Orissa High Court
Davinder Kaur Flora And Another vs Debaraj Bidhar ….. Opp. Party on 20 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 399 of 2021
[An application under Article 227 of the Constitution of
India]
Davinder Kaur Flora and another .... Petitioners
-Versus-
Debaraj Bidhar ..... Opp. Party
Advocate(s) appeared in this case:
For the Petitioners: Mr. Banshidhar Baug, Sr. Advocate
with M/s. M.R. Baug, R.R. Baug
R.R. Jethy & G.R. Sahoo,
Advocates.
For Opp.Party : None
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
20 August, 2025
SASHIKANTA MISHRA, J.
The petitioners of the present application, who are
defendant Nos.2 and 3 in C.S. No. 87 of 2021 pending in
the Court of learned Civil Judge (Sr. Division),
Bhubaneswar, question the correctness of order dated
Page 1 of 13
03.08.2021 passed by the said Court in rejecting the
application filed by them for rejection of the plaint under
Order VII Rule, 11(b) and (c) of CPC.
2. The facts of the case are that the sole
opposite party filed the aforementioned suit seeking the
following relief:
“(a) let, this Hon’ble Court be pleased to pass a
decree declaring the unilateral cancellation of
General Power of Attorney (GPA) dtd.06.08.2014
by virtue of Regd. Deed of Cancellation dtd.01
09 2020 pertaining to the suit premises after
creating interest by the Plaintiff dtd. 07.02.2015
is illegal, invalid, inoperative and not binding on
the Plaintiff thereon vide Regd. Agreement for
Sale.
(b) let, a decree of permanent injunction be
passed restraining the Defendants jointly
and/or severally to create any third party
interest in respect of the suit premises during
subsisting of Regd. Agreement for Sale dtd.
07.02.2015.
(c) let the Defendant No-1 be directed to obtain
permission within a specific time from the
competent authority for transfer of suit premises
on receipt of balance consideration amount in
favour of the Plaintiff in pursuant to Regd.
Agreement dtd.07.02.2015.
(d) that, during pendency of the suit if it is found
that the Defendants jointly and/or severally
caused any material damage to the suit
premises that too during subsisting of Regd.
Agreement for Sale dtd. 07.02.2015 the
damaged caused be regularized at the cost of
the Defendants by way of mandatory direction.
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(e) let, the cost of the suit be decreed in favour of
the Plaintiff, AND
(f) let, any other relief (s) to which the Plaintiff is
entitled to in view of the facts and in the
discretion of this Hon’ble Court may and also be
granted”
3. The defendant Nos. 2 and 3, after
appearance, filed an application under Order VII Rule 11
CPC on 08.07.2021 for rejection of the plaint on the
ground that the plaintiff had undervalued the suit and
written the plaint on insufficient Stamp paper/Court fees.
The plaintiff filed his objection on 19.07.2021. The Court
below, after hearing the parties rejected the application
vide order dated 03.08.2021, which is impugned.
4. Heard Sri Banshidhar Baug, learned Senior
counsel with Mr. G.R. Sahoo, learned counsel for the
petitioners.
Despite valid service of notice, the opposite
party did not appear.
5. Sri Baug would argue that if the plaint
averments are considered in their entirety, it would be
evident that the plaintiff, in garb of seeking the relief of
Page 3 of 13
mandatory injunction under paragraph-13(c) of the plainthas, in fact, sought for a decree of specific performance of
contract. As such, the relief is governed under Section 7(x)
of the Court Fees Act with the plaintiff being liable to pay
ad-valorem Court fees on the agreement valuation of the
suit land. The valuation of the suit land, as per the
registered agreement for sale dated 07.02.2015, is
Rs.8,00,00,000/- and as such, Court fee on such amount
is to be paid but by clever drafting, the plaintiff has
valued the suit for declaratory relief and for injunction,
which is grossly undervalued. Under such circumstances,
the plaint ought to be rejected as per Order VII Rule 11 of
CPC. Sri Baug has relied upon several judgments in
support of his contentions, which would be discussed
hereinafter.
