HIGH COURT OF ORISSA: CUTTACK. W.P.(C) No. 20643 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------- Sk.Majnu and another … Petitioners. -Versus- Keshab Sahoo … Opposite Party For Petitioner : M/s. Bidyadhar Mishra, S.Satpathy, P.C.Mohapatra, M.T.Hossain. For Opp. Parties : M/s. Amit Pr. Bose and R.K.Mohanta. --------- PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 10.2.2011 : Date of judgment – 23.3.2011 B.K.Patel,J. In this writ application, petitioners have assailed legality of the order dated 12.11.2010 passed by the learned Civil Judge(Junior Division), Pipli in C.S.No.19 of 2010 rejecting the petition purported to have been filed under Order 7 Rule 11(a),(b) and (d) read with section 151 of the C.P.C. with a prayer to reject the plaint. Opposite party is the plaintiff and petitioners are defendants in the suit. 2. Plaintiff in the suit has prayed for following reliefs: “(a) Declare the alleged registered power of attorney No.72 is an illegal, nonest and void in respect of suit land and defendant no.1 had no authority to sale the suit land to the defendant no.2(two) in pursuance of the alleged power of attorney. (b) Pass a permanent junction against the defendants restraining them to take forcible possession of the suit land, to make any interference in the peaceful possession of the plaintiff over the suit land and to change the nature and character of the suit land. (c) Award cost of the suit against the defendants. (d) Pass such other relief as Hon’ble court deems just and proper in circumstances of fact and law.” 3. The suit land in plot No.576 under Khata no.53 belonging to the plaintiff is situated in mouza Kausalyapur. Plaintiff and some others are recorded owner of some land also under Khata no.225 in mouza Dhauli. Plaintiff has executed registered Power of Attorney dated 16.1.2010 in favour of defendant no. 1 for, inter alia, effecting sale of land. Defendant no.1 has executed registered sale deed in respect of the suit land in favour of defendant no. 2 on 21.1.2010. These facts are not in dispute. 4. Plaintiff’s case is that both the defendants colluded together to hatch a plan to grab the suit land from him. Defendant no.1 contacted the plaintiff for purchase of plaintiff’s share of land in mouza Dhauli for which he paid consideration amount and brought the plaintiff on 16.1.2010 to the Bhubaneswar Sub-Registrar office where plaintiff was required to execute, instead of sale deed, a Power of Attorney in respect of plaintiff’s share of land in mouza Dhauli. On being asked by the plaintiff, defendant no.1 told that he was not ready with adequate expenses for execution of sale-deed. It is alleged 2 that later suit land was fraudulently included in the schedule of property of the Power of Attorney. On the strength of such fraudulent entry in the Power of Attorney defendant no.1 executed registered sale deed dated 21.1.2010 in respect of the suit land for a consideration amount of Rs.11,70,000/-. It is further alleged in the plaint that though consideration amount for sale of land was Rs.6,63,300/- only, intentionally in the sale deed consideration amount of suit land was inflated. For the purpose of jurisdiction and court fee the suit has been valued at Rs.7000/- i.e. Rs.6,900/- for the relief of declaration and Rs.100/- for consequential relief of permanent injunction. 5. On appearance, petitioners filed the petition, in response to which the order impugned in this writ application was passed, asserting that on plaintiff’s own admission consideration amount of the suit land under the disputed sale deed being Rs.11,70,000/- , there is no basis for valuation of the suit at Rs.7000/-. It is averred that in view of the valuation of the suit land as mentioned in the sale deed executed by defendant no.1 on the strength of registered Power of Attorney admitted to have been executed by the plaintiff, court of Civil Judge(Junior Division) has no jurisdiction to entertain the suit. 6. In passing the impugned order learned Civil Judge (Junior Division) observed that, in view of nature of reliefs sought for by the plaintiff, the suit is guided under Section 7(iv)(c) of the Court Fees Act, 1870 for the purpose of valuation. It was observed that plaintiff 3 has assailed the sale transaction which according to him was not executed within his notice. Plaintiff himself was not a party to the sale transaction and has not admitted value of the suit property. On the contrary, as the plaintiff has alleged fraud and forgery behind his back, there is no scope to render a finding regarding actual valuation of the suit at the initial stage and reject the plaint on the