IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 7 OF JANUARY, 2025 MISC. PETITION No. 3555 of 2024 VIJAY GIRI GOSWAMI Versus KU. PRIYA AGARWAL AND OTHERS Appearance:

Shri Bhanu Pratap Yadav - Advocate for petitioner.

Shri Ravi Tomar - Advocate for respondents.

ORDER This petition is filed assailing the order dated 25.05.2024 passed by the Civil Judge Class II Jabalpur (M.P.) in Regular Civil Suit No. 931A of 2018, whereby the trial Court has directed the petitioner to pay the sufficient deficit court fees by the next date of hearing.

2. It is the case of the petitioner that the respondents-plaintiffs have filed a suit for permanent injunction and later amended the suit into declaration and possession on the basis of sale deeds dated 05.09.2016 relating to the suit property. The petitioner-defendant filed his written statement denying the plaint's averments. He also filed a counter claim to declare the sale deed dated 05.09.2016 as null and void by paying the fixed court fees because the plaintiffs have executed the sale deed without paying any consideration to the petitioner. An application under Order 7 Rule 11 of CPC was filed by the plaintiffs on 10.02.2023 praying that the counter claim be dismissed on the ground of limitation and for want of insufficient court fees. The learned trial Signature Not Verified Signed by: TAJAMMUL Court after hearing the parties vide impugned order dated 25.05.2024 directed the petitioner-defendant to pay the sufficient deficit court fees by the next date of hearing.

3. It is argued that the petitioner-defendant is not liable to pay the deficit court fee, rather fixed court fee was required to be paid which is rightly paid. In the counter claim, the petitioner-defendant has specifically denied the averments made by the respondents-plaintiffs and sought the relief for declaration of sale deed dated 05.09.2016 as null and void on the ground that the sale deed has been executed by the plaintiffs without any sale consideration and the petitioner has not handed over the possession of the suit property, therefore, the sale deed dated 05.09.2016 is void ab-initio. The petitioner's counsel has placed reliance on the judgment passed by the Full Bench of this Court in the case of Sunil Radhelia v. Awadh Narayan, reported in ILR 2010 MP 2454 in support of his arguments.

4. Per contra, counsel appearing for the respondents-plaintiffs has vehemently opposed the petitioner's contentions and supported the impugned order pointing out the fact that learned trial Court has rightly assessed the entire facts and circumstances of the case and directed the petitioner- defendant to pay the deficit court fees by the next date of hearing. It is contended that learned trial Court has rightly observed that in the counter case, the relief for declaring the sale deed dated 05.09.2016 as null and void is prayed for. The defendant is not even a party to the sale deed. The case law which has been relied by petitioner's counsel is not applicable to the facts and circumstances of the case. In view of the relief which has been claimed Signature Not Verified Signed by: TAJAMMUL in the counter case, the petitioner is required to pay the ad valorem court fees. He has prayed for dismissal of the petition.

5. Heard learned counsels for the parties and perused the record.

6. The sole question which arises for consideration before this Court is whether the petitioner is required to pay the ad valorem court fees or not ?

7. This issue came up for consideration before the Full Bench of this Court in the case of Sunil Radhelia (supra) in a reference. The questions which was referred for consideration are as under :

“(1) Whether ad-valorem court fee is not payable when the plaintiff/plaintiffs make an allegation that the instrument is void and hence, not binding upon him/them?

(2) Whether the decision rendered in Narayan Singh (supra) lays down the law correctly that the plaintiff, a party to the i