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1978 Supreme(Raj) 2
High Court Of Rajasthan
Judgename : P.D. Kudal
Makhan Lal - Appellant
Versus
Urban Improvement Trust, Jaipur City - Respondent
Civil Revision No. 104 of 1977
Decided On : 01/13/1978
Appearance :
A.K. Bhandari, for the Appellant
S.K. Tiwari, R.K. Sharma, Ajai Purohit and S.S. Sharma, for the Respondents
In a suit for a declaration that a decree or instrument of sale is void ab initio and ineffective as against the plaintiff, the Court-fee is payable under Section 24 (a) of the Rajasthan Court Fees and Suits Valuation Act, 1961, and not under Section 38 of the Act.
Headnote:
COURT FEES - SUIT FOR CANCELLATION OF DECREE AND SALE-DEED - COURT FEES PAYABLE - RAJASTHAN COURT FEES AND SUITS VALUATION ACT, 1961 - SECTION 24 (A) AND SECTION 38.
Fact of the Case:
The plaintiff, Urban Improvement Trust, Jaipur City, filed a suit against the defendants for declaration and possession of a property valued at Rs. 10,000/-. The defendants contended that the valuation of the suit property was Rs. 50,000/- and that the Court-fee paid was insufficient. The plaintiff argued that the Court-fee was sufficient as the suit fell within the ambit of Section 38 of the Rajasthan Court Fees and Suits Valuation Act, 1961 (the Act).
Finding of the Court:
The court held that the suit was not for cancellation of a decree or instrument of sale, but for a declaration that the decree and sale-deed were void ab initio and ineffective as against the plaintiff. Therefore, the Court-fee was payable under Section 24 (a) of the Act, and not under Section 38.
Issues: 1. Whether the suit was for cancellation of a decree or instrument of sale, or for a declaration that the decree and sale-deed were void ab initio and ineffective as against the plaintiff? 2. Whether the Court-fee was payable under Section 24 (a) or Section 38 of the Act?
Ratio Decidendi: 1. The court distinguished between suits for cancellation of a decree or instrument of sale, and suits for a declaration that the decree or instrument of sale is void ab initio and ineffective as against the plaintiff. 2. The court held that in the instant case, the plaintiff was not a party to the decree or the sale-deed, and therefore, the suit was not for cancellation of the decree or instrument of sale, but for a declaration that the decree and sale-deed were void ab initio and ineffective as against the plaintiff. 3. Therefore, the Court-fee was payable under Section 24 (a) of the Act, which provides for Court-fees in suits for declaration, and not under Section 38 of the Act, which provides for Court-fees in suits for cancellation of decrees or instruments of sale.
Final Decision: The court allowed the revision petition and directed the trial court to fix the market value of the property and charge the Court-fees accordingly. If the market value was beyond the pecuniary jurisdiction of the trial court, the plaint was to be returned to the plaintiff for presentation in the proper Court.
Key Points: - The suit seeks a declaration that a decree and sale-deed are void ab initio and ineffective against the plaintiff, affecting court-fee under Section 24(a) rather than Section 38. (!) (!) (!) - Whether the suit is for cancellation of a decree or instrument of sale, or for a declaration that the decree and sale-deed are void ab initio and ineffective as against the plaintiff? (!) (!) - The court held that the suit falls under Section 24(a) (declaration) and not under Section 38 (cancellation), since the plaintiff was not a party to the decree or sale-deed. (!) (!) (!)
Question 1?
Question 2?
Question 3?
P.D. Kudal, J.-This revision petition under Section 115 of the Code of Civil Procedure is directed against the order of the learned Additional Civil Judge, Jaipur City dated 8th Dec. 1976.
2. The brief facts, which are relevant for the disposal of this revision petition, are that the Urban Improvement Trust, Jaipur City filed a suit against Makhan Lal, Rajmal and Kailash Narain for declaration and possession. The suit was valued at Rs. 10,000/-. Defendants Nos. 1 and 2 filed their written statements on 25th March, 1976, while the defendant No. 3 filed his written statement on 3rd April, 1976, Defendants Nos. 1 and 2 raised issue that the valuation of the suit property is Rs. 50,000/-, while the plaintiff has valued the suit at Rs. 10,000/-. It was, therefore, contended that the Court-fee paid is insufficient and that if the suit is valued at Rs. 50,000/-, then the subject-matter of the suit is liable to be tried by the District Judge, and the Additional Civil Judge will have no pecuniary jurisdiction to try the suit.
3. On behalf of the defendant No. 3, it was contended that he is an employee of the Urban Improvement Trust, and that the land in question was allotted to him by the Urban Improvement Trust for a sum of Rs. 999/ -. It was further contended that thereafter the defendant No. 3 secured a loan of Rs. 7,720/-from the Urban Improvement Trust for construction purposes. As he was in need of money he executed an agreement for sale in favour of the defendants Nos. 1 and 2, and received Rs. 5,000/-towards the sale consideration. Later on, a suit bearing No. 72/72 was filed in the Court of the learned Civil Judge, Jaipur City, Jaipur by the defendants Nos. 1 and 2 against the defendant No. 3, and a decree was obtained in favour of the plaintiffs on 4th Dec. 1972. This suit was for specific performance of the contract. In execution of this decree a registered sale-deed in favour of the defendants Nos. 1 and 2 was executed on 6th May. 1975.
4. The contention of the plaintiff la that the land was allotted to the defendant No. 3 on concessional rates as he was an employee of the Urban Improvement Trust. It is further contended that the defendant No. 3, according to the terms of allotment, could not alienate the plot of land before the expiry often years from the date of allotment. The plaintiff has, therefore, instituted the present suit with the prayer that :he decree
obtained in favour of the defendants Nos. 1 and 2 and against the defendant No. 3, on Dec., 1972, in Civil Suit No. 72/1972, from the Court of the learned Civil Judge, Jaipur City, Jaipur, and the registered sale-deed executed in favour of the defendants Nos. 1 and 2 on 6th May, 1975, be declared as ineffective and inoperative and be accordingly cancelled. The other relief which the plaintiff has sought is that the possession of the property in dispute be restored to the plaintiff , and he be declared the owner of the property in dispute,
5. On the pleadings of the parties, issues were struck on 16th Sept., 1976. Issue No. 9 reads as under:-‘
Hindi Matter
The learned Addl. Civil Judge, Jaipur City decided the issue in favour of the plaintiffs and held that the Court-fee paid is sufficient and that the Court has jurisdiction to entertain and adjudicate upon the subject-matter of the suit. Defendants Nos. 1 and 2 feeling aggrieved against the order of the learned Addl, Civil Judge have filed the present revision petition.
6. It has been contended on behalf of the petitioners that the learned lower Court has erred in law in deciding the issue No. in favour of the plaintiff It has been contended that even in para No. 17 of the plaint, it has been stated that the Court-fee is paid as provided under Section 24 (a) of the Rajasthan Court-Fees and Suits Valuation Act, 1961 (hereinafter to be referred to as the Act). It was further contended that as the suit relates to the cancellation of the decree and the registered instrument of sale and as the possession of the
