Smt. Kamla v. Smt. Tarabai Chaturvedi

of possession of the property. In such circumstances, no illegality is committed by the learned trial Court.

Heard learned counsel for the parties and perused the record. The law with respect to payment of court fees is being settled by the Full Bench of this Court in the case of Sunil Radhelia and others Vs. Awadh Narayan and others, reported in 2010(4) M.P.H.T. 477 (FB ), wherein the Full Benches are answered the references in para 16 as under:-

16. To sum up, the questions referred to this Court are answered thus:-

(1) Ad valorem Court fee is not payable when the plaintiff makes an allegation that the instrument is void and hence not binding upon him.

(2) The decision rendered in Narayan Singh (supra), lays down the law correctly that the plaintiff a party to the instrument is not required to pay ad valorem Court fee as he had made an allegation that the instrument was void on the ground that the document was forged one and it does not bear the signature of the executant.

Now matter be placed before the Division Bench for deciding the case in accordance with law.

It is seen from the aforesaid order that if the fraud is being pleaded then he is required to seek a declaration in the document but if a consequential relief is being prayed as which has been prayed by the present petitioners for restoration of the possession then he is required to pay the ad valorem court fees in terms of the provisions of Court Fees Act. The Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, reported in (2010) 12 SCC 112- has considered the similar aspects.

Considering the facts and circumstances of the case, the Hon'ble Supreme Court has categorically held that court fees are liable to be paid in terms of Section 7 (iv)(c) read with Section 5 of the Court Fees Act. Placing reliance upon the aforesaid judgment the Division Bench of this Court in the case of Ambika Prasad and others Vs. Shri Ram Shiromai @ Chandrika Prasad Dwivedi and another, 2011(3) M.P.L.J. 184 , has held that:- Where the executant of the

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sale deed wants it to be annulled, he has to seek cancellation of that deed for which ad valorem Court fee on the consideration stated in the sale deed is payable. The plaintiffs in their suit for declaration have prayed that the sale deed be declared as void by alleging that it was executed by plaintiff No.1 and his thumb impression were obtained on it by playing fraud and misrepresentation. The sale deed is voidable and the plaintiffs who have alleged otherwise are obliged to prove it as void. The plaintiffs, therefore, are required to pay ad valorem court fees.

In the present case also, in the aforesaid judgment the Division Bench is also placed reliance upon the Full Bench judgment of this Court in the case of Sunil Radhelia (supra).

In the present case, admittedly the relief which has claimed is of permanent injunction against the defendants not to create any third party interest or not to transfer the property to any one and second relief which has been claimed is that the defendant No.1,2,3,4,5 and 6 be directed to hand over the possession of the property to the plaintiffs. Thus, apart from declaration with respect to injunction against the respondents, the consequential relief restoration of possession have also being prayed, the same cannot be done without cancellation of the sale deed. In such circumstances, as the consequential relief for restoration of possession is also being claimed in the matter, the plaintiff is required to pay the ad valorem court fees on the amount in terms of the sale deed.

In such circumstances, no illegality has been committed by the learned trial Court in allowing the application.

This is a petition under Article 227 of the Constitution of India having limited scope of interference. The Hon'ble Supreme Court has considered the aspect in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar Patil

reported in (2010) 8 SCC 329, wherein certain guidelines have been issued by the Supreme Court, which are as under :-

"The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure

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(VISHAL MISHRA)

JUDGE

that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner."

In view of the aforesaid facts and circumstances of the case and also the law laid by the Hon'ble Supreme Court in the case of Shalini Shyam Shett, this Court does not find it appropriate to interfere in the impugned order. The order is just and proper.

Accordingly, the petition sans merit and is hereby dismissed.

irfan

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