# Dr. Sushil Suri Revisionist v. Hari Suri & Ors

- **Citation:** (2023) 2 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-31
- **Case number:** Civil Revision No. 4 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-sushil-suri-revisionist-v-hari-suri-ors-49637
- **Pages:** 10

## Headnote

A. Civil Law -Code of Civil Procedure,
1908-Section 115 - Court Fees Act,1870Sections 7(iv-A), 7(v), (v-A), (v-B) (as
inserted by State of U.P.)- Court feesComputation-Market
value-In
cases
where suits are filed in a court having
unlimited
pecuniary
jurisdictionDefendant does not have any vested right
to raise objections regarding valuation of
suit property and court fees paid thereonHowever it is for Court concerned to
consider same in case it finds valuation of
suit
property
and
Court
fees
paid
thereupon
to
be
arbitrary
or
demonstratively undervalued-Court fees
for said suit would have to be calculated
in reference to averments in plaint in
terms of section 7(iv)(c) r/w section 7(v)
and not ad valorem Court fee on market
value-If suit would have been only for
declaratory decree without consequential
relief, Article 17(iii) of Sch. II would have
been applicable.(Para 1 to 25)

The revision is allowed. (E-6)

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 2 ILRA 18
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.01.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Civil Revision No. 4 of 2023

Dr. Sushil Suri ...Revisionist
Versus
Hari Suri & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Pritish Kumar, Shantanu Gupta

Counsel for the Opposite Party:
Akber Ahmad, Harsh Vardhan Mehrotra

A. Civil Law -Code of Civil Procedure,
1908-Section 115 - Court Fees Act,1870Sections 7(iv-A), 7(v), (v-A), (v-B) (as
inserted by State of U.P.)- Court feesComputation-Market
value-In
cases
where suits are filed in a court having
unlimited
pecuniary
jurisdictionDefendant does not have any vested right
to raise objections regarding valuation of
suit property and court fees paid thereonHowever it is for Court concerned to
consider same in case it finds valuation of
suit
property
and
Court
fees
paid
thereupon
to
be
arbitrary
or
demonstratively undervalued-Court fees
for said suit would have to be calculated
in reference to averments in plaint in
terms of section 7(iv)(c) r/w section 7(v)
and not ad valorem Court fee on market
value-If suit would have been only for
declaratory decree without consequential
relief, Article 17(iii) of Sch. II would have
been applicable.(Para 1 to 25)

The revision is allowed. (E-6)
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Pritish Kumar assisted by
Mr. Shantanu Gupta Advocate learned
counsel for petitioner, Mr. S.K. Kalia Senior
Advocate assisted by Mr. Akber Ahmad
learned counsel for opposite party No.1 and
Mr. Abhinav Bhattacharya learned counsel
for opposite parties 3 and 4.

2. Learned counsel for party admit
that the opposite party no.2 is in relation to
the opposite parties no.3 and 4, who are
already represented and notices may be
dispensed with. In view of aforesaid,
notices to opposite party no.2 stand
dispensed
with
and
case
is
being
adjudicated at admission stage with consent
of learned counsel for parties since no
questions of fact are involved.

3. Civil Revision under Section 115 of
the Code Civil Procedure has been filed
against order dated 3rd December, 2022
passed in regular suit No. 342 of 2015
whereby preliminary issue No.3 regarding
valuation of suit and court fees paid thereon
has been decided against revisionistplaintiff.

4. Learned counsel for revisionist
submits that revisionist had filed suit for
partition of properties indicated in the
plaint which included one residential plot,
one commercial plot and a building. It is
submitted that the suit was valued at
Rs.2,72,12,403/- and court fees thereon was
paid at 20 times the annual rental value in
terms of Section 7(v)(I)(c) of the Court
Fees Act, 1870 with regard to the two plots
and similarly court fees was paid as per
nagar palika rental in terms of section
7(v)(II). It is submitted that aforesaid
method of determining market value of the
properties is one of the modes of
determination thereof which has been an
accepted
principle
in
various
pronouncements as per U.P. Amendment to
Court Fees Act, 1870.
2 All. Dr. Sushil Suri Vs. Hari Suri & Ors.
19

5. It is submitted that however the
trial court by means of impugned order
while holding court fees to be payable in
terms of Section 7(v)(I)(c) and Section
7(v)(II) has found the courts fees to be
deficient on the ground that the revisionistplaintiff was required to pay courts fees on
the market value of the properties. It is
further submitted that while indicating
court fees to be paid in terms of aforesaid
provisions, the impugned order does not
indicate as to how the term market value
has been determined by the trial court and
even the short fall of court fees has not
been indicated in the order leaving it to the
wisdom of the revisionist-plaintiff to make
good the deficiency. As such it is submitted
that not only is the order impugned against
provisions of Section 7 of the Act but also
against settled law thereupon and is also
vague.

