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2017 Supreme(MP) 518
IN THE HIGH COURT OF MADHYA PRADESH
Subodh Abhyankar, J.
Pramod Kumar Zopey v. Smt. Smita Zopey
Writ Petition No.13470 of 2016 (Jabalpur); against order dated 8.7.2016 passed by III Additional Judge Class Ist to Court of First Civil Judge Class I, Bhopal in RCS No.946 A/2015. Decided on 17.8.2017
Rohit Jain for petitioner; D. R. Vishwakarma for respondent No.1;
Adil Usmani for respondents No.3 to 6
Headnote:Civil P.C., 1908 -- O.7 R.11 and S.149 -- sale deed challenged by filing civil suit by petitioner -- application under filed by respondent No.1 on ground of deficient court-fee -- allowed by trial Court -- challenged before this Court -- petitioner executed power of attorney on 7.3.2014 -- sale deed excuted on 5.3.2015 -- validity of power fo attorney is from 6.3.12014 to 31.3.2014 -- petitioner had no right to sell property of respondent No.1 -- Prima facie petitioner cannot be said to be an executant of sale deed dated 5.3.2015 -- thus, saddling him with ad valorem court -fee would be unjustifiable at this stage -- impugned order set aside -- respondents can raise all objections relating to court-fee in written statements -- powers under section 149 of CPC can be invoked if occasion arise -- petition allowed.
Held : In the aforesaid factual background, this Court is of the considered opinion that prima facie the petitioner cannot be said to be an executant of the sale deed dated 5.3.2015 and thus, saddling him with the ad valoram court-fee would be unjustifiable at this stage. In the circumstances, the impugned order dated 8.7.2016 is liable to be quashed. Since the written statement is still to be filed by the respondents, they are at liberty to raise all the objections relating to the court-fees in their written statement which shall be decided by the Court in accordance with law and evidence on record without being influenced by the observations made by this Court. Needless to say that powers under section 149 of CPC which refers to power of the Court to make up deficiency of court-fees can be invoked by the civil Court if the occasion so arises. 2010(4) MPLJ 431 relied on. 2010(3) MPLJ 625, 2016(2) MPRD 449; 2017(2) MPLJ 600, 2011(II) MPWN 118 and Civil Appeals No. 2811 -- 2813/2010 decided on 29.3.2010. distinguished.
flfoy izfdz;k lafgrk] 1908 & vkΠ7] fuΠ11 rFkk /kkjk 149 & ;kph }kjk flfoy okn izLrqr dj fodz; foys[k vk{ksfir & mica/k ds v/khu izR;FkhZ dzΠ1 }kjk U;k;ky; Qhl dh deh ds vk/kkj ij vkosnu izLrqr & fopkj.k U;k;ky; }kjk Lohdkj & bl U;k;ky; ds le{k vk{ksfir & ;kph us 7-3-2014 dks eq[rkjukek dk fu"iknu fd;k & fodz; foys[k 5-3-2015 dks fu"ikfnr & eq[rkjukek dh fof/kekU;rk 6-3-2014 ls 31-3-2014 rd & ;kph izR;FkhZ dzΠ1 dh laifRr dks fodz; djus dk vf/kdkj ugha j[krk Fkk & izFken`"V~;k ;kph dks fodz; foys[k fnukad 5-3-2015 dk fu"iknudRrkZ ugha dgk tk ldrk & bl izdkj ml ij ewY;kuqlkj U;k;ky; Qhl dk Hkkj Mkyuk bl Lrj ij vU;k;kuqer gksxk & vk{ksfir vkns'k vikLr & izR;FkhZx.k U;k;ky; Qhl ls lacaf/kr lHkh vk{ksi fyf[kr dFkuksa esa mBk ldrs gSa & flfoy izfdz;k lafgrk dh /kkjk 149 ds v/khu 'kfDr;ksa dk vkJ; fy;k tk ldrk gS ;fn volj mRiUu gksrk gS & ;kph LohdkjA
vfHkfu/kkZfjr % iwoZ dfFkr rF;kRed i`"BHkwfe esa bl U;k;ky; dh ;g lqfopkfjr jk; gS fd izFken`"V~;k ;kph fodz; foys[k fnukad 5-3-2015 dk fu"iknudRrkZ ugha dgk tk ldrk rFkk bl izdkj ewY;kuqlkj U;k;ky; Qhl dk Hkkj ml ij Mkyuk bl Lrj ij vU;k;kuqer gksxkA bu ifjfLFkfr;ksa esa vk{ksfir vkns'k fnukad 8-7-2016 vfHk[kafMr gksus ;ksX; gSA pw¡fd fyf[kr dFku vc Hkh izR;FkhZx.k }kjk izLrqr fd;k tkuk gSA mUgsa vius lHkh U;k;ky; Qhl ls lacaf/kr vk{ksi vius fyf[kr dFku esa mBkus dh Lora=rk gS tks fd U;k;ky; }kjk fof/k ds vuqlkj rFkk bl U;k;ky; }kjk fd, x, laizs{k.k ls izHkkfor gq, fcuk vfHkys[k ij lk{; ds vuqlkj fofuf'pr fd, tk,axsA ;g dguk vko';d gksxk fd flfoy izfdz;k lafgrk dh /kkjk 149 ds v/khu U;k;ky; 'kfDr;k¡ tks fd U;k;ky; Qhl dh deh iwjh djus ds fy, fufnZ"V djrh gS flfoy U;k;ky; }kjk vkJ; fy;k tk ldrk gS ;fn ,slk volj mn~Hkwr gksA 2010 ¼4½ ,e ih ,y ts 431 voyafcrA 2010 ¼3½ ,e ih ,y ts 625] 2016 ¼2½ ,e ih vkj Mh 449] 2017 ¼2½ ,e ih ,y ts 600] 2011 ¼2½ eŒizŒ ohDyh uksV~l 118 rFkk flfoy vihy dzŒ 2811&2813@2010 fu.khZr fnukad 29-3-2010 izHksfnrA