6. Before adverting to the facts of the case, this
Court would like to keep in perspective the position of law
relating to valuation of the suit and payment of Court
fees. It is well settled that valuation in a suit for
declaration with consequential relief as furnished by the
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plaintiff is ordinarily to be accepted. It is only in caseswhere 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 revise the same. The judgment of the
Supreme Court in the case of Tara Devi v. Sri Thakur
Radha Krishna Maharaj1 can be referred to in this
regard. It is also well settled that the averments of the
plaint are to be read in its entirety to form an opinion as
regards the actual relief sought for by the plaintiff for the
purpose of valuation. Reference may be had in this regard
to the judgment of the Supreme Court in the case of
Sopan Sukhdeo Sable and others vs. Assistant Charity
Commissioner and others.2
7. Viewed on the anvil of the proposition of law
as referred above, it is seen that the case of the plaintiff is
that the deceased defendant No.1 had executed and
registered a general power of attorney in his favour on
1
(1987) 4 SCC 69: AIR, 1987 SC 2085
2
(2004) 3 SCC 137
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06.08.2014. Again, on 07.02.2015, said defendant enteredinto an agreement for sale with the plaintiff pertaining to
the suit premises which was also registered. The plaintiff
claims to have paid advance out of the total consideration
amount to the defendant No.1. The onus was on
defendant No.1 to obtain permission from the competent
authority for transfer of the suit land in favour of the
plaintiff in terms of the agreement. While the matter stood
thus, the defendants unilaterally cancelled the registered
power of attorney on 01.09.2020. Basically, on such facts,
the plaintiff has filed the suit claiming the aforementioned
relief, the relevant averments of the plaint being as
reproduced below.
“5. That it is humbly submitted here that, aftr
vivid discussion with full and final settlement
the Defendant No. 1 entered with an Agreement
for Sale on dtd. 07.02.2015 with the Plaintiff
pertaining to the suit premises which was also
registered on dtd. 07.02.2015 and as a matter of
fact the Defendant No 1 was duly identified by
the Defendant No 3. Furthermore in pursuant to
the said Regd. Agreement for Sale the Plaintiff
paid handsome money to the Defendant No.1 as
advance from out of the consideration amount
and on the other hand after execution and
registration of said Agreement for Sale, the
Defendant No.1 used to receive further advance
amount out of the balance consideration amountPage 6 of 13
that too in presence of the Defendant No.2 and 3
along with others as such by the process the
Defendant No 1 has received sufficient
consideration amount but did not care to take
any steps to obtain permission for transfer of the
suit premises in favour of the Plaintiff nor also
the Plaintiff as the Attorney Holder could be able
to obtain permission form the competent
authority due to various query made by the
competent authority as the Defendant No 1 could
not fulfill and/or meet the said query as such
the Defendant No 1 adopted dilly tactic at the
behest of the Defendant No-2 and 3 with an
oblique motive to harass and defraud the
plaintiff for an unlawful gain.
6. That while the matter stood thus, the Plaintiff
has created an interest over the suit premises
because of the fact that the Regd. General Power
of Attorney did 06.08 2014 was coupled with
Reged. Agreement for Sale dtd. 07.02.2015 and
on the other hand the Defendants knowing all
such have came out successful jointly and/or
severally in canceling and/or revoking
unilaterally the said Regd. General Power of
Attorney (GPA) by the Defendant No.1 even
without any prior intimation and/or Notice.
Furthermore, astonishing enough the Defendant
No.1 transmitted a Notice through Advocate on
the date of revocation and/or cancellation of the
said General Power of Attorney (GPA) on dtd.
01.09 2020 which is not tenable in the eyes of
Law
7. That, it is worthwhile to mention here that, as
the Defendant No.1 did not care to perform his
part of contract nor also took any step for
alienation of the suit premises in favour of the
Plaintiff in spite of Regd. Agreement for Sale dtd.
