IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE JUSTICE SUSHRUT ARVIND DHARMADHIKARI th ON THE 16 OF JULY, 2024 MISC. PETITION No. 3337 of 2022 BABU KHAN Versus LAL KHAN AND OTHERS Appearance:

Shri M.A. Mansoori, learned counsel for the petitioner.

Shri S.A. Warsi, learned counsel for the respondents.

O R D E R Per: S.A. Dharmadhikari, J:

With the consent of both the parties, heard finally.

In this petition under Article 227 of the Constitution of India, the petitioner (plaintiff) has assailed the legality, validity and propriety of the order dated 28.06.2022 passed by the II Civil Judge, Junior Division, District – Ratlam in Civil Suit No.36-A/2021, whereby the learned trial Court directed the petitioner to calculate the valuation of the suit in accordance with market value of the suit property as mentioned in gift deed.

02. Brief facts of the case are that the petitioner/ plaintiff has preferred a suit seeking declaration, partition and perpetual injunction against the respondents / defendants before the trial Court in respect of agricultural land bearing Survey No.473/2 area 0.695 hectare situated at Village – Kushalgad, District – Ratlam. A gift deed dated 06.11.2020 was executed Signature Not Verified by the plaintiff's father in favour of defendant No.1. The plaintiff has filed the suit on the ground that the gift deed is not binding upon him, since his father being an old aged person and not mentally fit, has executed the gift deed.

03. After service of summons, defendants No.1 to 8 moved an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) stating therein that the plaintiff has not properly valued the suit as per the market value of the suit property and also not paid the court fee.

Accordingly, the defendants have prayed for dismissal of the suit.

04. The aforesaid application was opposed by the plaintiff, however, the learned trial Court vide order dated 28.06.2022 partially dismissed the application and directed the plaintiff to fix the court fee as per the market value of the suit property as mentioned in the gift deed and also pay ad valorem court fee. Being aggrieved by the order dated 28.06.2022, present miscellaneous petition has been filed.

05. Learned counsel for the petitioner / plaintiff contended that the father of the plaintiff is the executant of the gift deed and he is seeking cancellation of the same on the ground that as per Section 7(iv)(c)(d) and Article 17 of Schedule – II of the Court Fees Act, 1970, the plaintiff is liable to pay the ad valorem court fee. The trial Court has erred in coming to the conclusion by directing the petitioner pay the court fee as per the market value of the suit property. Learned counsel further contended that the plaintiff has specifically alleged in the plaint that that gift deed in question was not executed by defendant No.1 by playing fraud upon the plaintiff's father, therefore, the plaintiff is not supposed the pay the court fee. The learned trial Court has failed to appreciate the fact that the plaintiff has made an allegation that the instrument is void, hence, no binding upon him. The learned trial Court has filed to consider the fact that looking to plaint's averment as the gift deed in question is pleaded to be Signature Not Verified void, fixed court fee under Article 17 (iii) of Schedule – II of the Court Fee Act is sufficient. In view of the aforesaid, the order passed by the trial Court deserves to be set aside.

06. Per contra, learned counsel for the respondents / defendants that for computation of the court fee, the mode and manner has been prescribed. In the present suit for a declaratory decree with consequential relief, the court fee would have to be calculated with reference to the averment made in the plaint in terms of Section 7(iv)(c) of the Court Fee Act and not ad valorem court fee. Had the suit being filed only for declaratory decree with consequential relief, Article 17(iii) of Schedule – II of the