RAMESHWAR DAYAL KHANDELWAL Vs. GARIMA

JUDGEMENT

(1.) PETITIONER /plaintiff filed a suit for declaration and permanent injunction (Annexure P/2). The defendants filed an application under Order 7 Rule 11 C.P.C. (Annexure P/6) contending that the plaintiff has sought a declaration that sale deed dated 21.07.2008 be declared as nullity and inoperative and has paid only Rs. 2,000/ - as court fees. The plaintiff is signatory to the sale deed and therefore, he need to pay ad valorem court fees. Parties were heard on this application. The court below by order dated 19.09.2013 partly allowed the said application and directed the plaintiff to pay the court fees as per value of the sale deed. This order is called in question in this petition filed under Article 227 of the Constitution.

(2.) SHRI K.S. Tomar, learned senior counsel for the petitioner assailed the order on the ground that the sale deed is a void document. It is urged that where a person sought the relief for avoiding the instrument in which he is a party and signed by him, said document is void ab initio and he is not bound by said document. Ad valorem court fees is not required to be paid in those cases. Shri Tomar submits that in absence of full payment of consideration, sale deed is a void document in the eyes of law. He relied on : 1970 MPLJ 363 (Santosh Chandra & Ors Vs. Gyan Sunder Bai and others) and full Bench judgment of this court reported in : 2010 (4) MPLJ 431 (Sunil S/O Dev Kumar Radhelia and others Vs. Awadh Narayan and others). The reliance is also placed on : 2008 (15) SCC 673 (Ranganayakamma and another Vs. K.S. Prakash and others). Learned senior counsel submits that in subsequent Division Bench Judgment reported in : ILR 2011 MP 154 (Ambika Prasad Vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi & Anr.) The judgment reported in Santosh Chandra (Supra) was not considered and therefore, the Judgment of Ambika Prasad (supra) is distinguishable. In addition, it is urged that the judgment of Sunil Radhelia (supra) delivered by full Bench is not properly considered by the Division Bench in Ambika Prasad (supra). In nutshell, it is urged that since the sale deed is a void document, no court fees is payable in the facts and circumstances of this case.

(3.) I have heard learned counsel for the parties and perused the record.