Court fee for Civil Suit whether to be paid?
Introduction:
In the present case of Smt. Gangesh Kumari Kak vs The State of Madhya Pradesh, we will discuss whether the ad valorem court fee will be paid or not by the non-executant of a sale deed if he is not bound by the deed. Court held that if 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 the 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 Court Fees Act, 1870.
Also Read- court fees in cancellation of sale deed – Indian Kanoon
Facts:
The petitioner has filed the petition against the order dated 19.01.2015 passed by the IXth Additional District Judge, Indore in Civil Suit No.1- A/2013. The facts of the case reveal that the plaintiff has filed a civil suit for declaration and for grant of permanent injunction seeking a declaration that the sale deed bearing No.1-A/1150 dated 13.10.2011 has been registered in violation of Section 19 and 20 of the Registration Act and Section 17 of the Stamp Duty Act, hence, void ab initio and a nullity. The plaintiff is not a party to the sale deed, and therefore, presented a plaint on a fixed court fee of
Rs.2,000/- seeking a relief of declaration as per Article 17(III) of the Schedule of the Court Fees Act, 1870. The defendants have objected in respect of maintainability of suit and a prayer was made for issuance of a direction to the plaintiff to pay the ad valorem court fee. The trial Court has decided the issue and by an order dated 19.01.2015, the trial Court has directed the plaintiff to pay ad valorem court fee.
Respondents have argued before this Court that the plaintiff has rightly been directed to pay ad valorem court fee, as he has not said that the sale deed is not binding upon him. It has also been stated that virtually it is a case of cancellation of sale deed under Section 31 of Specific Relief Act, and therefore, ad valorem court fee is required to be paid.
Also Read- Cancellation of sale deed – Kaanoon
Cases Cited:
- In the case of Ajay Pratap Singh and Others Vs. Kuldeep Singh and Others, it was held that when the plaintiff is not the party to such agreement neither he is a representative to a person who is a party to such decree and the plaintiff owns the property then he can sue for declaration simpliciter. If the plaintiff is not bound by the agreement and if he is not required to have it set aside, he can claim to pay Court fees under any of the sub-clauses of Article 17, Schedule II of the Court-Fees Act. When the plaintiff is not a party to the sale deed and possession of disputed land is with the plaintiff, no ad valorem Court fee is required to be paid.
- In the case of Suhrid Singh Vs. Randhir Singh, Supreme Court held that if 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 the 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.
- In the case of the Government of Orissa Vs. Ashok Transport Agency, Apex Court explained the distinction between the meaning void and voidable acts. In that case, it was held that one type of void act is ab initio void and for avoiding the same, no declaration is necessary. The other type of void act is like a transaction against a minor, if the minor decides to avoid the same by taking recourse to the court proceeding, the transaction becomes void from the very beginning. Another type of void act maybe not a nullity but for avoiding the same a declaration has to be fraudulent. The voidable act is good unless a suit is filed for declaration that a document is fraudulent or forged.
- In the case of Prem Singh vs. Birbal and Ranganayakamma vs. K. S. Prakash, the Apex Court held that voidable transactions are required to be avoided while void transactions are not required to be avoided. In the case of Sneh Gupta vs. Devi Samp, it was held that the compromise, accepted in the absence of all the parties, may be void or voidable but it is required to be set aside by filing a suit within the period of limitation under Limitation Act.
- In the case of Manzoor Ahmed vs. Jaggi Bair and others, the plaintiff filed a suit for declaration of title and confirmation of possession. She had not claimed the relief for possession, so it was held that the ad valorem court fee was not required to be paid. In case the document is voidable at the instance of the executant, an ad valorem court fee is required to be paid but not in the case of the void document.
- In the case of Sardool Singh vs Randhir Singh and Others, it was held that Entry 17(iii) of the Second Schedule requires payment of a court fee of Rs.19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by section 7(iv) of the Court Fees Act, 1870.
Also Read- court fee for declaration doctypes: punjab – Indian Kanoon
Decision:
In view of the aforesaid statements, the court held that when the plaintiff makes an allegation that the deed is void and hence not binding upon him, and if a declaration simplicitor is prayed then he is not required to pay ad valorem court fee and a fixed court- fee under Article 17, Schedule-II of the Court Fees Act will be payable. The court allowed the appeal, setting aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under Section 7(iv)(c) read with Section 7(v) of the Act. It was also held that the payment of the ad valorem court fee is not required.
Also Read- Court-fees depends on relief claimed not on value of property
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