceased) and others Vs. Vishnu Kumar and others 2005 (5) ALJ 36 considering the entire case law on the subject including the full bench ruling of the Allahabad High Court in the case of Chief Inspect of Stamps Vs. Mahant Laxmi Narain AIR 1970 Alld 488 held that a suit for declaratory decree in respect of the specified property along with a consequential relief of injunction falls under Section 7(iv)(a) of the Act and, therefore, Article 17(iii) of Schedule II is not attracted. No doubt in the present suit, no consequential relief has been claimed but the relief prayed for squarely falls within the ambit of Section 7(iv-A) and, therefore, court fees shall be payable upon the market value of the subject matter of the sale deed and the suit shall not be covered by Article 17(iii) of Schedule II. The High Court in the above judgment further observed that the view taken in the case of Smt. Shefali Roy Vs. Hero Jaswant Das 1992 ALR 831; AIR 1992 254 was not followed by the subsequent division bench ruling in the case of Kailash Chand Vs. Vth A.C.J. Meerut AIR 1999 Alld. 151 which had placed reliance upon the full bench decision in the case of Smt. Bibbi Vs. Shugan Chand AIR 1968 Alld. (Supra).

To conclude in view of full bench decision in the case of Smt. Bibbi and another Vs. Shugan Chand and others (Supra) a sale-deed being a document securing other property within the meaning of Sec. 7 (iv-A) of the Act, a suit for declaration of the sale-deed as null and void squarely falls within the four corners of Sec. 7(iv-A) and Art. 17 (iii) of She. II which applies to suits not otherwise provided for in the Act does not come into play.  

The learned counsel for the plaintiff/appellant faintly argued that it is not open for the defendants/respondents to take any objection with regard to the inadequacy or deficiency in payment of court fees. The above submission has no merits as the question of deficiency or payment of proper amount of court fees can also be raised otherwise then by the officers of the State or the Revenue. Section 6(4) of the Act stipulates that whenever a question of proper amount of court fees payable is raised otherwise then under sub-Section (3) of Section 6 i.e. by person other than the officers mentioned in Section 24-A of the Act, the Court shall decide such question before proceedings with any other issue. Thus the Court is empowered to decide the question of payment of proper amount of court fees even if it has not been raised by the officers of the State or Revenue. Therefore, the submission has no force and is not acceptable more particularly as the same was not even raised in the court below.

In view of the above discussion we are of the considered opinion that the present suit involves cancellation or adjudication as void or voidable the instrument of sale deed, therefore, the court fees in the suit is payable as per Section 7(iv-A) of the Act. Therefore, the Court below has not committed any error in passing the impugned order dated 04.08.2005 directing the plaintiff/appellant to make the good deficiency in the court fees according to the above provision.

The First Appeal From Order is, accordingly, dismissed with no orders as to costs.

August 4,2006


Copyright

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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