Remanded

Sahil Mohd. Sakir Chauhan v. Arman Chauhan

Rajasthan HC19 Oct 2023CR/27/2023

Case brief

AI extract

What is this about?

High Court of Rajasthan Revised against the rejection of a Civil Suit application dismissing a plea for adequate court fee. The Court held that the trial court erred in applying Section 24(e) and set aside the order, remanding the matter to decide the suit's nature and fee liability after framing a preliminary issue.

What did the court decide?

The revision petition was disposed of; the impugned order was set aside and the matter remanded to the lower court to frame an issue on suit valuation and court fee.

Sahil Mohd. Sakir Chauhan Vs Arman Chauhan — Property and Title | Rajasthan HC (2023)

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[2023:RJ-JD:35962]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 27/2023

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Sahil Mohd. Sakir Chauhan S/o Md. Sakir Yunus Bhai, Aged About 31 Years, R/o Plot No. 24, Khasra No. 720 And 723, Patrakar Ii Colony, Village Choukha, Tehsil And Village Jodhpur.

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Rahil S. Chauhan S/o Sakir Bhai Md. Yunus Bhai, Aged About 34 Years, R/o Plot No. 24, Khasra No. 720 And 723, Patrakar Ii Colony, Village Choukha, Tehsil And Village Jodhpur.

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----Petitioners

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Versus

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1. Arman Chauhan S/o Late Amir Chauhan, R/o Merti, Silawato Ka Bas, Sojati Gate, Jodhpur, Minor Through Next Friend Ahmad Hussain Kheradi S/o Abdul Jabbar, R/o Hanumanji Ki Bhakri, Nayi Sadak Jodhpur.

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1. Smt. Nasrin W/o Late Amir Chauhan, R/o Merti, Silawato Kas Bas, Sojati Gate Jodhpur.

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----Respondents

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For Petitioner(s)	: Mr. Manas Ranchhor Khatri
For Respondent(s)	: Mr. SandeepSaruparia

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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19/10/2023

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The present revision petition has been filed against the order dated 16.01.2023 passed by the Additional Civil Judge No.1, Jodhpur Metropolitan in Civil Suit No.172/22 (NCV No.657/22) (wrongly mentioned in the order impugned as Civil Misc. Case No.172/22) whereby the application under Order 7 Rule 11 read with Section 151, CPC as filed by the defendant Nos.1 & 2 has been rejected.

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The facts of the case are that a suit was preferred by minor Arman Chauhan through his next friend for declaration of the sale deed to be void and for permanent injunction. In the said suit, an application under Order VII Rule 11, CPC was preferred by the defendant nos.1 and 2 on three grounds, firstly , in terms of Section 24(a) of the Rajasthan Court Fees and Suit Valuation Act, 1961 (hereinafter referred as ‘the Act of 1961’), the court fee is to be paid on basis of the market price of the disputed property which has not been paid in the present suit. Further, the suit has not even been valued on the current market price. Although, the sale deed in question itself specifies the valuation of the property to be Rs.23,10,000/- in the year 2019, the present market value has not been specified in the plaint. Secondly , even if the valuation as specified in the sale deed in question is taken into consideration, the present suit would not be within the pecuniary jurisdiction of this Court. Thirdly , the plaintiff being a minor is not entitled to appoint any power of attorney on his behalf and Ahmad Hussain is neither the natural guardian of the minor nor he has been appointed as a next friend to sue on behalf of the minor. On the above grounds, it was prayed that the plaint be rejected. 3. In response, the case of the defendant was that sufficient Court fee had been paid as the suit in question was for cancellation of the sale deed and as held by the Hon’ble Apex Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors., AIR 2010 SC 2807, where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed and the Court fee payable in the present matter would be

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liable to be computed in terms of Section 24 (e) of the Act of 1961 only.

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As the plaintiff had not prayed for relief of possession in the present matter, the Court below, relying upon the judgment passed in the case of Jagidh Sahu & Ors. vs. Sonu & Ors. in S.B. Civil Writ Petition No.8973/2014 (decided on 31.01.2017) held that the present case would fall under clause (e) of Section 24 of the Act and hence, the court fee payable would be on the valuation computed in the plaint qua the reliefs sought. Hence, the Court below held that the Court fee as paid was sufficient and consequently rejected the application as filed by the defendants.

