PURUSHOTTAM JOSHI Vs. MADHU SHARMA

JUDGEMENT

(1.) HEARD Shri S. V. Dandwate, learned counsel for the petitioner and Shri M.K. Jain, learned counsel for respondents.

(2.) IT is a writ filed by the plaintiff. It seeks to challenge an order, dated 21.2.2003 (Annexure P-6), passed by the learned VIIIth Additional District Judge, Ujjain in his (plaintiff's) suit whereby he is asked to pay ad valorem court-fees on the plaint. The impugned order is passed on an application (IA No. 3) made by the defendant under Order 7 Rule 11 of CP. Code wherein prayer was made to reject the plaint on the ground of non-payment of ad valorem adequate court-fees on the plaint. It is this prayer which found acceptance to the learned trial judge giving rise to its challenge by the plaintiff in this writ.

(3.) IF one sees the plaint in question keeping in view the aforesaid rule of law relating to court-fees then in my view, the impugned direction to the plaintiff to pay the ad valorem court-fees has to be upheld calling no interference. It is a settled rule of law that if the plaintiff seeks a cancellation of a sale deed to which he himself is a party then he has to pay an ad valorem court-fees on the value so mentioned in the sale deed. It is only when he is not a party to a document sought to be cancelled by way of decree, then no ad valorem court-fees is payable. The present is a case which falls in a former category and hence, plaintiff can not avoid payment of ad valorem court-fees on the plaint while seeking a declaration of its cancellation. As a matter of fact close perusal of plaint shows that plaintiff's son in whose favour the plaintiff had executed a power of attorney to sell the suit property executed the sale deed in favour of defendant. So it is a case where plaintiff himself becomes a party to the impugned sale deed because it was executed by him through his son a power of attorney holder for and on his behalf. It is not the case of plaintiff, that he had cancelled the power of attorney prior to execution of sale deed and hence, he cannot be regarded as party to the sale deed in question. In such case, the position would have been different because then it becomes a case where a sale deed is held executed by a person who was not having an authority on the date of execution of sale deed. In such event, the plaintiff cannot be made to pay ad valorem court-fees because he is not a party to the transaction either directly or through his power of attorney holder. As held supra, such was not case pleaded in the plaint.