Vijay Giri Goswami v. Ku. Priya Agarwal

Court after hearing the parties vide impugned order dated 25.05.2024 directed the petitioner-defendant to pay the sufficient deficit court fees by the next date of hearing.

3. It is argued that the petitioner-defendant is not liable to pay the deficit court fee, rather fixed court fee was required to be paid which is rightly paid. In the counter claim, the petitioner-defendant has specifically denied the averments made by the respondents-plaintiffs and sought the relief for declaration of sale deed dated 05.09.2016 as null and void on the ground that the sale deed has been executed by the plaintiffs without any sale consideration and the petitioner has not handed over the possession of the suit property, therefore, the sale deed dated 05.09.2016 is void ab-initio. The petitioner's counsel has placed reliance on the judgment passed by the Full Bench of this Court in the case of Sunil Radhelia v. Awadh Narayan, reported in ILR 2010 MP 2454 in support of his arguments.

4. Per contra, counsel appearing for the respondents-plaintiffs has vehemently opposed the petitioner's contentions and supported the impugned order pointing out the fact that learned trial Court has rightly assessed the entire facts and circumstances of the case and directed the petitioner- defendant to pay the deficit court fees by the next date of hearing. It is contended that learned trial Court has rightly observed that in the counter case, the relief for declaring the sale deed dated 05.09.2016 as null and void is prayed for. The defendant is not even a party to the sale deed. The case law which has been relied by petitioner's counsel is not applicable to the facts and circumstances of the case. In view of the relief which has been claimed

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in the counter case, the petitioner is required to pay the ad valorem court fees. He has prayed for dismissal of the petition.

5. Heard learned counsels for the parties and perused the record.

6. The sole question which arises for consideration before this Court is whether the petitioner is required to pay the ad valorem court fees or not ?

7. This issue came up for consideration before the Full Bench of this Court in the case of Sunil Radhelia (supra) in a reference. The questions which was referred for consideration are as under :

"(1) Whether ad-valorem court fee is not payable when the plaintiff/plaintiffs make an allegation that the instrument is void and hence, not binding upon him/them?

(2) Whether 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 has made an allegation that the instrument is void?"

8. After due deliberations, the Full Bench has answered the reference 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.

9. In view of the aforesaid settled proposition of law, if the case of the petitioner is seen, then in the counter claim filed by the petitioner, the relief which has been claimed is regarding cancellation of sale deed. The sole ground which has been taken by the petitioner is that the sale deed has been

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executed without payment of any consideration, therefore, the sale deed is null and void from the very inception. The question which was considered by the Full Bench has dealt with the proposition that the party is not required to pay ad valorem court fees on the instrument when a specific ground that the document is void because it has been obtained by playing fraud. However, in the present case, there is no such averment in the counter claim with respect to document being void because of fraud being played. It is only pointed out that the consideration amount is not paid, therefore, sale deed is void ab initio. Whether consideration amount is paid or not being a matter of evidence, cannot be discussed at this stage. There is no averment in the counter claim that the sale deed has been executed by playing fraud or does not bear the signatures of the petitioner. Under these circumstances, the judgment relied upon by the petitioner is not applicable to the facts and circumstances of the case. The learned trial Court has rightly analyzed all the facts of the case including that of counter claim as well as the relief which has been claimed by the petitioner and has rightly directed for payment of ad valorem court fees by the next date of hearing. Hence, no indulgence is warranted.

10. Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is limited. The Hon'ble Supreme Court in the matter of Shalini Shyam Shetty vs Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has held that the High Court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts

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(VISHAL MISHRA)

JUDGE

subordinate to it, is a possible view. The High Court can exercise this power when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. The learned trial Court, in the considered opinion of this Court, has taken a plausible view which does not require any interference.

11. The petition sans merit and is accordingly dismissed. No order as to costs.

THK

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