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IN THE HIGH COURT OF ALLAHABAD
SARAL SRIVASTAVA, J.
Smt. Urmila Devi – Appellant
Versus
Rajendra Pal Tayal and Others – Respondents
First Appeal From Order No. 366 of 2021
Decided On : 15-11-2022
Court Fees Act, 1887 – Section 7 – Old Specific Relief Act, 1877 – Section 55 – New Specific Relief Act, 1963 – Section 39, 41 – Indian Easement Act, 1882 – Section 59 – Present appeal is directed against instituted by plaintiff appellant has been decided against plaintiff appellant and trial court has directed plaintiff appellant to pay court fees ad-valorem – Held, Court was considering a case where suit property was auctioned bid of petitioner was highest consequently given suit property terms of agreement – Petitioner paid certain installments stopped payment of installments recovery was effected against him by respondent state which was challenged by petitioner in suit – Trial court held that petitioner was liable to pay court fee on full amount which is sought to be recovered from him – Finding of trial court was affirmed by appellate court as well as by this Court in writ petition – Appeal is allowed.
JUDGMENT :
SARAL SRIVASTAVA, J.
1. Heard learned counsel for the appellant and learned counsel for the respondents.
2. The present appeal is directed against the order dated 25.04.2014 passed by the Additional Civil Judge (S.D.) Court No. 2, Bulandshahar whereby the issue no. 7 in Original Suit No. 1285 of 2008 instituted by the plaintiff/appellant has been decided against the plaintiff/appellant and trial court has directed the plaintiff/appellant to pay court fees ad-valorem.
3. The plaintiff/appellant has instituted Original Suit No. 1285 of 2008 contending inter-alia that the suit property has been purchased by the plaintiff/appellant by registered sale deed dated 24.08.1966 on which a pottery business in the name of M/s Tayal Pottery was run by the plaintiff/appellant and defendant/respondent no. 1 Rajendra Pal Tayal. Subsequently, Tayal Pottery was dissolved with the consent of the plaintiff/appellant and defendant/respondent Rajendra Pal Tayal (since deceased). It is further pleaded in the plaint that a loan was taken from the U.P. Financial Corporation, Kanpur (hereinafter referred to as U.P.F.C.) by M/s Tayal Pottery which was repaid on 13.06.2007 and after discharge of loan, a registered re-conveyance deed was prepared in favour of plaintiff/appellant and defendants/respondents.
4. Further case of the plaintiff/appellant is that after the loan of U.P.F.C. was discharged, the defendant being the real brother of the husband of the plaintiff/appellant carried on the business of pottery. It is submitted that the possession of defendants/respondents over the suit property was that of a licencee. The licence has been terminated by the plaintiff/appellant by registered notice dated 16.09.2008, and defendants/respondents were asked to hand over the possession of the suit property. The defendants/respondents did not give possession of the suit property which gave the cause of action to the plaintiff/appellant to institute the present suit.
5. In the aforesaid backdrop, the following relief has been prayed for by the plaintiff/appellant:
¼c½ ;g fd okfnuh dks Áfroknhx.k ls nkSjkus okn fuEu of.kZr ikVjh ds bLrseky dh ,ot esa 8]000@& :i;s ekfld Áfroknhx.k ls mi;ksx /ku fnyk;k tkos ftl ij ;fn vko';d gqvk rks U;k; 'kqYd fu"iknu ds le; fn;k tk;sxkA
¼l½ ;g fd okfnuh dks Áfroknhx.k ls okn O;; fnyk;k tkosA
¼n½ ;g fd dksbZ vU; vuqrks"k ftldk okfnuh ikus dh vf/kdkjh gks fnyk;k tkosA**
6. The trial court framed the issue with regard to the sufficiency of the court fee. According to the defendants/respondents though, the suit has been instituted for mandatory injunction, but essentially plaintiff/appellant is claiming relief of possession. Hence, the plaintiff/appellant is liable to pay the court fee ad-valorem as provided under Section 7(v)(II) of the Court Fees Act.
7. The trial court after considering the facts in detail found substance in the contention of defendants/respondents and held that as the plaintiff/appellant is essentially claiming relief of recovery of possession, therefore, she is liable to pay court fee ad-valorem as per Section 7(v)(II) of the Court Fees Act, 1887.
8. Challenging the aforesaid order, learned counsel for the plaintiff/appellant has contended that the trial court has failed to appreciate the correct law on the issue inasmuch as the suit has been instituted by the plaintiff/appellant for a decree of mandatory injunction on the ground that the suit property is in the name of plaintiff/appellant and the nature of possession of the defendants/respondents over the suit property is of a licencee which implies that the possession of defendants/respondents over the suit property was only permissive, therefore, the suit for mandatory injunction is maintainable, and the plaintiff/app
The court fee should be determined based on the relief sought in the plaint and not on the basis of the plaintiff's statement after the institution of the suit.
Valuation of suit – It is nature of relief claimed in plaint which is decisive of question of suit valuation – Market value does not become decisive of suit valuation merely because an immovable prop....
The court clarified that a non-executant must pay ad valorem court fees for declaring a sale deed void, capped at Rs.1,50,000 under the Madhya Pradesh Amendment.
Suits for mandatory injunctions can succeed if ownership is established, countering the Trial Court's denial based on misinterpretation of property law.
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