ground of under valuation. It was also observed that the plaintiff having rightly or wrongly assailed the Power of Attorney, and not the sale transaction of the suit property, it would be unjust and improper to compel the plaintiff to make valuation of the land as per the recital in the sale deed. 7. In assailing the impugned order it was submitted by the learned counsel for the petitioners that plaintiff in the suit has admitted regarding execution of Power of Attorney in favour of defendantno.1 and also regarding execution of sale deed by defendant no.1 in favour of defendant no.2. Referring to the copy of the registered Power of Attorney filed before this Court it is further contended that defendant no.1 was authorized to sell suit property also. Relief no.(a) sought for in the suit is basically for cancellation of the sale deed on the ground that defendant no. 1 had no authority to deal with suit property. Therefore, there is absolutely no scope to hold that the plaintiff’s prayer in the suit relates to declaration with regard to only Power of Attorney. Moreover, in the plaint itself plaintiff has categorically admitted regarding receipt of consideration 4 amount. Provision under section 7(iv)(c) of the Court fees Act,1870 does not permit arbitrary valuation of the suit without any nexus with the suit transaction. Court of Civil Judge (Junior Division) has no jurisdiction to entertain the suit of which valuation exceeds Rs.4000/-. In the application, in response to which the impugned order was passed, petitioners raised contention regarding want of pecuniary jurisdiction of the learned court below to entertain the suit at the earliest possible opportunity in accordance with Section 21 (2) of the C.P.C.. Though application was described to be one under Order 7 Rule 11 of the C.P.C., defendants essentially objected to jurisdiction of the court. Learned court below has failed to consider the application upon reference to Order 7 Rule 10 of the C.P.C. which provides for return of the plaint when court in which the same is presented has no jurisdiction to entertain the suit. It was strenuously contended that it was incumbent upon learned Civil Judge (Junior Division) to return the plaint for presentation before the competent court. 8. Per contra, upon reference to copy of Power of Attorney filed by him in course of hearing, it was submitted by the learned counsel for the opposite party that before registration of the Power of Attorney plaintiff handed over a copy of the Power of Attorney in which there was no reference to the suit land. While supporting and defending the impugned order, learned counsel for the opposite party also raised serious objection to the maintainability of the writ petition urging that 5 the impugned order is amenable to revision under section 115 of the C.P.C. It was argued that had the defendants’ prayer under Order 7 Rule 11 of the C.P.C. been accepted, proceeding before the civil court would have come to an end. Therefore, in view of principle laid down by the Hon’ble Supreme Court in number of decisions including AIR 2003 S.C. 2434: Shiv Shakti Co-op. Housing Society,Nagpur –v- M/s Swaraj Developers and others and AIR 2003 S.C.3044: Surya Dev Rai –v- Ram Chander Rai and others, the impugned order is revisable and the writ application is misconceived. Valuation of the suit having been stated to be Rs.7000/-, revision could have been preferred before the learned District Judge. It was strenuously urged that crux of the allegation by the plaintiff in the suit is fraud perpetuated by the defendants by inserting the suit land in the Power of Attorney. Plaintiff has prayed to declare the Power of Attorney only to be illegal, nonest and void in respect of the suit land. Therefore, there is no nexus between consideration amount of the transaction in the sale deed and valuation of the suit. Petitioners having not made any prayer for return of the plaint under Order 7 Rule 10 C.P.C., there is no scope for them to urge in the writ application for the first time that the learned court below ought to have treated the application under Order 7 Rule 11 of the C.P.C. to be one under Order 7 Rule 10 of the C.P.C. 6 9. As has already been observed that, in the present suit, plaintiff admits to have executed registered Power of Attorney in favour of defendant no.1. It is also not disputed that defendant no.1 has executed registered sale deed in respect of the suit land. Therefore, plaintiff stands in the footing of executant of the registered sale deed also. 10. It is also further observed that the suit is for declaration and consequential relief. Relief (a) prayed