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Learned counsel for the petitioners submitted that the Court below wrongly held the suit to be governed by Section 24 (e) of the Act of 1961. Admittedly, the present suit was for declaration and the plaintiff sought declaration as well as the consequential relief of permanent injunction. Therefore, it would be governed by clause (b) of Section 24 of the Act of 1961 and not clause (e) of Section 24 of the Act of 1961. Therefore, court fee was liable to be paid on the market price of the property in question.

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Per contra, learned counsel for the respondents submitted that the complete tenor of the suit was for relief of cancellation may be the relief qua the same is not happily worded. Counsel submitted that the suit was specifically for cancellation and not for declaration and further, the plaintiff was definitely an executant of the document in question, he being a minor and the document being executed by his mother being his natural guardian. He therefore submitted that even if it is assumed that the present

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matter would not be governed by Section 24 (e) of the Act of 1961, it would then also not be governed by Section 24 (b) of the Act of 1961 but would be governed by Section 38 of the Act of 1961.

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Counsel consented before this Court that if the Court directs to pay the Court fee in terms of Section 38 of the Act of 1961, the plaintiff is ready to pay so.

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However, the above submission has also been disputed by learned counsel for the petitioners on the premise that the matter would be governed by Section 24 (b) of the Act of 1961 only and not Section 38 of the Act of 1961.

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Heard learned counsel for the parties and perused the material available on record. 9. To reach to a just conclusion of the controversy in hand, evaluation of the pleadings as made by the plaintiff in response to the application as preferred by defendant Nos.1 & 2 would be essential wherein it was averred as under:-

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“;g fd izkFkZuk i= ds in la[;k 3 o 4 esa fy[ks rF;ksa ds lEcU/k esa bl izdkj ls dFku gS fd oknh us okn dk ewY;kadu nLrkost dks “kwU; ?kksf’kr djus ds fy, fd;k gSA ;g fufoZokn gS fd nkosa esa iz”uxr foØ; foys[k] ftlds “kwU; ?kksf’kr djus ds fy, nkok fd;k x;k gSa] esa oknh fu’iknd ugha g SA ,slh fLFkfr esa ekuuh; loksZPp U;k;ky; ds fuEufyf[kr fu.kZ; ds vuqlkj oknh dks cktkj ewY; ij nkok drbZ izLrqr djus dh vko”;drk ugha gSA”

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A bare perusal of the above pleadings shows that in the plaint, the plaintiff had built up a case for declaration of the sale deed to be void with specific averment that he is not the executant of the said document whereas total contrary to the said pleadings, it has been argued before this Court by learned counsel

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for the petitioners that although the relief as prayed for in the plaint is termed to be for declaration, the same in fact is for cancellation which fact can very well be concluded from the reading of the plaint as a whole. Further, even if it has been pleaded by the plaintiff that he is not the executant of the sale deed, the pleading, if contrary to the document, has to be overlooked and ignored by the Court.

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In view of the pleadings as made by the plaintiff and the contrary submissions made by learned counsel for the petitioners before this Court, this Court is of the clear opinion that the present matter would not, in any circumstance, be governed by Clause (e) of Section 24 of the Act of 1961. Therefore, the finding of the Court below to that extent is hereby set aside.

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Now, the issue would be if the matter is not governed by Section 24(e) of the Act of 1961 then it would be governed by Section 24 (b), (d) or Section 38 of the Act of 1961? 13. To decide the above controversy, the issues which would now require a specific finding are firstly , whether the present suit is for cancellation or for declaration? Secondly , whether the plaintiff can be termed to be the executant of the sale deed or not? Thirdly , whether any consequential relief has been prayed for in the present suit or not?

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In the opinion of this Court, specific findings on the above questions need to be recorded and the same would definitely be within the domain of the learned Court below. Therefore, in view of the above observations, while setting aside the order impugned dated 16.01.2023, the matter is remanded back to the Court below to decide the issue regarding the valuation of the suit and

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the payable court fee afresh after framing an issue qua the same and deciding the same as a preliminary issue.

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