# Kaniz Fatima Plaintiff/ v. Imran Khan Defendant/

- **Citation:** (2024) 11 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-07
- **Case number:** First Appeal From Order No. 147 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaniz-fatima-plaintiff-v-imran-khan-defendant-50990
- **Pages:** 6

## Headnote

(A) Civil Law - Payment of Court Fees -
Court Fees Act, 1870 - Sections 6-A -
Appeal, Section 7(iv-A) - For cancellation
or
adjudging
void
instruments
and
decrees - Residuary Article - Ad-valorem
Fees - Defendant has a statutory right to
raise all objections regarding valuation
and deficiency in court fees - suit seeking
to declare a gift deed null, void, and
forged falls under Section 7(iv-A) of the
Court
Fees
Act
and
not
under the
residuary Article 17(iii) - Objections to
court fees raised by a defendant are
permissible under Section 6(4) of the Act.
(Para - 12,15,18)

(B) Interpretation of Statute - Distinction
between Article 17(iii) and Section 7(iv-A)
- Section 7(iv-A) - applies to cases
involving adjudging instruments void -
Article 17(iii) - applies to declaratory relief
without
consequential
relief.
(Para
-
8,9,10,12)

Appellant filed a suit against her son - alleging
that under the guise of executing a power of
attorney - a fraudulent gift deed was registered
- sought a declaration that deed was null, void,
and forged - no consequential relief was claimed
- suit has been correctly valued - Plaintiff has
not deposited ad-valorem Court fees on market
value of property - trial court directed appellant
to pay ad-valorem court fees under Section 7(ivA) of Court Fees Act - hence present
appeal.(Para 1-4 )

HELD: - Court upheld the trial court's direction
to pay ad-valorem fees under Section 7(iv-A),
affirming that objections to court fees by the
defendant are permissible under the Court Fees
Act. (Para -19,20)

Appeal dismissed. (E-7)
List of Cases cited:

## Text

11 All. Kaniz Fatima Vs. Imran Khan
155
(2024) 11 ILRA 155
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.11.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal From Order No. 147 of 2024

Kaniz Fatima ...Plaintiff/Appellant
Versus
Imran Khan ...Defendant/Respondent

Counsel for the Appellant:
Sri Pranab Kumar Ganguli

Counsel for the Respondent:
Sri Sheikh Moazzam Inam

(A) Civil Law - Payment of Court Fees -
Court Fees Act, 1870 - Sections 6-A -
Appeal, Section 7(iv-A) - For cancellation
or
adjudging
void
instruments
and
decrees - Residuary Article - Ad-valorem
Fees - Defendant has a statutory right to
raise all objections regarding valuation
and deficiency in court fees - suit seeking
to declare a gift deed null, void, and
forged falls under Section 7(iv-A) of the
Court
Fees
Act
and
not
under the
residuary Article 17(iii) - Objections to
court fees raised by a defendant are
permissible under Section 6(4) of the Act.
(Para - 12,15,18)

(B) Interpretation of Statute - Distinction
between Article 17(iii) and Section 7(iv-A)
- Section 7(iv-A) - applies to cases
involving adjudging instruments void -
Article 17(iii) - applies to declaratory relief
without
consequential
relief.
(Para
-
8,9,10,12)

Appellant filed a suit against her son - alleging
that under the guise of executing a power of
attorney - a fraudulent gift deed was registered
- sought a declaration that deed was null, void,
and forged - no consequential relief was claimed
- suit has been correctly valued - Plaintiff has
not deposited ad-valorem Court fees on market
value of property - trial court directed appellant
to pay ad-valorem court fees under Section 7(ivA) of Court Fees Act - hence present
appeal.(Para 1-4 )

HELD: - Court upheld the trial court's direction
to pay ad-valorem fees under Section 7(iv-A),
affirming that objections to court fees by the
defendant are permissible under the Court Fees
Act. (Para -19,20)

Appeal dismissed. (E-7)
List of Cases cited:
1. Ratnavaramaraja Vs Vimla, AIR 1961 SC 1299
2. Suhrid Singh @ Sardool Singh Vs Randhir
Singh & ors., (2010) 12 SCC 12
3. Shailendra Bharadwaj & ors. Vs Chandra Pal
& anr., (2013) 1 SCC 57
4. Agra Diocesan Trust Association Vs Anil David
& ors., AIR 2020 SC 1372

(Delivered by Hon'ble Kshitij Shailendra, J.)