for in the suit is a composite prayer for declaring registered Power of Attorney as illegal, nonest and void and, consequently, sale of the suit land by defendant no.2 to be without authority. Therefore, in essence plaintiff seeks cancellation of registered sale deed executed by defendant no.1 pursuant to the authority asserted to have been accorded by plaintiff by executing the disputed Power of Attorney. In fact, in course of hearing it was fairly conceded by learned counsel for the opposite party that plaintiff cannot file a categorical statement to the effect that he will not challenge the sale deed in the suit. 11. Valuation of the suit does not simply involve amount of revenue to be realized by the State as court fee but, at the threshold of the institution of the proceeding, it also plays very vital role for determination of the pecuniary jurisdiction of the Civil Court. Order 7, Rule 11 of the C.P.C. postulates rejection of the plaint in case suit is undervalued and in spite of direction of the Court plaintiff fails to rectify the defect by making good deficit court fee. Order 7 Rule 10 of 7 the C.P.C. mandates return of plaint for institution of the suit in the appropriate court having jurisdiction. Section 12 of the Court Fees Act casts duty and confers jurisdiction on a Court in which suit or appeal is filed to determine every question relating to valuation for the purpose of determining the amount of court fee chargeable. 12. As has been pointed out by this Court in Gopal Chandra Jena –v- Sri Sri Laxmi Narayan Bije Maura Alava and another:1989 (II) OLR 409, it is well settled that court fee payable on a suit is not merely dependant upon the way of drafting the plaint or the reliefs claimed. The substance of the plaint has to be looked into to determine the real reliefs claimed in the suit. In Gopal Chandra Jena vs. Sri Sri Laxmi Narayan Bije Maura Alava and another (supra) , in which facts were to some extent similar to the present case, it was held : “9. Since the opposite parties came before the Court with the pleadings that fraud was practised upon plaintiff No. 3 in execution of the power of attorney and the deed of gift is one which apparently has been executed and registered and such a deed of gift is to be declared void through the suit, learned counsel for the petitioner is correct in his submission that, in essence, the relief sought for by the opposite parties is one for cancellation of the deed and not for a mere declaration of fraud having been practised upon her would not have the effect of avoiding the deed unless the declaration is to the effect that due to such fraud, the deed is vitiated which, in effect, is the other way of saying that the deed is ineffective and, therefore, cancelled. In the context, the cancellation of the deed arises as a necessary consequence of the declaration and hence while the relief of declaration is the substantive relief claimed, cancellation thereof is the necessary consequential relief arising therefrom since without getting a declaration that the deed is vitiated by fraud, the cancellation cannot be sought for 8 independently, I would thus hold the suit to be one for relief of declaration with consequential relief and is to be governed by Sec.7(iv)(c) of the Act.” 13. Moreover, clause (iv-a) inserted to Section-7 of the Court Fees Act , 1870 by Orissa Amendment Act V of 1939 provides for computation of fees payable for cancellation of a decree for money or other property having a money value or other document securing money or other property having such value. It reads: “(iv-a) In a suit for cancellation of a decree for money or other property having a money value or other document securing money or other property having such value, according to the value of the subject-matter of the suit, and such value shall be deemed to be: if the whole decree or other document is sought to be cancelled, the amount or the value of the property for which the decree was passed or other document executed; if a part of the decree or other documents is sought to be cancelled, such part of the amount or value of the property. Explanation- In any case where a suit for the cancellation of a whole decree for money or other property having a money value, or other document securing money or other property having such value has to be instituted, but the substantial relief claimed is only in respect of a part of the amount or the value of the property for which the decree was passed or the other document was executed, the value of the subject-matter of the suit shall be deemed to be such part of the amount or value of the property in respect of which the relief is sough;” In Kandha Das vs. Indumati Devi : AIR 1970 Orissa 215, it has been pointed out by this Court that Section 7 (iv-a) shall be attracted when the plaintiff seeks to cancel the sale deed to which he is a party. 