TARUN MALKAPURKAR Vs. JITENDRA AGRAWAL

JUDGEMENT

(1.) Being aggrieved by the order dated 21.4.2011 passed by 13 th Civil Judge Class II, Indore in Civil Suit No.69-A/2011, whereby application filed by the respondents No.1,4,5 and 6 under Order 7 Rule 11 CPC was allowed and the petitioner was directed to value the suit and pay the Court fees as per valuation of the suit, present petition has been filed.

(2.) Short facts of the case are that petitioner filed a suit for declaration, possession and permanent injunction alleging that respondent No.1 is the person, who has prepared a forged power of attorney on 17.10.2008. It was alleged that respondents No.3 to 6 are the persons, who have prepared the forged documents. It was alleged that vide sale deed dated 13.2.2003 petitioner purchased the suit property from Kantabai W/o Modiram and Pankaj S/o Modiram through Power of Attorney Dharshanlal. It was alleged that petitioner was in occupation of the land from the time of purchase. It was alleged that petitioner took a loan from respondents No.1,4 and 5 on 22.7.2005 for business. It was alleged that at that time the forged document was prepared by the respondents. In the suit it was prayed that decree as prayed be passed in favour of the petitioner. In the suit an application was filed by the respondents under Order VII Rule 11 CPC, wherein it was prayed that suit has not been valued properly and also the Court fees was not paid as per the provisions of Court Fees Act, therefore, the suit be dismissed. After hearing the parties learned Court below passed the impugned order, against which present petition has been filed.

(3.) Learned counsel for the petitioner argued at length and submits that impugned order is illegal, incorrect and deserves to be set aside. Learned counsel submits that since the petitioner is not a party to the document and the document is executed through Power of Attorney, therefore, learned Court below committed error in directing the petitioner to pay advalorem Court fees. Reliance is placed on a decision in the matter of Sunil Radhelia Vs. Awadh Narayan, 2010 4 MPHT 477, wherein Full Bench of this Court has held that when he plaintiff makes an allegation that the instrument is void, hence not binding on him, advalorem Court fee is not payable. It is submitted that petition filed by the petitioner be allowed and the impugned order be set aside.