Heard Shri Ratnesh Chandra, learned counsel for the revisionist. None has appeared on behalf of the opposite parties.
The office report dated 19.01.2017 indicates that the service on the opposite parties is sufficient. Since, none has appeared, therefore, this Court has no option but to decide the matter in absence of the opposite parties.
This revision has been preferred against the impugned order dated 05.06.2006 whereby the Additional Civil Judge (Senior Division), Court No.1, Lucknow in R.S. No.371 of 1998 has rejected the application of the revisionist whereby he had raised the issue regarding valuation of the suit as well as payment of Court fee.
It has been submitted by the learned counsel that admittedly the plaintiff-opposite parties had instituted a suit for cancellation of a decree. Categorically in Para-14, they had mentioned the valuation of the suit as Rs.15,00,000/- and the Court Fee paid @ Rs.700/-. There is no way by virtue of which the Court fee of Rs.700/- could not have been in a suit for cancellation of a decree which has been valued at Rs.15,00,000/-. He has submitted that the valuation of the suit and the Court fee payble are two separate. Thought he disputes the valuation inasmuch as it is stated that the property which is affected by the decree is worth crores, however for the time being even assuming the valuation as given by the plaintiff-opposite parties in his plaint is taken to be correct, even then a sum of Rs.700/- as Court fee was not sufficient inasmuch as the same would be covered by Section 7(iv-A) of the Court Fee Act, 1870. It has further been submitted that the trial court has misdirected itself and has rejected the application on the ground that this issue raised by the defendant can be made the subject matter of a issue and, therefore, it can be decided later.
Shri Chandra has submitted that the provisions of Order VII Rule 11 CPC gives him leverage to raise this issue and once such a issue has been raised, it is not open for the trial court to defer the same inasmuch as it is not open to two views. The defendant was raising this aspect of the matter merely on the basis of the plaint averments alone and, therefore, the trial court has committed an error in rejecting his application.
The Court has considered the submissions of the learned counsel for the revisionist and also perused the record.
A copy of the plaint has been brought on record as Annexure No.2 with the paper-book. From a perusal of the same, it clearly indicates that the plaintiff had valued his suit as Rs.15,00,000/- and paid court fee as Rs.700/-. The suit is also titled as suit for cancellation of a decree dated 28.08.1998 and thereafter in Paragraph-14 it has been mentioned that the valuation of the suit is Rs.15,00,000/- and it has been stated that since the suit is for cancellation, therefore, the proper court fee of Rs.700/- is being paid. The aforesaid does not indicate as to how this figure of Rs.700/- has been arrived at.
The provision regarding the payment of court fee attracted in a case of cancellation of a decree is contained in Section 7(iv-A) of the Court Fees Act, 1840, which is reproduced as under for ready reference:-
"For cancellation or adjudging void instructions 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 party relates.
Explanation.-The value of the property for the purposes of this sub-section, shall be the market-value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-sections (v), (v-A) or (v-B), as the case may be."
The provisions clearly indicates that the court fee payable in such a suit would be ad valoram to the valuation given in the suit. At this stage, the decision of the Hon'ble Apex Court in the case of Shailendra Bhardwaj and others vs. Chandra Pal and another, reported in (2013) 1 SCC 579, wherein the provisions of Section 7(iv-A) of the Court Fees Act as amended in the State of U.P., came to be considered by the Hon'ble Apex Court and considering the same it has held as under:-
"8. On comparing the abovementioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where the plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.
9. The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the court fees have to be computed according to the value of the subject-matter and the trial court as well as the High Court have correctly held so.
10. We are of the view that the decision of this Court in Suhrid Singh [(2010) 12 SCC 112 : (2010) 4 SCC (Civ) 585] is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a case in which this Court was dealing with Sections 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case.
11. The plaintiff, in the instant case, valued the suit at Rs 30 lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of court fee, the plaintiff paid a fixed court fee of Rs 200 under Article 17(iii) of Schedule II of the Court Fees Act. The plaintiff had not noticed the fact that the abovementioned article stood amended by the State, by adding the words "not otherwise provided for by this Act". Since Section 7(iv-A) of the U.P. Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable."
Considering and noticing the dictum as extracted above, it would indicate that apparently the plaintiff-opposite parties had not indicated the source and the manner in which it has arrived at the valuation and has paid the court fee in respect of a suit for cancellation.
Admittedly the plaintiff has given the valuation of Rs.15,00,000/-. This aspect can be noticed from another angle inasmuch as where the defendant disputes the valuation as well as the payment of court fee which is ad valoram thereon, then no doubt true, the same would in certain circumstances would require the parties to lead evidence and in such a case, the Court would have been justified in directing that the same could be made a subject matter of an issue as framed in terms of Order XIV CPC and then decide the same.
However, the point raised by the learned counsel for the revisionist in this case is little different inasmuch as his submission is that without entering into the actual valuation if at all the valuation of the plaint is taken to be correct even then the Court Fee payable is extremely insufficient and in view thereof, the Court is not justified in either proceeding with the suit nor in rejecting the application of the revisionist.
The submission of the learned counsel for the revisionist has substance. This Court is of the considered opinion that the trial court has committed an error and failed to notice this aspect of the matter inasmuch as in light of the decision rendered by the Hon'ble Apex Court as noticed hereinabove in the case of Shailendra Bhardwaj (supra) it is not open to any two views that in a suit for cancellation of an instrument would also include the decree of the Court in such suits the court fee payable would be ad valoram to the valuation which has been indicated in the plaint.
In the present case the munsarim has not placed the correct respond nor the court below has considered the question before it in the correct perspective. Apparently in a suit for cancellation where the valuation is Rs.15 lacs, the court fee of Rs.700/- is grossly inadequate and is also against the provision of 7(iv-A) of Court Fees Act, 1870 as applicable to the State of U.P.
In view of the above, this Court is satisfied that the order impugned passed by the Additional Civil Judge (Senior Division), Court No.1, Lucknow dated 05.09.2006 has been passed in ignorance of the relevant legal provisions and is on exercise in excess of jurisdiction vested in law. Consequently, the order impugned cannot be sustained and is accordingly set aside. The revision stands allowed. The matter is remitted to the Court of Additional Civil Judge (Senior Division), Court No.1, Lucknow, who shall decide the application once again in light of the provision Section 7(iv)(a) of the Court Fees Act, 1840 and in light of the decision rendered by the Hon'ble Apex Court in the case of Shailendra Bhardwaj (supra).
Since, the suit is of the year 1998, accordingly, the revisionist shall appear before the court below on 19.10.2019 on which date the Court shall reconsider the application after hearing the parties and shall make all endeavour to decide the application within one month from the date, a certified copy of this order is placed before it and thereafter shall also proceed with the suit with expedition considering that the matter is of the year 1998.
With the aforesaid, the revision stands allowed.
No order as to costs.
Order Date :- 30.9.2019 Rakesh/-