Reserved
Court No. - 9
Case :- CIVIL REVISION No. - 175 of 2009 Revisionist :- Jagdish Prasad Opposite Party :- Mohan Lal & Another Counsel for Revisionist :- A.K.Goyal,Chowdhary Subhash Kumar
Hon'ble Anjani Kumar Mishra,J.
Heard Shri Chowdhary Subhash Kumar, counsel for the revisionist.
The instant revision is directed against the order dated 16.01.2009 passed by the Civil Judge (Sr. Division), Orai at Jalaun in original suit no. 91 of 2003 filed by the revisionist.
The plaintiff-revisionist filed the suit aforesaid seeking a declaration that a Will dated 24/30.12.96 executed by Sita Ram, the father of the plaintiff-revisionist and the defendant-opposite party no. 1. be declared null and void, as this Will pertained to ancestral property.
In this suit, issue no. 3 was framed as to whether the suit was under valued.
The Court after hearing the parties, on 03.05.2005, found that the same property, which was subject matter of the instant suit was also subject matter of an earlier suit for partition filed by the revisionist being suit no. 260 of 1996, wherein the property had been valued at Rs. 16,10,000/-. It was therefore, held that valuation of the suit was Rs. Rs. 16,10,000/- and the plaintiff was directed to amend his plaint and to pay adequate court fees.
The plaintiff thereafter filed an amendment application, which was duly allowed. Thereafter, an additional written statement was filed on the basis whereof issue no. 11 was framed on 21.04.2008 as to whether the court fee paid by the plaintiff was insufficient.
On 12.08.2008, the Court passed an order observing that the plaintiff should pay 1/5th of the total valuation of the suit as court fee. A munsarim report was also called for in this regard.
The plaintiff-revisionist thereafter filed an application for recall of the order dated 21.08.2008 on the ground that the issue of valuation had been decided by the order dated 03.05.2005, which order operated as resjudicata and, therefore, the order dated 12.08.2008 was liable to be recalled.
By the impugned order passed on 16.01.2009, the Court below has rejected the recall application, but has modified its earlier order dated 12.08.2008 holding that ad valorem court fee as provided by Section 7 (iv-A) of the Court Fees Act was liable to be paid by the plaintiff. It is this order, which has been impugned in this revision.
The contention of counsel for the revisionist is that the Court below had no jurisdiction to modify its order dated 12.08.2008, which required the plaintiff to pay court fees at 1/5th of the valuation of the suit, which was Rs. 16,10,000/- only, especially when the opposite party-defendant had not filed any application for recall/review of the same. The order impugned therefore, is without jurisdiction and liable to be set aside.
It is also sought to be contended that while deciding issue no. 3 vide order dated 03.05.2005, the munsarim report had been accepted. Therefore also the plaintiff could not be directed to pay ad valorem court fees.
It is also contended that the suit was one for declaration only and, therefore, the Court fee as provided by Article 17 (iii-d) of the Schedule II of the Act had rightly been paid.
I have considered the submissions of counsel for the revisionist and perused the record.
It is not in dispute that the suit is for adjudging a Will to be void. This Will has admittedly been executed by the father of the plaintiff. The court fee payable in the suit is therefore to be computed in accordance with Section 7 (iv-A) of the Court Fees Act, 1870 and not in accordance with entry 17 (iii)-D of Schedule II. This is so because the said entry read as follows:-
"(iii) to obtain a declaratory decree where no consequential relief to be prayed in any suit, not otherwise provided by this Act."
This provision therefore, does not apply in a case where a declaratory decree is sought and where a provision exists in the Act for computation of the court fee payable, thereon.
Sub-section (iv-A) of Section 7 of the Court Fees Act has been incorporated by U.P. Act No. 19 of 1938 and reads as follows:-
"[For cancellation or adjudging void instruments and decrees.-(iv-A) In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value:
(1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter; and
(2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be-
if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a party of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates."
The instrument sought to be adjudged void in the suit is a will which secures property having a market value. Besides, this document having been executed by the predecessor in title of the plaintiff. Hence ad valorem court fees is liable to be paid according to the value of the subject matter as provided by sub clause (1), extracted above. Therefore, the impugned order in so far as it directs payment of ad valorem court fees is a perfectly correct order, which suffers from no illegality.
The only other aspect which requires consideration is the contention of counsel for the revisionist that the Court below had in its order dated 12.08.2008, observed that court fee payable would be 1/5th of the valuation of the suit.
In my considered opinion, observation in the order dated 12.08.2008 was contrary to law and in case the same has been corrected by the Court below while considering a recall application filed by the plaintiff himself. I do not find any illegality in such order.
The direction/observation contained in the order dated 12.08.2008 was clearly contrary to law and an error apparent on the face of the record. In case Court has corrected this error, the same cannot be said to be an illegality. Besides, section 151 of the Civil Procedure Code confers an inherent power upon a Court to make such orders as may be necessary in the ends of justice. The ends of justice clearly demanded that an incorrect order, passed contrary to law, be corrected by the Court, itself.
Even otherwise, this Court upon a perusal of the order dated 12.08.2008, which has been annexed with an affidavit sworn on 3rd March, 2011, in its operative portion merely observes that the issue no. 11 is decided in favour of the defendant. It, thereafter, goes of to fix the next date for obtaining a munsarim report and for payment of court fees. The operative portion of this order, no where directed that the plaintiff had to pay the court fees at 1/5th of the valuation of this suit. Therefore, also the impugned order dated 16.01.2009, in my considered opinion, is not a recall or modification of the order dated 12.08.2008, but is largely clarificatory in nature.
In view of the above discussion, this revision is found to be without substance and is hereby dismissed.
Order Date :- 31.8.2018 Mayank Digitally signed by ANJANI KUMAR MISHRA Date: 2018.08.31 13:15:06 IST Reason: Document Owner Location: High Court of Judicature at Allahabad