The Proceedings:
Appeal under section 6-A of the Courts
Fees Act, 1870

1. Heard Shri P.K. Ganguli, learned
counsel for the plaintiff-appellant and Shri
Sheikh Moazzam Inam, learned counsel for
the sole-respondent.

2. The instant appeal under Section 6A of the Court Fees Act, 1870 (hereinafter
referred to as 'the Act of 1870') at the
instance of plaintiff of Original Suit No.576
of 2021 (Kaniz Fatima v. Imran Khan)
questions correctness and legality of the
order dated 13.12.2023 whereby the
learned Civil Judge, (Senior Division),
Gorakhpur has decided the issue No.2
holding that though the suit has been
156 INDIAN LAW REPORTS ALLAHABAD SERIES
correctly valued, the plaintiff has not
deposited ad-valorem Court fees on market
value of the property and, therefore, she has
been called upon to deposit the ad-valorem
Court fees.

Submissions of the appellant:

3. Challenging the order impugned,
Shri Ganguli submits that the defendantrespondent is son of the plaintiff-appellant
and he committed a fraud in the manner
that under the garb of getting executed a
power of attorney from the appellant, he
got executed and registered a gift deed
dated 07.04.2021 and the appellant, having
come to know about the fraud, instituted
the suit in question claiming a decree for
declaration to the effect that the gift deed
be declared as null, void, forged and
fabricated having no effect on the rights of
the plaintiff and consequential information
in this regard be sent to the Sub-Registrar's
office.

4. Argument is that such a relief
claimed falls under Article 17 (iii) of
Schedule II of the Act of 1870, as
applicable in the State of Uttar Pradesh,
inasmuch as, the appellant had not claimed
any consequential relief and, therefore,
fixed amount of Court fees deposited by
her was sufficient. He further submits that
the court below has wrongly invoked
Section 7(iv-A) of the Act of 1870 which
applies
only
for
cancellation of
an
instrument, which is not the situation here.
Shri Ganguli has further urged that the
defendant has no right to raise any
objection in the matter of Court fees and, in
this regard, reliance has been placed upon
judgment of Supreme Court in the case of
Ratnavaramaraja v. Vimla, AIR 1961
SC 1299.

Submissions of the respondent:

5. Per contra, learned counsel for the
respondent submits that since the plaintiff
has claimed relief for adjudging the
instrument of gift as null and void, the
Court fees would be payable as per Section
7(iv-A) of the Act of 1870 and residuary
Article 17(iii) of Schedule II would not
apply. He, therefore, supports the order
impugned.

Analysis of rival contentions:

6. Having heard learned counsel for
the parties, the Court finds that the trial
court has passed the order impugned after
taking into consideration the following
Authorities:-

(i). Suhrid Singh @ Sardool
Singh v. Randhir Singh & others, (2010)
12 SCC 12;

(ii). Shailendra Bharadwaj &
others v. Chandra Pal & another, (2013)
1 SCC 579;

(iii).
Agra
Diocesan
Trust
Association v. Anil David and others,
AIR 2020 SC 1372;

7. Although the judgment of Suhrid
Singh @ Sardool Singh (supra) is not
applicable in the State of Uttar Pradesh as
the said case had arisen out of State of
Punjab, where different Rules of Court fees
exist, the Supreme Court in the case of
Shailendra Bharadwaj & others (supra),
has extensively dealt with the provisions of
Court Fees Act, 1870 in a case where
instrument is sought to be adjudged as null
and void and has clearly held that in such
situation,
Section
7(iv-A)
would
be
applicable. The judgment of Shailendra
Bharadwaj & others (supra) has further
11 All. Kaniz Fatima Vs. Imran Khan
157
been relied in Agra Diocesan Trust
Association (supra).

