The main legal point established in the judgment is the importance of properly valuing a suit and paying the appropriate court fees, as well as the distinction between seeking cancellation of a deed and seeking a declaration that the deed is invalid or non-binding.

JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 3.12.2014 passed by the learned First Additional Civil Judge (Senior Division), Cuttack in C.S.No.471 of 2012, whereby and where under, the learned trial court rejected the application of defendant no.2-petitoner under Order 7 Rule 11 (b) & (c) read with Section 151 CPC for a direction to the plaintiff to put proper valuation of the suit and pay Court fee, failing which, to reject the plaint.

2. Opposite party no.1 as plaintiff instituted the suit for declaration that RSD No.2017 dated 7.7.2012 executed by defendant no.1 in favour of defendant no.2 is illegal, void, not binding on him and permanent injunction. Petitioner is the defendant no.2 in the suit. Pursuant to issuance of summons, defendant no.2 entered appearance and filed an application under Order 7 Rule 11(b)(c) read with Section 151 CPC for a direction to the plaintiff to put proper valuation of the suit and pay the court fee within a specified time, failing which, to reject the plaint. The plaintiff filed objection stating that the power of attorney executed by him in favour of defendant no.1 has been cancelled. He has not delivered the suit land to defendant no.1. Thus, defendant no.1 cannot alienate the property in question to defendant no.2. The suit has been properly valued. The learned trial court came to hold that the plaintiff is not a party to the registered sale deed. The suit is not for cancellation of an instrument, but for declaration of sale deed as illegal and void. The plaintiff is not required to value the suit as per the valuation of the sale deed. Held so, the learned trial court rejected same.

3. Mr.Rath, learned counsel for the petitioner submitted that the plaintiff has prayed inter- alia for declaration that RSD No.2017 dated 7.7.2012 executed by defendant no.1 in favour of defendant no.2 is illegal, invalid and void and not binding on him. The same is in effect of cancellation of registered sale deed. Thus, the plaintiff should have valued the suit on market price i.e. the consideration amount mentioned in the registered sale deed. Unless the plaintiff’s title is declared, the relief of permanent injunction cannot be granted. Valuation of the suit is imaginary. The learned trial court is not justified in rejecting the application. He relied upon a decision of this Court in the case of Gopal Chandra Jena Vrs. Sri Sri Laxmi Narayan Bije Maura Alava and another, 1989 (II) OLR 409.

4. Per contra, Mr.Mishra, learned counsel for the opposite party no.1 submitted that the suit has been properly valued. He relied upon a decision of the Apex Court in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh & others, AIR 2010 SC 2807.

5. In Suhrid Singh (supra), the apex Court held :

“6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the 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 non-est/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, h