6. Learned counsel has further
submitted that it is admitted that trial court
in present case has unlimited pecuniary
jurisdiction and therefore the opposite
parties-defendants do not have any right or
locus to challenge the court fees paid by
revisionist-plaintiff.

7. Learned Senior counsel appearing
on behalf of opposite parties has refuted
submissions advanced by learned counsel
for revisionist with the submission that
although the term 'market value' has not
been defined any where in the Act but the
same can not be taken to be the annual
rental value particularly since the plots in
question were never let out and is in fact
required to be determined as per the circle
rate notified by the Collector. It has been
further submitted that suit being for
partition of properties, there is no concept
of plaintiff and defendant and all the parties
to the proceedings have equal interest in the
properties and therefore the defendant has a
locus to raise objections regarding under
valuation of suit and deficiency of court
fees.

8. It has also been submitted that for
proper determination of market value of the
suit properties, the opposite parties -
defendants had filed application No.C-144
before the trial court for issuance of
commission and although objections C-155
were filed by the revisionist-plaintiff, the
same has not been decided on the ground
that it does not require any consideration.

9. Learned counsel has also adverted
to the fact that in earlier proceedings
between the parties pertaining to permanent
injunction, regular suit bearing No. 1364 of
2012 filed by the present plaintiffs, the
aforesaid three properties were shown
valued at rupees ten crores and therefore it
is inconceivable that market value of
aforesaid
three
properties
has
been
diminished to the extent as claimed in the
present proceedings which have been filed
only three years thereafter although price
of land in Lucknow has been increasing at
the rate of 15% per annum. It has been
submitted
that
proper
valuation
of
properties in question have been clearly
indicated in written statement filed by
defendants and as such valuation of suit
was required to be done in accordance
thereof and court fees also paid in such
terms.

10. Learned counsel has also adverted
to the plaint and the prayer indicated
therein to submit that revisionist-plaintiff is
seeking a declaration of cancellation of
registered will dated 11th June, 2004
executed by late Govind Ram Suri without
specific relief being prayed therefor and in
such circumstances also the the prayer as
20 INDIAN LAW REPORTS ALLAHABAD SERIES
made in plaint was defective and court fees
was required to be paid also in terms of
cancellation of will deed.

11. In view of submissions advanced
by
learned
counsel
for
parties,
the
following questions arise for determination
in present revision:-

(A) Whether determination of
'market value' as contemplated under
Section 7(v)(I)(c) would subsume annual
rental value/nagar palika rental over plots
or buildings amongst other modes of
determination ?

(B) Whether in cases of unlimited
pecuniary
jurisdiction
of
trial
court,
defendant has any locus to raise objections
regarding valuation of suit and court fees
paid thereon?

(C) Whether ad valorem court
fees was payable with regard to relief of
declaration regarding will although no
specific prayer for cancellation thereof was
made?

12. The aforesaid questions are being
answered as follows:-

Question-A: The provision for
payment of court fees pertaining to
properties to a suit for partition are
indicated in Section 7 of the Act; the
relevant portions of which are as follows:-

"7 (vi-A) for partition- In suits for
partition.-

according to the full value of such
share if on the date of presenting the plaint
the plaintiff is out of possession of the
property of which he claims to be a coparcener or co-owner, and his claim to be a
co-parcener or co-owner on such date is
denied.

Explanation.- The value of the
property for the purposes of this sub-section
shall be the market-value which in the case of
immovable property shall be deemed to be
the value as computed in accordance with
sub-sections (v), (v-A) or (v-B), as the case
may be.