1. The petitioner/plaintiff has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 8.7.2016 passed by the III Additional Judge Class I to the Court of First Civil Judge, Class I, Bhopal in RCS No.946A/2015.
2. In brief the facts of the case are that the petitioner has filed a civil suit at Bhopal seeking declaration and permanent injunction against respondents No.1 to 6. The petitioner and the respondents No.1 and 2 are real brothers and sister. Their father Late Shri Govind Krishna Rao Zopey in his life time had made certain arrangements in respect of the property held by him through a Will in which the petitioner was given 1350 sq.ft. of constructed area whereas 360 sqft was given to his daughter Smt. Smita Zopey till her life time and thereafter the same was to devolve to the petitioner and the rest of the area was bequeathed to respondent No.2, the brother of petitioner.
3. For execution of the aforesaid Will, a civil suit was filed at Bhopal and it was decreed on 22.9.2010 and the property was partitioned wherein the petitioner was given 1350 sq.ft. of constructed area and Smt. Smita Zopey was given 360 sq.ft. only for her life time as thereafter it was to devolve to the petitioner.
4. Subsequently, the petitioner executed a power of attorney in favour of one Arjun Singh who is also the respondent No.3 herein whereby the petitioner had given him the power to sell the property in respect of his share only which is 1350 sq.ft. for a period from 6.3.2014 to 31.3.2014. It is submitted by the petitioner that in the aforesaid power of attorney, there is no reference that the property belonging to respondent No.1 is also covered under the said power of attorney. It is further submitted by the petitioner that since the petitioner has no right in the property of respondent No.1 which is admeasuring 360 sq.ft. till her life time, hence this property was not given under the power of attorney. It is further submitted by the petitioner that the aforesaid property of Smt. Smita Zopey was sold by her to respondents No.4, 5 and 6 in which respondent No.3 Arjun Singh (Petitioner’s power of attorney holder) consented as one of the signatory of the sale deed dated 7.3.2015.
5. The aforesaid sale deed dated 7.3.2015 was challenged by the petitioner in the Civil Suit No.946A/2015 wherein an application under Order 7 rule 11 of CPC has been filed by the respondent No.1 for the dismissal of the suit on the ground of deficient court-fee. The aforesaid application has been allowed by the learned Judge of the lower Court with a direction to the petitioner to pay the ad valorem court-fee. The aforesaid order dated 8.7.2016 is under challenge before this Court.
6. The contention of learned counsel for the petitioner is that the petitioner had not given any power of attorney to respondent No.3 Arjun Singh to sell the property of respondent No.1 and the petitioner is not made a party in the aforesaid sale deed and as such the sale deed is null and void. Hence the learned Judge ought not to have passed the order for payment of ad valorem court-fee.
7. It is further submitted by the learned counsel for the petitioner that the petitioner had given the power of attorney to respondent No.3 Arjun Singh for the area of 1350 sq.ft. which belongs to him only, hence on the basis of aforesaid power of attorney he should not have consented in the sale of his sister’s share i.e. 360 sq.ft. which would have come to him after the death of his sister and since the sale is null and void and is liable to be set aside for which the ad valorem court-fee is not payable. It is further submitted that even otherwise the life of power of attorney was hardly for one month from 6.3.2014 to 31.3.2014 which is mentioned on the front page of the power of attorney itself, hence in such circumstances when the petitioner was not party to the sale deed and since the same was tainted with the reason of fraud
