The court ruled that plaintiffs must set aside a prior decree to seek possession and pay ad-valorem Court-fees based on the reliefs sought, as they are consequential in nature.

ORDER

The present petition under Article 227 of the Constitution of India has been filed by the petitioner being aggrieved by the order dated 02.11.2022 passed by Civil Judge, Junior Division, Ganjbasoda, District Vidisha in Case No.37 of 2021 (RCSA) whereby an application preferred by the petitioner/defendant No.1 under Order 7 Rule 11 of the Code of Civil Procedure, 1908 which was preferred seeking a prayer for directing the plaintiff to value the suit properly and pay the ad-valorem Court-fees thereupon was rejected.

3. Learned Trial Court after hearing the matter had dismissed the said application. Aggrieved by the aforesaid dismissal, the present petition has been filed.

4. Learned counsel for the petitioner has vehemently argued that the learned Trial Court while passing the impugned order had totally skipped from considering that no relief of injunction or recovery of possession could have been granted without setting aside the decree, therefore, the same being consequential in nature deserved payment ad- valorem Court-fees.

5. It was further argued that since the suit was based upon two distinct sale-deeds of different considerations, therefore, the suit for relief of recovery of possession and declaration deserved to be valued upon joint consideration of both the reliefs, and therefore, valuation of suit was required to be mandatorily done on basis of the sale-deeds.

6. It was further argued that even if the finding of the learned Trial Court regarding non-consequential nature of reliefs is taken as it is, then also for the suit for possession, valuation was to be done at the market rate and thereupon, the ad-valorem Court-fees was required to be paid but this aspect has also been ignored by the Trial Court, therefore, the said order suffers from perversity and illegality and is liable to be set aside.

7. On the basis of the arguments, it was prayed that the present petition be allowed and respondents No.1 and 2/plaintiffs be directed to value suit properly and pay ad-valorem the Court-fees.

8. On the other hand, learned counsel for the respondents had supported the impugned order and contended that no illegality has been committed by the learned Trial Court in passing the impugned order.

9. Heard counsel for the parties and perused the record.

10. From the plaint averments and relief claimed therein, it could be observed that the judgment and decree dated 20.12.2019 passed in Civil Suit No.10 of 2016 in favour of present petitioner/defendant No.1 is sought to be declared null and void. Alongwith the aforesaid relief, relief of possession has also been sought and alongwith it, it is averred that as and when the possession is handed over to the plaintiffs then defendant No.1 be restrained from interfering with their possession.

11. This Court finds that until and unless, the judgment and decree dated 20.12.2019 is set aside, no decree for possession and thereafter, injunction can be granted and therefore, the reliefs of possession and injunction are not independent reliefs, but are consequential to the reliefs of setting aside judgment and decree dated 20.12.2019.

12. The Full Bench of this court in the matter of Santosh Chandra & others Vs. Gyan Sunder Bai & others reported in 1970 JLJ 290 has settled that where a plaintiff is not a party to an instrument, he cannot be deemed to be a representative in interest of the person who is bound by that instrument, he can sue for a declaration simpliciter provided he is also in possession of the property. The Full Bench has held as under:

"14. Thus, all these cases lay down the proposition that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is necessary for him to avoid that and unless he seeks