7(v)For
possession
of
lands,
building or gardens. - In suits for the
possession of land, buildings or gardens-
according to the value of the subject-matter;
and such value shall be deemed to be-

(I) where the subject-matter is
land, and-

(a) where the land forms an entire
estate or a definite share of an estate paying
annual revenue to Government, or forms part
of such an estate, and is recorded in the
Collector's register as separately assessed
with such revenue and such revenue is
permanently settled-

thirty times the revenue so payable
;

(b) where the land forms an entire
estate or a definite share of an estate paying
annual revenue to Government, or forms part
of such estate and is recorded as aforesaid
and such revenue is settled by not
permanently-

ten times the revenue so payable;

(c) where the lands pays no such
revenue or has been partially exempted from
such payment, or is charged with any fixed
payment in lieu of such revenue, and net
profits have arisen from the land during the
three years immediately preceding the date of
presenting the plaint-

twenty times the annual average of
such net profits ; but when no such net profits
have arisen therefrom the market value which
shall be determined by multiplying by twenty
the annual average net profits of similar land
for the three years immediately preceding the
date of presenting the plaint;

(d) where the land forms part of
an estate paying revenue to Government,
but is not a definite share of such estate
2 All. Dr. Sushil Suri Vs. Hari Suri & Ors.
21
and docs not come under clause (a), (b) or
(c) above-

the market value of the land
which shall be determined by multiplying
by fifteen the rental value of the land,
including assumed rent on proprietary
cultivation, if any ;

(II) where the subject-matter is a
building or garden-

according to the market-value of
the building or garden, as the case may be.

Explanation. - The word 'estate' as
used in this sub-section, means any land
subject to the payment of revenue for which
the proprietor or farmer or raiyat shall have
executed
a
separate
engagement
lo
Government or which, in the absence of such
engagement, shall have been separately
assessed with revenue."

13. A perusal of the Act also indicates
that the term 'market value' has not been
defined anywhere in the Act although the
same has been explained in a number of
judgments of Hon'ble Supreme Court as well
as this Court.

14. A reading of Section 7(V)(I)(c)
provides for valuation and payment of court
fees regarding lands which either do not pay
any revenue or have been partially exempted
from such payment or is charged with any
fixed payment in lieu of such revenue and
also contemplates when net profits have
arisen from land or even otherwise when no
such net profits have arisen then it is the
market value which is to be determined. As
noticed herein above the term 'market value'
has not been defined under the Act but in the
case of C.L. Basra versus Pearey Lal Basra &
another reported in AIR 1960 Allahabad 590
has held as follows:-

"
19.
The
suit
being
for
possession, court fee was payable under
Section 7(v)(II) of the Court Fees Act, i.e.
on the market value of the building. The
term 'market value' has not been defined in
the Act. and for this reason it can be
determined in any manner considered
proper. Strictly speaking, market value of a
building cannot be taken to be the cost of
its
construction
less
depreciation.
If
buildings are in great demand and there is
paucity of accommodation, people may be
willing to pay a much higher value. But if
there is no demand for buildings, for
example, at bill stations like Mussoorie, the
market value thereof i.e. the price at which
people are willing to purchase them, would
be less than the cost of construction less
depreciation.

The market value will thus greatly
depend on the supply and demand for
building i.e. on a fluctuating factor. It is
consequently difficult for parties to the
proceeding to adduce evidence on the
market value of a building, and for the
courts to lay down how the market value
should be calculated. It is for this reason
that
the
cost
of
construction
less
depreciation is often regarded as a safe
mode of computing the market value of a
building. The market value can also be
determined by other modes, for example,
any rule framed by the Government or a
rule approved of by the Courts of law, or
any usage or custom prevalent in the area
and having the force of law.

From a decision of the Custodian
General of Evacuee Property in Mst. Aislia
Bi v. Custodian of Evacuee Property,
Bhopal, Case No. 27 of the Killings of the
Custodian General Volume I by Bhawani
Lal and Harbans Lal Mittal, it appears that
the Evacuee Department regards 20 years
produce as a fair estimate of market value
of a house: in fact, as mentioned therein, at
numerous occasions value of a house was
fixed at 25 to 30 years' rent. When a quasi-
22 INDIAN LAW REPORTS ALLAHABAD SERIES
judicial tribunal has adopted the rule of
assessing the valuation at 20 times the
annual rent, the subordinate courts could
adopt this rule, all the more, when for
Government buildings rent is fixed on
almost a similar basis.

In Uttar Pradesh annual rent of
State
owned
residential
buildings
is
invariably fixed at 6 per cent, of the
valuation of the super-structure (cost less
value of land). If this figure is taken as the
guide, 16 2/3 times the annual rent shall be
the valuation of the building alone. When
the Munsif and also the learned District
Judge determined the market value of the
building including land at 20 times the
annual rent, it cannot be said that they
were in the wrong. In any case, that will not
be a ground for interference by this Court."

