IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL ON THE 8^th OF JULY, 2022 WRIT PETITION No. 12475 of 2017 Between:-

1. SMT. USHA DEVI W/O SHRI RAJDHAR NAPIT , AGED ABOUT 46 YEARS, OCCUPATION: HOUSE WIFE POKHARI TOLA AMBEDKAR NAGAR BANSAGAR COLONY SAMAN REWA TEH. HUZUR DISTT. REWA (MADHYA PRADESH)

2. ANIL KUMAR NAPIT S/O SHRI RAJDHAR NAPIT , AGED ABOUT 27 YEARS, OCCUPATION: BUSINESSMAN R/O POKHARI TOLA, AMBEDKAR NAGAR, BANSAGAR COLONY SAMAN REWA TEHSIL HUZUR (MADHYA PRADESH)

.....PETITIONER (BY SHRI SANJAY KUMAR AGRAWAL, ADVOCATE)

AND

1. MURLIDHAR PRASAD PANDEY S/O LATE SHRI AYODHYA PRASAD PANDEY , AGED ABOUT 63 YEARS, OCCUPATION: PENSIONER GRAM BADRAON TEH. HUZUR DISTT. REWA PRESENTLY R/O GRAM POST MAGARLOD TEH. AND THANA MAGARLOD DISTT.

DHAMTARI (CHHATTISGARH)

2. MUNENDRA PRASAD PANDEY S/O LATE SHRI AYODHYA PRASAD PANDEY , AGED ABOUT 63 YEARS, OCCUPATION: AGRICULTURE R/O GRAM GADRAON, TEHSIL HUZUR, REWA PRESENTLY R/O MOHAN PRASAD PANDEY, A/63, OCCUP. AGRICULTURE R/O NEAR BUS STAND BYOHARI, THANA AND TEHSIL BYOHARI (MADHYA PRADESH)

3. COLLECTOR THE STATE OF MADHYA PRADESH DISTT-

REWA (MADHYA PRADESH)

.....RESPONDENTS (NONE FOR RESPONDENT NOS. 1 AND 2)

Signature Not Verified SAN (SHRI ANKIT AGRAWAL, GOVERNMENT ADVOCATE FOR RESPONDENT NO. 3/STATE)

This petition coming on for hearing this day, the court passed the following:

ORDER

This writ petition is filed by defendant nos. 2 and 3 before the trial court being nd aggrieved of order dated 22/07/2017 passed by the learned 2 Civil Judge Class-I, Rewa in Civil Suit No. 19-A/2016 whereby an application filed on behalf of the defendants under Order 7 Rule 11 has been rejected.

Learned counsel for the petitioners submits that an application under Order 7 Rule

11 C.P.C. was filed before the trial court raising objection as to maintainability of the suit on the ground that it was not properly valued and appropriate court fees is not paid. It is the petitioners' case that plaintiff is challenging the validity of the sale deed dated 15/06/2015 executed by the respondent no. 2 on the basis of power of attorney executed by the respondent no. 1/plaintiff, brother of respondent no. 2 in this writ petition.

Reliance is placed on the judgment of the M.P. High Court in the case of Harish Patel Vs. Sanjay Kumar I.L.R. (2015) M.P. 1676 and also on a judgment of the coordinate bench in the case of Prabhakar Vs. Sunil 2016 S.C.C. online M.P.

10831.

On a perusal of the record, it is evident that though notices were issued by registered A.D. post in compliance of order dated 23/08/2017 but nobody has put in appearance for the respondents. Service of notice on the respondents can be presumed in terms of the High Court Rules as more than thirty days time has lapsed and notices were dispatched by registered A.D. post, therefore, private respondents are proceeded ex parte.

After hearing learned counsel for the parties and going through the record, it is evident that the learned Civil Judge has mentioned in the impugned order that no power Signature Not Verified SAN of attorney was presented before it. Name of brother of the power of attorney holder is mentioned as one giving consent but his signatures are not available on the sale deed.

Even photographs of plaintiff is not available with the seller and, therefore, plaintiff is not liable to pay court fees according to suit valuation.

A careful perusal of the power of attorney on record reveals that plaintiff Murlidhar Prasad Pandey had given power of attorney in favour of Munendra Prasad Pandey in regard to sale of land contained in survey no. 994/1 measuring 0.657 hectares and remaining land being that of co-owner his brother Munendra Prasad Pandey. This power th of attorney is registered as document and was registered on 30 March, 2015.

th In the sale deed dated 15 June 2015, it is specifically mentioned that seller is Munendra Prasad Pandey. The consenter is Murlidhar Prasad Pandey through power of attorney Munendra Prasad Pandey and