8. Now dealing with the argument of
Shri Ganguli that residuary Article 17(iii)
would apply, it is first necessary to refer the
said Article which reads as under:-

"17(iii) To obtain a declaratory
decree where no consequential relief is
prayed in any suit, not otherwise provided
for by this Act."

9. At the same time, Section 7(iv-A) of
the Act of 1870 needs reproduction as
under:-

"(iv-A)
For
cancellation
or
adjudging void instruments and decrees. In
suit for or involving cancellation of or
adjudging void or voidable a decree for
money or other property having a market
value, or an instrument securing money or
other property having such value:

(1) where the plaintiff or his
predecessor-in-title was a party to the
decree or the instrument, according to the
value of the subject-matter, and

(2) where he or his predecessorin-title was not a party to the decree or
instrument, according to one-fifth of the
value of the subject matter, and such value
shall be deemed to be-

if the whole decree or instrument
is involved in the suit, the amount for
which or value of the property in respect of
which the decree was passed or the
instrument executed, and if only a party of
the decree or instrument is involved in the
suit, the amount or value of the property to
which such part relates.

Explanation - The value of the
property for the purposes of this subsection 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."

10. A perusal of Article 17 (iii) of
Schedule II shows that it applies in a case
where a declaratory decree is sought to be
obtained
without
claiming
any
consequential relief, however, the language
used in the article is clear and unambiguous
to the effect that such a suit is "not
otherwise provided for by this Act".
Meaning thereby that if a suit is otherwise
covered by any other provision in the Act,
1870, the aforesaid residuary clause would
not apply.

11. In the instant case, relief claimed is
for adjudging the gift deed as null, void as
well as forged and fabricated. In this view
of the matter it is not a simplicitor suit for
declaration of rights and it clearly falls
under section 7(iv-A) of the Act which is
specifically otherwise provided in the Act.

12. In Ajay Tiwari v. Hriday Ram
Tiwari and others, 2006 (4) AWC 3546
(DB), a Division Bench of this Court dealt
with the conflict in between Article 17(iii)
of Schedule II and Section 7(iv-A) of the
Act of 1870 and held that in a suit for
declaring a sale deed as null and void, the
Court fees would be payable as per Section
7(iv-A) of the Act and not as per Article
17(iii).

13. Now testing the submission of Shri
Ganguli as regards right of a defendant to
raise objection in Court fees matter, this
Court deems it appropriate to refer Sections
6(3) and 6(4) of the Act of 1870 which read
as under:-

"6 (3). If a question of deficiency
in court-fee in respect of any plaint or
158 INDIAN LAW REPORTS ALLAHABAD SERIES
memorandum of appeal is raised by an
officer mentioned in Section 24-A the
Court shall, before proceeding further with
the suit or appeal, record a finding whether
the court-fee paid is sufficient or not. If the
Court finds that the court-fee paid is
insufficient, it shall call upon the plaintiff
or the appellant, as the case may be, to
make good the deficiency within such time
as it may fix, and in case of default shall
reject the plaint or memorandum of appeal:

6(4). Whenever a question of the
proper amount of court-fee payable is
raised otherwise than under sub-section (3),
the Court shall decide such question before
proceeding with any other issue."

