HARINARAYAN Vs. GULABCHANDRA

JUDGEMENT

(1.) Being aggrieved by the order dated 1-10-10 passed by Civil Judge, Class 11, Sitamhow in Civil Suit No. 116-A/08, whereby learned Trial Court directed the Petitioner to pay ad valorem Court fee on the market value of the suit property, present petition has been filed.

(2.) Short facts of the case are that the Petitioner filed a suit for declaration to the effect that the sale deed dated 11-6-08 executed by Respondent Nos. 1 and 2 in favour of Respondent Nos. 3 and 4 be declared void so far as it relates to the share of Petitioner and also permanent injunction. The suit was contested by the Respondent Nos. 3 and 4, who have purchased the property from Respondent Nos. 1 and 2, wherein it was alleged that the Petitioner cannot challenge the validity of the sale deed unless and until Petitioner pays the ad valorem Court fee. It was alleged that the Respondent Nos. 1 and 2 sold the property to Respondent Nos. 3 and 4 for a consideration of Rs. 5,51,000/-, therefore, Petitioner is liable to pay ad valorem Court fee. It was prayed that the Petitioner be directed to pay ad valorem Court fee on the amount of sale deed. The application filed by Respondent Nos. 3 and 4 under Order VII Rule 11, Code of Civil Procedure was opposed by the Petitioner on various grounds including on the ground that since the Petitioner is not party to the sale deed, therefore, Petitioner is at liberty to value the suit as per his discretion and is not liable to pay ad valorem Court fee. It was prayed that the application be dismissed. After hearing the parties, learned Trial Court allowed the application filed by Respondent Nos. 3 and 4 and directed the Petitioner to pay ad valorem Court fee, against which present petition has been filed.

(3.) Learned Counsel for the Petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that since the Petitioner was not party to the sale deed, therefore, learned Court below committed error in holding the Petitioner liable for payment of ad valorem Court fee. Learned Counsel placed reliance on a decision in the matter of Sunil v. Awadh Narayan, 2010 4 MPHT 477, wherein Full Bench of this Court had an occasion to take into consideration Section 7(iv)(c) and Schedule II, Article 17 (iii) of the Court Fees Act and held that when the Plaintiff makes an allegation that the instrument is void and hence not binding on him and a declaration simplicitor is prayed, then he is not required to pay ad valorem Court fee. In such case, a fixed Court fee under Article 17, Schedule II of the Court Fees Act will be payable. It was further held that in a suit for permanent injunction and for declaration, when document was alleged to be illegal, void and executant had not signed the document, it was not necessary to make payment of ad valorem Court fee. On the strength of aforesaid position of law, learned Counsel submits that the petition filed by the Petitioner be allowed and the impugned order whereby Petitioner has been directed to pay ad valorem Court fee be set aside.