IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY st ON THE 21 OF NOVEMBER, 2024 CIVIL REVISION No. 677 of 2018 SMT. PREETI GOYAL Versus SATISH AND OTHERS Appearance:

SHRI P.C.CHANDIL - ADVOCATE WITH SHRI DINESH BAGHEL - ADVOCATE FOR THE PETITIONER.

SHRI J.P.SHARMA - ADVOCATE FOR RESPONDENT NO.1.

ORDER This revision petition is directed against the order dated 10.09.2018 th passed by the 14 Additional District Judge, Gwalior in Civil Suit No.62- A/2015, whereby the application moved by the petitioner/defendant No.4 under Order 7 Rule 11 of CPC has been disallowed.

2 . The Respondent No.1/plaintiff filed a suit for declaration and injunction against the petitioner and 13 other persons claiming 1/2 share in the disputed property. It was also pleaded by the plaintiff that the two sale deeds executed by his mother (defendant No.5) in respect of his share as guardian in favour of other defendants prior are null and void as at that time he was minor and no permission for alienation was taken by his mother. 3. The petitioner/defendant No.4 who is subsequent purchaser of the disputed property filed an application in the trial Court under Order 7 Rule Signature Not Verified Signed by: ADNAN HUSAIN

11 of CPC for the rejection of plaint on the ground that the plaintiff is party to both the sale deeds. But he has not properly valued the suit and has also not paid requisite Court Fees. The plaintiff is not in possession of the suit property. But still relief for possession has not been sought. Hence, the suit is barred by law under Section 34 of the Specific Relief Act. Hence, prayer for rejection of the plaint was made.

4. The plaintiff vehemently opposed the application and prayed for its rejection. The learned trial Court after hearing both the parties, dismissed the application holding the suit as maintainable.

5. Learned counsel for the petitioner submits that the impugned order is arbitrary and, hence unsustainable. The suit for declaration and injunction is not maintainable court fees and valuation is not proper. Hence, prayer has been made to set aside the impugned order and to reject the plaint.

6. Per contra, learned counsel for respondent/plaintiff has supported the impugned order.

7. Heard the arguments advanced by counsel for the parties and perused the material available on the record.

8. It is settled law that for deciding the application under Order 7 Rule

11 of CPC only the averments made in the plaint are taken into consideration and at this stage, the defence or the pleadings made by the defendants are not considered at all. After perusal of the plaint allegations, it is apparent that respondent No.5 who is the mother of the plaintiff has executed the sale deeds dated 10.08.2009 and 17.06.2009 in favour of defendants No.1, 2 & 3 and has sold the share of her minor son plaintiff also. It is the contention of Signature Not Verified Signed by: ADNAN HUSAIN the plaintiff that no permission of alienation was by by mother from the District Judge. But on this ground the sale transaction does not become void but voidable as the mother of the plaintiff is his natural guardian. Hence, plaintiff will be deemed to be the party to these deeds and unless and until these sale deeds are set aside or cancelled, they are binding on the plaintiff.

9. Thus, the suit filed by the plaintiff/respondent falls under the ambit of Section 7 (iv)(c) of the Court Fees Act and the provisions of Article 17 of this Act are not applicable as the declaration sought implies the relief of cancellation of the deed. Hence, the suit is required to be valued at the consideration mentioned in the sale deeds and ad valorem Court Fees is payable. The plaintiff has valued the suit as per the sale price of his share in the disputed property i.e., half of the total consideration mentioned in the sale deeds. But he has paid only fixed Court Fees which is not proper. Plaintiff is required to pay ad valorem Court Fees on the valuat