14. The aforesaid provisions clearly
provide adjudication of objection raised in
relation to sufficiency of Court fees. Such
objection can be raised by two category of
persons; one, by the officers mentioned
under Section 24-A of the Act and the
other, by the persons other than those
mentioned in the said provision. For a
ready reference, Section 24-A of the Act is
reproduced as under:-

"24-A. Control of court-fee and
Stamp Commissioner.-(1) The levy of
fees under this Act shall be under the
general control and superintendence of the
Chief Controlling Revenue Authority, who
may be assisted in their supervision thereof
by the Commissioner of Stamps and by as
many Assistant Commissioners of Stamps,
Deputy Commissioners of Stamps and
Assistant Commissioners of Stamps as the
State Government may appoint in this
behalf of by any other subordinate agency
appointed for the purpose.

(2). The officers and the agency
referred to in sub-section (1) shall have
access to all records, and shall be furnished
with all such information as may be
required by them for the performance of
their duties under this Act."

15. In the instant case, the defendantrespondent
falls
under
the
category
described under Section 6(4) of the Act of
1870 and, therefore, he certainly had a
statutory right to raise objections and the
Court was bound to decide the same. In this
regard the Division Bench in paragraph 13
of Ajay Tiwari (supra) has held as under:-

"13. The learned Counsel for the
plaintiff/appellant faintly argued that it is
not open for the defendants/respondents to
take any objection with regard to the
inadequacy or deficiency in payment of
court fees. The above submission has no
merits as the question of deficiency or
payment of proper amount of court fees can
also be raised otherwise than by the officers
of the State or the Revenue. Section 6(4) of
the Act stipulates that whenever a question
of proper amount of court fees payable is
raised otherwise than under Sub-section (3)
of Section 6, i.e., by person other than the
officers mentioned in Section 24-A of the
Act, the Court shall decide such question
before proceedings with any other issue.
Thus, the Court is empowered to decide the
question of payment of proper amount of
court fees even if it has not been raised by
the officers of the State or Revenue.
Therefore, the submission has no force and
is not acceptable more particularly as the
same was not even raised in the court
below. "

16. As far as reliance placed by
learned counsel for the appellant on
Ratnavaramaraja (supra), it is observed
that the Apex Court, in that case, was
dealing with maintainability of revision
before the High Court at the instance of a
defendant
who
was
aggrieved
by
11 All. Kaniz Fatima Vs. Imran Khan
159
determination
of
an
issue
regarding
valuation of property and Court fees. The
Supreme Court held that whether proper
Court fees is paid on a plaint is primarily a
question between the plaintiff and the State
and, even if, the defendant may believe and
even honestly that proper Court fees has
not been paid by the plaintiff, he has still
no right to move the superior Court by way
of appeal or revision and, therefore, it was
held that High Court had grievously erred
in entertaining the question of Court fees at
the instance of defendants in revisionapplication filed under Section 115 CPC.

17. The instant case has not been
filed by a defendant but it is a statutory
appeal preferred by the plaintiff when the
order has been passed against her.
Therefore, with due respect to the
decision
of
Apex
Court
in
Ratnavaranaraja (supra), the same has
no application in the fact situation
involved in the present case. Further, the
ratio laid down in Ratnavaranaraja
(supra), was re-considered by the Apex
Court in Shamsher Singh v. Rajinder
Prasad and others, AIR 1973 SC 2384
and considering both the decisions, the
Division Bench of this Court, in Ram
Krishna Dhandhania and another v.
Civil Judge (Senior Division), Kanpur
Nagar and others, 2005 (3) AWC
2751(DB) has held in paragraph 13 as
under:-

"13. In Sri Rathnavarmaraja
v. Smt. Vimla, AIR 1961 SC 1299, the
Hon'ble Supreme Court held that whether
proper court-fee has been paid or not, is
an issue between the plaintiff and the
State and that the defendant has no right
to question it in any manner. The said
judgment
of
the
Apex
Court
was
reconsidered and approved in Shamsher
Singh v. Rajinder Prasad and others,
AIR 1973 SC 2384, observing as under :-
-

"The ratio of that decision was
that no revision on a question of court fee
lay where no question of jurisdiction was
involved."

