HARISH PATEL Vs. SANJAY KUMAR

JUDGEMENT

(1.) He is heard on the question of admission.

(2.) Petitioner plaintiff has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 2.9.2013, (P-1), passed by 12th Civil Judge, Class-I, Bhopal whereby considering the application of respondent no. 5- defendant filed under Order 7, Rule 11 of CPC, the petitioner has been directed to make advolerum valuation of the suit on the value of the alleged sale deed, (Ann. P-3) executed by the respondent no. 3 in favour of respondent no. 4 and pay the court fee accordingly failing which the suit may be dismissed without extension of any further opportunity to correct the valuation and payment of the court fee accordingly.

(3.) The petitioner's counsel after taking me through the papers placed on record alongwith the impugned order argued that plaintiff accompanied with respondent nos. 1 and 2 had purchased the aforesaid land in their joint names from its earlier owner by registered sale deed, (Ann. P-2) and subsequently respondent nos. 1 and 2 themselves and respondent no. 3 by projecting herself to be the power of attorney holder of the present petitioner have jointly sold such land to the respondent no. 4 and he said that the petitioner has neither executed the power of attorney nor appointed to respondent no. 3, his sister to be his power of attorney to execute such document and without his consent under some conspiracy such sale deed, (Ann. P-3) was executed by the respondent nos. 1, 2 and 3 in favour of respondent no. 4. The property was remained and is still in possession of the petitioner. In continuation he said that as soon as the petitioner came to know about the aforesaid, then immediately he filed the impugned suit for declaration and perpetual injunction declaring the aforesaid sale deed, (Ann. P-3) to be ab initio void till the extent of petitioner and for perpetual injunction to protect his right over the land. But in pendency of the suit, aforesaid IA was filed by the respondent/ defendant no. 5, the subsequent purchaser from respondent no.4 for dismissal of the suit in the lack of proper valuation and court fee accordingly. He said that on proper appreciation of the available factual matrix, this application ought to have been dismissed by the trial court taking into consideration that such sale deed, (Ann. P-3) was executed by the respondent no. 3 on behalf of petitioner on the basis of forged and fabricated power of attorney, so also without consent of the petitioner and in such premises, only fixed valuation of the suit and the court fee accordingly is required in the matter and the same has been paid. The petitioner is not bound to value the suit on the value of the consideration of the sale deed, (Ann. P-2) and to pay the court fee accordingly and prayed for setting aside the impugned order by dismissing the aforesaid application of the respondent no. 5 by admitting and allowing this petition.