LAXMIKANT DUBE Vs. PIYARIA

JUDGEMENT

(1.) THIS is a revision by the defendants against the order by which their application under Order 7 Rule 11 (b), CPC for rejection of the plaint on the ground of undervaluation has been turned down.

(2.) THE plaintiffs have filed the suit seeking the declaration that the two registered sale-deeds dated 20-6-2000 in respect of the lands in dispute which are said to have been executed by defendant No. 1 Smt. Malo in favour of the defendant Nos. 2 to 4 at the instance of the defendant Nos. 5 and 6 are void and have no adverse effect on the rights of the plaintiffs on these lands. The plaintiffs have valued the relief for declaration at Rs. 4,70,200/-, the consideration shown in the sale-deed, for purposes of the pecuniary jurisdiction of the Court and have paid fixed Court fee as provided in Article 17 Schedule II of the Court fees Act. The objection of the defendants is that the suit ought to have been valued ad valorem for purposes of Court fee also. This objection has been overruled by the Trial Court by the impugned order on the ground that the plaintiffs are not parties to these sale-deeds.

(3.) AFTER hearing the learned counsel for both the sides this Court is of the opinion that the suit has not been undervalued for purposes of Court fee. It is well settled that the question of Court fee must be considered in the light of allegations made in the plaint and its decision can not be influenced either by the pleas in the written statement or by the final decision of the suit on merits. [sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245, Sub-hash Chand v. M. P. E. B. , 2000 (4) M. P. H. T. 318 (FB) = 2000 (3) MPLJ 522]. In the present case the averments in the plaint are that Jageshwar Prasad Mishra was the Bhumiswami of the lands in dispute and after his death he left behind his three heirs. The plaintiff No. 1 is widow of his son Dadoli and the plaintiff No. 2 is his daughter. Defendant No. 1 Smt. Malo is also his daughter. She is a totally disabled person. There has been no partition amongst the heirs of Jageshwar Prasad and therefore Smt. Malo could not sell the suit lands to the defendant Nos. 2 to 4. Thus according to the plaint the plaintiffs are not the executants of the sale-deeds in question. It is not necessary for them to have the sale-deeds cancelled or set aside. The fixed Court fee has been properly paid under Article 17 Schedule II of the Court Fees Act [om Prakash v. Suratram, 1994 MPLJ 291 and Ambaram v. Pramilabai, 1997 (1) MPLJ 13]. The Full Bench of this Court has held more than 30 years ago in Santosh Chandra and Ors. v. Gyansunder Bai, 1970 MPLJ 363, that if the plaintiff is not bound by the decree, agreement or liability and if he is not required to have it set aside, he can claim to pay Court fee under any of the sub-clauses of Article 17, Schedule II of the Court Fees Act. Therefore, it is settled law that a person who is not a party to the sale-deed and who is not bound by it need not pay ad valorem Court fee on the basis of the consideration shown in the sale-deed. Similarly, a party who alleges that the sale-deed is sham and bogus document need not pay ad valorem Court fee. He is required to pay ad valorem Court fee only when the sale-deed has been executed by him and he seeks to avoid it on the ground of fraud or misrepresentation practised on him as to the contents of the sale-deed.