Full Judgment
Writ Petition No.16943/2013 08.10.2013 Shri D.K.Shrivastava, learned counsel for the petitioner.
He is heard on the question of admission.
Petitioner - plaintiff has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 2.9.2013, (P-1).passed by 12th Civil Judge, Class-I, Bhopal whereby considering the application of respondent No.5- defendant filed under Order 7, Rule 11 of CPC, the petitioner has been directed to make advolerum valuation of the suit on the value of the alleged sale deed, (Ann.
P-3) executed by the respondent No.3 in favour of respondent No.4 and pay the court fee accordingly failing which the suit may be dismissed without extension of any further opportunity to correct the valuation and payment of the court fee accordingly.
The petitioner's counsel after taking me through the papers placed on record alongwith the impugned order argued that plaintiff accompanied with respondent Nos.1 and 2 had purchased the aforesaid land in their joint names from its earlier owner by registered sale deed, (Ann.
P-2) and subsequently respondent Nos.1 and 2 themselves and respondent No.3 by projecting herself to be the power of attorney holder of the present petitioner have jointly sold such land to the respondent No.4 and he said that the petitioner has neither executed the power of attorney nor appointed to respondent No.3, his sister to be his power of attorney to execute such document and without his consent under some conspiracy such sale deed, (Ann.
P-3) was executed by the respondent Nos.1, 2 and 3 in favour of respondent No.4.
The property was remained and is still in possession of the petitioner.
In continuation he said that as soon as the petitioner came to know about the aforesaid, then immediately he filed the impugned suit for declaration and perpetual injunction declaring the aforesaid sale deed, (Ann.
P-3) to be ab initio void till the extent of petitioner and for perpetual injunction to protect his right over the land.
But in pendency of the suit, aforesaid IA was filed by the respondent/ defendant No.5, the subsequent purchaser from respondent no.4 for dismissal of the suit in the lack of proper valuation and court fee accordingly.
He said that on proper appreciation of the available factual matrix, this application ought to have been dismissed by the trial court taking into consideration that such sale deed, (Ann.
P-3) was executed by the respondent No.3 on behalf of petitioner on the basis of forged and fabricated power of attorney, so also without consent of the petitioner and in such premises, only fixed valuation of the suit and the court fee accordingly is required in the matter and the same has been paid.
The petitioner is not bound to value the suit on the value of the consideration of the sale deed, (Ann.
P-2) and to pay the court fee accordingly and prayed for setting aside the impugned order by dismissing the aforesaid application of the respondent No.5 by admitting and allowing this petition.
Keeping in view the arguments advanced by the counsel, I have carefully gone through the papers placed on record alongwith the impugned order.
True it is that the impugned property was purchased by the petitioner and respondent Nos.1 and 2 through sale deed in their joint names and thereafter by way of sale deed, (Ann.
P-3).the respondent Nos.1, 2 and on behalf of the petitioner the respondent No.3 by projecting herself to be the power of attorney of the petitioner have executed the sale deed in favour of respondent No.4.
It is also apparent on record that the respondent No.3 is real sister of the present petitioner.
So there is a prima facie circumstances, on which, it could be inferred that power of attorney was executed by the petitioner in favour of respondent No.3, his sister and on the strength of the same accompanied with respondent Nos.1 and 2 co-owners of the property, she has executed the sale deed in favour of respondent No.4 in consideration of Rs.4,50,000/-.
So in such premises, it is apparent that the petitioner - plaintiff filed the suit to declare the sale deed to be ab initio void, which has been executed on his behalf by his power of attorney.
So in such circumstances, prima facie it shall be inferred that he was party of the impugned sale deed executed by his power of attorney with his consent in favour of respondent No.4 and in such premises, the petitioner is bound to value the suit equal to the consideration of sale deed, (Ann.
P-3).Rs.4,50,000/- and also bound to pay the court fee accordingly.
It is apparent from the impugned order that such aspect has been considered by the trial court taking into consideration the earlier decision of this court in the matter of Amika Prasad versus Ram Shiromani, reported in AIR2011M.P.18, which is based on the principle laid down by the Apex Court in the matter of Suhrid Singh @ Sardool Singh versus Randhir Singh and others reported in AIR 2010 SC2807 So in the aforesaid premises, the impugned order does not appear to be illegal, irregular or against the propriety of law.
Besides this, the impugned order being passed by the trial court under the vested discretionary jurisdiction could not be interfered at this stage, as laid down by Apex Court in the matter of Shamsher Singh versus Rajinder Prashad and others reported in AIR 1973 SC2384 In view of the aforesaid discussion, this petition being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing.
However, in the available circumstances, the petitioner is extended further period of 30 days from today to take appropriate steps to amend and modify the valuation of the suit, so also to pay the court fee accordingly before the trial court failing which the petitioner shall not be entitled to get benefit of this direction.
C c as per rules.
(U.C.Maheshwari) Judge bks