15. In the case of Mitthoo Lal versus
Gopal Chand reported in AIR 1979
Allahabad 226 the provisions of Section 7
pertaining to suit for partition has been
considered in the following terms:-

19. Section 7(vi-a)' of the Court
Fees Act relates to suits for partition. In the
case of Mohd. Mustaq v. Mst Baqridan, AIR
1952 All 413 it was held that a suit for
partition of the plaintiffs' share must be
valued for purposes of jurisdiction under
Section 4 of the Suits Valuation Act
according to the share of the plaintiff. In
this case an earlier decision of this Court
was relied on. Thus there is a direct
authority
of
this
Court against
the
appellant. Moreover, the words used are
"property involved in or the total of which
is affected by the relief sought". In the
instant case the respondent claims half
share in the property. Thus the suit relates
to the half share of the respondent in the
property. The relief claimed relates to the
half share of the respondent in the property.
There is no dispute to the half share of the
appellant in the property.

This point may be considered
from another aspect. In suits for partition,
where the plaintiff is not in actual
possession of the property sought to be
partitioned, relief of possession is claim- .
ed. Section 7(VI-A) of the Court Fees Act
lays down that in suit for partition the court
fees is chargeable according to the one
quarter of the value of the plaintiff's share,
or according to the full value of the
plaintiff's share, if the plaintiff was out of
possession on the date of presenting the
plaint. There is an explanation attached to
this sub-clause. This explanation says that
the value of the property shall be the
market value computed in accordance with
sub-section (V), Sub-sections (V-A) and (VB) are not mentioned here because they are
not applicable to the instant case. Section
7(V)(II) lays down that in suits for
possession of a building, the court-fee
chargeable is according to the market value
of the building. Section 4 of the Suits
Valuation Act also refers to Section 7(V)
and it clearly says that suits for possession
of a building for the purposes of
jurisdiction shall be valued at the market
value of the property involved. Thus where
in a suit for partition the plaintiff also
claims possession of the property allotted
to him, he would be liable to pay court fee
on the market value of the property upon
which he seeks possession. Therefore, for
the purposes of jurisdiction also the
property upon which possession is sought
has to be valued at its market value. Thus
there is reciprocity between Section 7(V) of
the Court Fees Act and Section 4 of the
Suits Valuation Act.

xxx xxxx xxxx

22. With regard to the market
value there is a clear finding of the learned
Munsif. There appears no mistake in
2 All. Dr. Sushil Suri Vs. Hari Suri & Ors.
23
arriving at the said value. It shall be
noticed that the learned Munsif fixed the
value at 20 times of the annual rental. This
is one of the modes of finding out the
valuation and it cannot necessarily be said
to be wrong."

16. The aforesaid judgment of
Mitthoo Lal (supra) has been followed
thereafter with approval in the case of
Rama Kant Malviya versus District Judge,
Allahabad and others reported in (2002)48
ALR 156.

17. Subsequently in the case of Tara
Devi versus Sri Thakur Radha Krishna
Maharaj, through Sebaits Chandeshwar
Prasad and Meshwar Prasad and another
reported in (1987) 4 Supreme Court Cases
69 it has been held as follows:-

"It is now well settled by the
decisions of this Court in Sathappa
Chettiar v. Ramanathan Chettiar [AIR 1958
SC 245 : 1958 Mad LJ (Cri) 148 : 1958
SCR
1024]
and
Meenakshisundaram
Chettiar v. Venkatachalam Chettiar [(1980)
1 SCC 616 : AIR 1979 SC 989 : (1979) 3
SCR 385] that in a suit for declaration with
consequential relief falling under Section
7(iv)(c) of the Court Fees Act, 1870, the
plaintiff is free to make his own estimation
of the reliefs sought in the plaint and such
valuation both for the purposes of court-fee
and jurisdiction has to be ordinarily
accepted. It is only in cases where it
appears to the court on a consideration of
the facts and circumstances of the case that
the valuation is arbitrary, unreasonable
and the plaint has been demonstratively
undervalued, the court can examine the
valuation and can revise the same. The
plaintiff has valued the leasehold interest
on the basis of the rent. Such a valuation,
as has been rightly held by the courts
below, is reasonable and the same is not
demonstratively arbitrary nor there has
been any deliberate underestimation of the
reliefs."

