HIGH COURT OF ORISSA: CUTTACK. W.P.(C) No. 20647 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------- M/s M.G.M.Minerals Ltd … Petitioner -Versus- Kabi Kishore Nayak … 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, petitioner has assailed legality of the order dated 12.11.2010 passed by the learned Civil Judge(Junior Division), Pipli in C.S.No.18 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 petitioner is defendant in the suit. 2. Plaintiff in the suit has prayed for following reliefs: “(a) It be declared that the sale deed No.2370 dated 8.12.2009 in favour of the defendant in respect of the suit property is forgery and the plaintiff is not aware of the said sale deed. (b) The defendant be restrained by decree of permanent injunction from interfering in the possession of the plaintiff over the suit property. (c) Cost of the suit be decreed. 3. The land in Khata No.305 of mouza Kausalyapur originally stood recorded in the consolidation ROR in the name of plaintiff’s grand-father Sapani Naik. Plaintiff has 1/3rd share over the lands in Khata No.305 in which suit plot no.580 has been recorded. 4. Plaintiff’s case is that Director of the defendant company is illegally claiming the suit land on the basis of registered sale deed dated 8.12.2009. It is alleged that though plaintiff is shown to be the executant, he has never signed on the sale deed which is a forged document. Consideration amount of Rs.6,66,000/- as shown in the sale deed was never paid by the defendant to the plaintiff. For the purpose of jurisdiction and court fees the suit has been valued at Rs.2,500/-, i.e., Rs.2,400/- for the relief of declaration and Rs.100/- for the relief of permanent injunction. 5. On appearance petitioner filed the petition, in response to which the order impugned in this writ petition was passed, asserting that on plaintiff’s own admission consideration amount of the suit land under disputed sale deed being Rs.6,66,000/-, there is no basis for valuation of the suit at Rs.2,500/-. Plaintiff has prayed for declaration that disputed sale deed is a forged document. Thus, plaintiff seeks to avoid the sale deed of which he is the executant. Plaintiff has also delivered possession of the suit land to the 2 defendant on 8.12.2009. Defendant has paid consideration amount to the plaintiff by two cheques of the H.D.F.C. Bank Limited without making any prayer for recovery of possession, and without making any prayer to set aside the sale deed plaintiff seeks to avoid the sale deed. It is averred that in view of the valuation of the suit land as mentioned in the sale deed, court of Civil Judge (Junior Division) has no jurisdiction to entertain the suit. 6. In passing the impugned order learned Civil Judge (Junior Division) held that in the matter of valuation the suit is guided as per the provision under Section 7 (iv)(c) of the Court Fees Act, 1870. Plaintiff has asserted that he was not a party to the sale transaction and has alleged that no amount was paid to him towards consideration. On the contrary, plaintiff has alleged fraud and forgery which has been committed behind his back. Therefore, there is no scope to render the finding with regard to actual valuation of the suit land at the initial stage and to reject the plaint on the ground of under valuation. 7. In assailing the impugned order it was submitted by the learned counsel for the petitioner that though plaintiff has made prayer to avoid the said deed in respect of the suit land executed in favour of the defendant, in fact plaintiff’s suit is for cancellation of sale deed in which valuation of the suit land has been stated to be Rs.6,66,000/-. Provision under section 7(iv)(c) of the Court fees Act,1870 does not permit arbitrary valuation of the suit without 3 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, petitioner 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., defendant 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. While supporting and defending the impugned order, learned counsel for the opposite party raised serious objection to the maintainability of the writ petition urging that the impugned order is amenable to revision under section 115 of the C.P.C. It was argued that had the defendant’s 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 4 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.2,500/-, revision should 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 defendant in getting a forged sale deed registered. Therefore, there is no nexus between consideration amount of the transaction in the sale deed and valuation of the suit. Petitioner 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. 9. In the present suit, plaintiff seeks to avoid a sale deed purported to have been executed by him. 10. It is also further observed that the suit is for declaration and consequential relief. Relief (a) prayed for in the suit is a prayer for declaring the sale deed to be not binding on the plaintiff. Therefore, in essence plaintiff seeks cancellation of registered sale deed. 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 5 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 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) , 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, 6 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 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.” 12. 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 7 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 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 8 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 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, defendant has 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 defendant , suit ought to have been valued keeping in view the consideration amount of the suit land under the registered sale deed. Valuation of the suit as stated by the plaintiff is not shown to have any nexus with value of suit land. In that view of the matter, defendant 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 required to be 9 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 10