18. The Division Bench, in the same
judgment of Ram Krishna Dhandhania
and another (supra), as regards right of
a defendant to raise objections on
valuation and deficiency in court fees,
held in 'paragraph 19' as under:-

"19. Thus, in view of the above,
the legal position can be summarized that
the defendant has a right to raise all
objections
on
the
valuation
and
deficiency of the court-fees. The matter is
to be adjudicated upon and decided by
the Court under Section 12 of the Act,
1870 and the decision so taken by the
trial Court shall be final. The defendant
cannot raise the grievance against the
said
decision
unless
the
valuation
suggested by him affects the jurisdiction
of the Court. However, the appellate or
revisional Court always can test the issue
suo motu and make the deficiency good
as the purpose of the Act is not only
fixing the pecuniary jurisdiction of the
Court but also creating revenue for the
State."

Conclusion:

19. In view of the above discussion on
facts and law, this Court does not find any
error in the order impugned.

20.
The
appeal
is,
accordingly,
dismissed. Interim order, granted earlier,
stands vacated.
----------
160 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 11 ILRA 160
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal From Order No. 1903 of 2023

Smt. Omika Devi ...Appellant
Versus
Indian Bank (Allahabad Bank) Branch &
Ors. ...Respondents

Counsel for the Appellant:
Sri H.K. Asthana, Sri Harish Kumar Tripathi

Counsel for the Respondents:
Sri Habib Ahmad

(A) Civil Law - Partition and Injunction -
Civil Procedure Code, 1908 - Order XLIII
Rule 1(r) - Specific Relief Act, 1963 -
Section
41(h);
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 - Sections 13(2), 13(4) & 17 -
Alternative
remedies
under
specific
statutes - Civil suits are barred when
alternative
efficacious
remedies
are
available under the SARFAESI Act
-
Partition suit - Secured assets - Security
interest - Injunction under U.P. CPC
Amendment, SARFAESI Act - Grant of
injunction is not, otherwise, permissible in
view of U.P. amendment made under
Order XXXIX Rule 2 C.P.C. as per which an
injunction which cannot be granted under
the Specific Relief Act, 1963, the same
cannot be granted under C.P.C. - An
injunction cannot be granted if an equally
efficacious legal remedy is available, as
per Section 41(h) of the Specific Relief
Act, 1963 - Any order for injunction
granted
in
contravention
of
these
provisions shall be void. (Paras 3 -12)

Appellant, claiming a 1/3rd share in immovable
property
-
mortgaged
by
co-sharers
(respondents) - sought an injunction against the
bank - from auctioning the property without
partition - civil court rejected application. (Paras
3-5)

HELD: - Appeal lacks merit as statutory
remedies are available under the SARFAESI Act.
Application for injunction was correctly rejected.
Dismissal does not affect the appellant's right to
pursue other legal remedies. Appellant has a
remedy of approaching the Debts Recovery
Tribunal independently or by seeking her
implement
in
the
pending
Securitisation
Application. (Paras 9 - 12)

Appeal dismissed. (E-7)
List of Cases cited:
1. Jagdish Singh Vs Heeralal & ors., (2014) 1
SCC 479
2. U.B.O.I. Vs Satyavati Tondon & ors., (2010) 8
SCC 110
3. Sree Anandhakumar Mills Ltd. Vs I.O.B.& ors.,
2019 (1) Supreme 514

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri H.K. Asthana, learned
counsel for the plaintiff-appellant and Shri
Habib Ahmad, learned counsel for the
respondent No.1-Bank.

2. Counter and rejoinder affidavits in
between the appellant and respondent No.1
have been exchanged. In view of the order
proposed to be passed, it is not necessary to
issue notice to the remaining respondents,
particularly when the matter is running in
the list of fresh cases for the last one year.

3. The instant appeal under Order
XLIII Rule 1(r) of Civil Procedure Code,
1908 assails the validity of order dated
19.10.2023 whereby the learned Civil
Judge, (Senior Division), Gorakhpur has