18. In the case of Agra Diocesan Trust
Association versus Anil David and others
reported in (2020) 19 Supreme Court Cases
183 it has been held as follows:-

" In the opinion of this Court,
there was no compulsion for the plaintiff to,
at the stage of filing the suit, prove or
establish the claim that the suit lands were
revenue paying and the details of such
revenue paid. Once it is conceded that the
value of the land [per Explanation to
Section 7(iv-A)] is to be determined
according to either sub-clauses (v), (va) or
(vb) of the Act, this meant that the concept
of "market value" -- a wider concept in
other contexts, was deemed to be referrable
to one or other modes of determining the
value under sub-clauses (v), (va) or (vb) of
Section 7(iv-A). This aspect was lost sight
of by the High Court, in the facts of this
case. The reasoning and conclusions of the
High Court, are therefore, not sustainable."

19. Upon perusal of aforesaid
judgments, it is apparent that concept of
market value has been explained in the
aforesaid judgments that it would have
wider concept and would be deemed to be
referable to one or other modes of
determining the value under sub clauses
(v)(va) or (v)(b) of Section 7(iv-a) and that
annual rental value of a plot or building
would be one of the valid modes of
determination of valuation of suit property
and payment of court fees thereupon.

20. The aspect of circle rate as notified
by the Collector of district, in the considered
opinion of this Court can not be a valid
24 INDIAN LAW REPORTS ALLAHABAD SERIES
proposition for determining market value of a
suit property since the said aspect pertains to
assessment of market value of landed
property only for the purposes of registration
of deeds and imposing stamp duty by revenue
authorities. The same can not be extended for
valuation of properties pertaining to partition
suits and for payment of court fees thereupon.
The concept is also explainable in another
way that the circle rate is also dependent on
the market value of immovable properties as
per demand and supply and the said factor
has also not been held to be appropriate in the
case of C.L. Basra (supra) as quoted herein
above particularly since demand and supply
of immovable properties in a particular
locality or district or even state is variable and
may be a fluctuating factor.

21. The aspect of circle rate being taken
for purposes of market value has already been
deprecated by Division Bench of this Court in
the case of M/s Nadeem Apartments Private
Limited versus State of U.P. and others reported
in 2004(55) ALR 575 to the effect that circle
rate can never be taken to be the proper rate to
assess actual market value of the landed
property since it is meant only for the
registration of sale-deeds for imposing stamp
duty by revenue authority.

22. Learned counsel for opposite parties
has also adverted to earlier suit filed by
revisionist-plaintiff for permanent injunction in
which a considerably higher valuation of
properties was indicated and it has been
submitted that valuation of property would not
lower to such a considerable level as has been
indicated in present suit which has been filed
within three years thereafter.

23. The aforesaid submission does not
hold good ground particularly in view of what
has been held in the case of C.L. Basra (supra)
that property prices in various localities keep
fluctuating from time to time and it would be an
onerous task for any court to keep determining
such fluctuating rates every year and as such it
would be appropriate that the average rental
value of property should be taken and be
multiplied as indicated in the provisions of Act
itself.

24. Learned counsel for opposite parties
have referred to the following various
judgments to buttress his submissions:-

25. Onkarlal and others versus Ram
Sarup and others reported in ILR 1954 All.
106(FB), Sanjay Tomar versus Shobha Saklani
and another reported in 2018 SCC OnLine All
993 and Mohd Yamin and others versus Mulla
Abdul Sattar and others reported in 2000 SCC
OnLine All 492.

26. So far as judgment in the case of
Onkarlal (supra) is concerned, it is evident that
the same pertains to determination of court fees
in case plaintiff is not in possession of property
which is sought to be partitioned in the suit. The
aforesaid judgment as such does not have any
application
in
the
present
facts
and
circumstances of the case which pertains only
to definition of the term 'market value' and not
with regard to whether ad valorem court fees is
payable in view of consequential relief sought.

27. The cases of Sanjay Tomar and Mohd
Yamin (supra) are also inapplicable in the facts
of case since it also involves the issue whether
court fees payable should be as per the
plaintiff's share or on the entire property since
plaintiff was not in possession over the property
sought to be partitioned. As such the said
judgments also not pertaining to determination
of market value, are also inapplicable.

28. Considering the aforesaid, it is
apparent that payment of court fees taking
annual rental value of any immovable
2 All. Dr. Sushil Suri Vs. Hari Suri & Ors.
25
property is one of the safe methods for
determining market value of property in
terms of section 7 (V)(I)(c) of the Act and
therefore the trial court has clearly erred in
not accepting the same. The question
therefore is answered in the affirmative in
favour of revisionist-plaintiff.