14. Also, even though provision under Section 7 (iv)(c) of the Court Fees Act provides for determination of valuation of the suit by the 9 plaintiff at his option but such valuation cannot be arbitrary and must have some relation with the real market value of the property at the time of institution of the suit. Referring to a number of authoritative judicial pronouncements, this Court has held in Kedarnath Biswal –vrs.- Budhanath Jena : 106 (2008) CLT 595: “6. On a close and composite reading of the provisions of Section (iv)(c) of the Court Fees Act along with the above noted case laws, one can comfortably infer that in a suit for declaration coupled with the consequential reliefs, the Plaintiff as per the provisions of Section 7 (iv)(c) of the Court Fees Act can value the suit at his option, but such valuation cannot be arbitrary and must have some relation with the real market value of the property at the time of institution of the suit.” 15. In Suhrid Singh –vrs.- Randhir Singh : AIR 2010 SC 2807, relied upon by the learned counsel for the opposite party, it has been held: “6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’- two brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently, ‘A’ wants to avoid the sale. ‘A’ has to sue for cancellation of the deed. On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court-fee is also different. If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court-fee on the consideration stated in the sale deed. If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not 10 bind him or his share, he has to merely pay a fixed court-fee of Rs.19.50 under Article 17 (iii) of Second Schedule of the Act. But if ‘B’, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court-fee as provided under Section 7(iv)(c) of the Act. Sectiion 7 (iv)(c) provides that in suits for a declaratory decree with consequential relief, the court- fee shall be computed according to the amount at which the relief sought is valued in the plaint.” 16. Though, in the present case, defendants have described his application to be as application under Order 7, Rule 11 of the C.P.C., recital therein contains categorical allegation of undervaluation of the suit. According to the defendants, suit ought to have been valued keeping in view the consideration amount of the suit land under the registered sale deed. In the plaint at paragraph-3 plaintiff categorically states to have received consideration amount from defendant no.1. Even if such admission is construed to be referring to consideration amount for plaintiff’s share of land in mouza Dhauli which he intended to sell, valuation of the suit as stated by the plaintiff is not shown to have any nexus with value of such land. In that view of the matter,defendants having raised the question of jurisdiction of the learned Civil Judge (Junior Division) to entertain the suit on the ground of lack of pecuniary jurisdiction, the learned court below was required to consider the application both in terms of Order 7, Rule 10 and Order 7, Rule 11 of the C.P.C. Acceptance of an application under Order 7, Rule 10 of the C.P.C. does not bring the proceeding in a suit to an end. In such case, only the plaint is 11 required to be returned for filing before the appropriate court. Therefore, contention with regard to maintainability of the writ petition on the ground that the impugned order is amenable to revision under Section 115 of the C.P.C. has no force. 17. Thus, in passing the impugned order the learned Civil Judge (Junior Division), Pipli has neither considered provisions under Order 7, Rule 10 of the C.P.C. and Section 7 (iv-a) of the Court Fees Act but also has failed to appreciate the issue upon reference to peculiar facts and circumstances of the case in the background of principles indicated above. Therefore, the impugned order is not sustainable in law. The matter is required to be remitted to learned Civil Judge (Junior Division), Pipli for reconsideration of the matter. In such circumstances, the writ petition is disposed of directing the learned Civil Judge (Junior Division), Pipli to reconsider and pass fresh order on the question of valuation of the suit for determining pecuniary jurisdiction in the light of observations made above after giving opportunities of being heard to the parties. ………………….. B.K. Patel, J. Orissa High Court, Cuttack, Dated 23rd March,,2011/Palai 12