ORDER

The petitioner/plaintiff has filed this petition assailing the order dated 15.09.2017 passed in civil suit No.49 A/2015 by the Trial Court.

Counsel for the petitioner/plaintiff submits that a suit is filed by the plaintiff before the Court below for partition, possession as well as declaration.

Counsel for the petitioner contends that there are specific pleadings in the plaint to the effect that the property in question belongs to undivided family and in which, the petitioner herein is in possession, yet defendant-Indra Kumar alienated the property on the strength of two sale deeds dated 06.12.2009 and 19.07.2009. Accordingly, it was prayed by the plaintiff in the prayer clause that the sale deeds are not binding on the plaintiff inasmuch as, the plaintiff is not party to aforesaid sale deeds. In the pending suit, the defendant No.10 herein earlier as well moved an application under Order 7 Rule 11 of CPC, on which, an order dated 19.12.2012 was passed and the same was assailed by the plaintiff by filing a petition before this Court vide W.P.No.21195/2012. This Court vide order dated 05.09.2013, disposed of the said writ petition with a direction to the plaintiff to put the valuation of the suit as per sale-deed and pay court fees so far as declaration is concerned, as the petitioner was not party to the sale-deed.

Counsel for the petitioner submits that despite there being a specific direction of this Court in W.P.No.21185/2012, defendant No.10 moved another application under Order 7 Rule 10/11 of CPC before the trial Court and Trial Court while dealing with the said application has passed impugned order dated 15.09.2017 and has directed the present plaintiff to pay the Court fees in proportion to 1/7th of market value at the property as per sale deed.

Counsel for the petitioner contends that the order impugned has been passed in complete ignorance of the order already passed by this Court in W.P.No.21185/2012 dated 05.09.2013. Counsel for the petitioner contends that the plaintiff was not a party to the sale deed therefore, he was not required to pay court fees, in terms of provision of Section 7 (iv)(c) of the Court Fees Act and thus, order impugned is nullity and unsustainable. The counsel thus while praying reliance upon the the decision of the full Bench of this Court in the case of Sunil vs. Awadh Narayan and Others reported in 2010(4) MPLJ 431 as well as a decision of this Court in the case of Baijnath Singh and Another vs. Jagdish and Others reported in 2014 (3) MPLJ 98 as well as in the case of Deepak Kumar vs. Dr. Komalshand and Ors. reported in 2016 (2) HCCD 880 (MP) , submits that the impugned order deserves to be quashed inasmuch as the same on the face of it, is perverse and unsustainable.

Per contra, counsel for respondent No.10 submits that present petition is misconceived inasmuch as the Court below while taking into consideration the contents of the plaint has rightly concluded that the plaintiff herein is required to pay the Court fees in proportion to 1/7th share of the property in terms of the market rate as per sale deed, therefore the same requires no interference.

Counsel also submits that in the suit in question, the plaintiff has prayed for a relief for possession and as there is consequential relief of possession thus, the plaintiff in terms of law laid down by the Apex Court in the case of Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors , reported in AIR 2010 SC 2807 , is required to pay the court fees. The Counsel for the respondent No.10 while taking this Court to the title of the plaint as well as relief clause-1 submits that there is no iota of a confusion that the plaintiff herein has prayed for consequential relief of possession and therefore, no interference is required so far as the order impugned is concerned.

Thus, the counsel for the respondent No.10 submits that impugned order required no interference inasmuch as, the issue in question is no more re