29. Question-B: So far as this
question is concerned, it is admitted
between the parties the suit in question has
been filed in court which has unlimited
pecuniary jurisdiction.

30. With regard to the said question, it
is admitted between the parties that suit
proceedings are pending in a court which
has unlimited pecuniary jurisdiction. In the
light of aforesaid, Hon'ble Supreme Court
in the case of Sujir Keshav Nayak versus
Sujir Ganesh Nayak reproted in (1992) 1
Supreme Court Cases 731 has held as
follows:-

"It is now well settled by the
decisions of this Court in Sathappa
Chettiar v. Ramanathan Chettiar [1958
SCR 1024 : AIR 1958 SC 245] and
Meenakshisundaram
Chettiar
v.
Venkatachalam Chettiar [(1980) 1 SCC
616] that in a suit for declaration with
consequential relief falling under Section
7(iv)(c) of the Court Fees Act, 1870, the
plaintiff is free to make his own estimation
of the reliefs sought in the plaint and such
valuation both for the purposes of court fee
and jurisdiction has to be ordinarily
accepted. It is only in cases where it
appears to the court on a consideration of
the facts and circumstances of the case that
the valuation is arbitrary, unreasonable
and the plaint has been demonstratively
undervalued, the court can examine the
valuation and can revise the same."

But the defendant has no right to
raise such objection nor the court should
delve into the matter after filing of written
statement on evidence. The law on this
aspect, thus, should be taken to be as
under:

(1) Where the question of court
fee is linked with jurisdiction a defendant
has a right to raise objection and the court
should decide it as a preliminary issue.

(2) But in those cases where the
suit
is
filed
in
court
of
unlimited
jurisdiction the valuation disclosed by the
plaintiff or payment of amount of court fee
on relief claimed in plaint or memorandum
of appeal should be taken as correct.

(3) This does not preclude the
court even in suits filed in courts of
unlimited jurisdiction from examining if the
valuation, on averments in plaint, is
arbitrary."

31. A coordinate Bench of this Court
in the case of Smt. Santosh Kumari and
another versus Sukh Dev Singh, Civil
Revision No. 555 of 2014 as follows:-

"5. The Court Fees Act was
enacted to collect revenue for the benefit of
the State and a contesting party cannot use
it as a tool to obstruct the trial. It is
difficult to understand what grievance the
defendant can make by seeking to invoke
the revisional jurisdiction on the question
whether the plaintiff has paid adequate
court-fee on his plaint. Whether proper
court-fee is paid on a plaint is primarily a
question between the plaintiff and the State.
Even if the defendant believes honestly that
proper court-fee has not been paid by the
plaintiff, still he has no right to move the
superior court against the order adjudging
payment of court-fee payable on the
plaint."
26 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Upon applicability of aforesaid
judgments
in
the
present
facts
and
circumstances, it is evident that in such
case as the present one where the court has
unlimited
pecuniary
jurisdiction,
the
defendant does not have any vested right to
raise
objections
and
in
case
where
valuation is disclosed by the plaintiff on the
relief claimed in the plaint, the same should
be taken as correct. Since the plaintiff is
free to make his own estimation of the
reliefs sought in the plaint and therefore his
valuation for the purposes of court fees has
to be ordinarily accepted. The word of
caution in such cases is only in case the
court concerned comes to conclusion that
the valuation is arbitrary, unreasonable or
demonstratively undervalued. However the
same does not give any right to the
defendant to use it as the defence merely to
frustrate the claims of the plaintiff.

33. Judgments cited by learned counsel
for opposite parties with regard to same R.
Ramamurthi Iyer versus Raja Rajeshwara
Rao reported in (1972) 2 Supreme Court
Cases 721 does not have any application in
the present facts and circumstances since
proceedings therein pertained to withdrawal
of suit proceedings and for purchase of share
in partition by a co-sharer as per valuation,
which was not for the purposes of payment of
court fees. Similarly the case of Dhiren
Ghosh versus Mayarani @ Karibala Ghosh
and others reported in 2018 SCC OnLine Cal
3487 pertained to an application filed by cosharer under Order 1 Rule (10) of the Code of
Civil Procedure since the proceedings
pertained to partition. As such it is evident
that judgments cited on that point by learned
counsel for opposite parties do not have any
application in the present case and it is
therefore held that in cases where suits have
are filed in a court having unlimited
pecuniary jurisdiction, the defendant does not
have any vested right to raise objections
regarding valuation of suit property and court
fees paid thereon. However it is for the court
concerned to consider the same in case it
finds valuation of suit property and court fees
paid
thereupon
to
be
arbitrary
or
demonstratively undervalued, of which there
is no finding recorded in the impugned order.

34. The question No.B therefore stands
answered in favour of revisionist-plaintiff.

35. Question-C: With regard to
aforesaid question, although learned counsel
for opposite parties has submitted that the
prayer made in the plaint is in the nature of
seeking challenge to will dated 11.06.2004
executed by Sri Govind Ram Suri, but no
specific prayer has been made for its
cancellation. It is also submitted that there is
no
specific
prayer
either
regarding
cancellation of the aforesaid will-deed or
even any declaration with regard thereto but
the revisionist-plaintiff would be required to
pay ad valorem court fees thereupon.

36. With regard to aforesaid question, it
is evident that the impugned order has not
dealt with any such contention nor does it
appear to have been raised before it. A
perusal of plaint will also indicate that there is
no prayer made therein either for cancellation
of any will-deed or for declaration of it to be
void. As such, the aforesaid question may not
require any adjudication by this Court
particularly in view of the fact that the said
question has already been answered by
Hon'ble the Supreme Court in the case of
Suhrid Singh versus Randhir Singh and
others reported in (2010)12 SCC 112 in the
following terms:

"7.Where the executant of a deed
wants it to be annulled, he has to seek
cancellation of the deed. But if a non-
2 All. Aslam Qadeer Vs. Nayyar Jahan Raza & Ors.
27
executant seeks annulment of a deed, he has
to seek a declaration that the deed is invalid,
or non est, or illegal or that it is not binding
on him. The difference between a prayer for
cancellation and declaration in regard to a
deed of transfer/conveyance, can be brought
out by the following illustration relating to A
and B, two brothers. A executes a sale deed in
favour of C. Subsequently A wants to avoid
the sale. A has to sue for cancellation of the
deed. On the other hand, if B, who is not the
executant of the deed, wants to avoid it, he
has to sue for a declaration that the deed
executed by A is invalid/void and non
est/illegal and he is not bound by it. In
essence both may be suing to have the deed
set aside or declared as non-binding. But the
form is different and court fee is also
different. If A, the executant of the deed, seeks
cancellation of the deed, he has to pay ad
valorem court fee on the consideration stated
in the sale deed. If B, who is a non-executant,
is in possession and sues for a declaration
that the deed is null or void and does not bind
him or his share, he has to merely pay a fixed
court fee of Rs. 19.50 under Article 17(iii) of
the Second Schedule of the Act. But if B, a
non-executant, is not in possession, and he
seeks not only a declaration that the sale
deed is invalid, but also the consequential
relief of possession, he has to pay an ad
valorem court fee as provided under Section
7(iv)(c) of the Act.

8.Section 7(iv)(c) provides that in
suits
for
a
declaratory
decree
with
consequential relief, the court fee shall be
computed according to the amount at which
the relief sought is valued in the plaint. The
proviso thereto makes it clear that where the
suit for declaratory decree with consequential
relief is with reference to any property, such
valuation shall not be less than the value of
the property calculated in the manner
provided for by clause (v) of Section 7."

37. The Question-C as such stands
answered accordingly.

38. In view of aforesaid discussion,
Questions No.A and B are answered in
favour of revisionist. Resultantly, the
revision succeeds and is allowed. Parties to
bear their own costs.
----------
(2023) 2 ILRA 27
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Civil Revision No. 115 of 2022

Aslam Qadeer ...Revisionist
Versus
Nayyar Jahan Raza & Ors.
 ...Opposite Parties

Counsel for the Revisionist:
Sri Kumar Anish

Counsel for the Opposite Parties:

A. Civil Law -Code of Civil Procedure,
1908-Section 151 - Order 22 - Rule 4Substitution
application
filed
for
substituting the legal heirs of respondent
no.1-application has to be made within
the time prescribed in law for substituting
the heirs of defendant and suit would
abate only when the said application has
not been filed within the time prescribed.
(Para 1 to 27)

The revision is dismissed. (E-6)
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Kumar Anish, learned
counsel for the revisionist.