07 02 2015 with an oblique motive for which the
Plaintiff approached from pillar to post including
the Defendants which yielded no result but the
Plaintiff being bonafide reposed confidence upon
the Defendants as because huge amount was/is
being invested by the Plaintiff pertaining to the
suit premises towards the advance
consideration amount and the Defendants jointly
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and/or severally were/are unable to refund the
received advanced consideration amount to the
Plaintiff because of financial instability
8. That it is important to mention here that. on
receipt of Notice dld.01.09.2020 transmitted by
the Defendant No.1 through Advocate in spite of
the fact that, the said Notice was received by the
Plaintiff from the Postal Authority in late and
after perusal of the same, the Plaintiff issued
Notice dated.28 09 2020 to the Defendants
through Advocate by Regd. Post with A/D and a
Reply has also been made by the Defendants
through Advocate and as a matter of fact, the
inter-se dispute between the parties being
intervened by the well-wishers, common friends
as well as the Bhadraloks, etc. for an amicable
settlement which ended in vain in view of the
step motherly attitude and unreasonable issues
raised during dialogue in spite of the fact that,
the Plaintiff was/is ready and willing to perform
his part of contract whereas, the Defendant No.1
tried to avoid to perform his part of contract with
some pretext or other that too in a dishonest
intention which is not tenable in the eyes of Law.
9. That, it is further pertinent to mention here
that, the Defendant No.1 at the behest of the
Defendant No.2 and 3 has made revocation
and/or cancellation of the Regd. General Power
of Attorney (GPA) in question with an ill intention
to extract more advance consideration amount
and it is not out of place to mention here that the
Defendant No.1 had also adopted the same
tactics of cancellation and/or revocation of the
Regd. General Power of Attorney (GPA) in past
occasion in order to collect more money under
the umbrella of old age that too giving false
information to meet urgent legal necessities
including family expenses, repayment of
personal loan, etc. and as a matter of fact, the
Plaintiff used to give advance amount even on
that score but the Defendant No.1 could not be
satisfied in needs but tried to adopt different
methods to collect more money in the guise of
advance amount and without any effort to get
permission from the competent authority forPage 8 of 13
transfer of the suit premises in favour of the
Plaintiff and therefore when the Plaintiff stopped
making further payment towards the advance
consideration amount to the Defendant No.1 as a
result the Defendant No.1 has unilaterally
cancelled and/or revoked the Regd. General
Power of Attorney (GPA) executed in favour of the
Plaintiff during subsisting of the Regd.
Agreement for Sale dtd.07 02.2015″
8. Thus, on a plain reading of the plaint
averments, it is manifest that the plaintiff, claiming to be
ready and willing to perform his part of the contract,
seeks a direction to the defendants to perform their part.
In other words, it is a suit for specific performance of
contract. True, the relief under paragraph-13(c) does not
explicitly say so but then, said relief cannot be considered
in isolation but has to be read along with the averments
in the plaint. Considering the literal implication of the
relief under paragraph-13(c), if the same is granted, it
would be a direction to defendant No.1( he having expired,
his LRs) to obtain permission from the competent
authority for transfer of the suit land on receipt of balance
consideration amount in favour of the plaintiff pursuant
to the registered agreement dated 07.02.2015. Since the
agreement itself has been referred to, obtaining
Page 9 of 13
permission from the competent authority simplicitor
would have no meaning save and except that it is to be
part of the contract agreed to be performed by the
defendant as per the agreement. In other words, it is
asking for a decree of specific performance of contract and
nothing else. Ingenuity in drafting the plaint cannot
nullify the true object and intent of the party pleading.
9. In the case of Dahiben v. Arvindbhai
Kalyanji Bhanusali3, the Supreme Court, noting that the
said case was a classic case where the plaintiffs by clever
drafting of the plaint attempted to make out an illusory
cause of action and bring the suit within the period of
limitation, held that the same is an abuse of the process
of the Court. In a somewhat similar case, the Supreme
Court in the case Atma Ram v. Charanjit Singh,4 inter
alia, held as follows:
6. xxxxxxxxxxxxxxx. The relief sought in the
plaint as it was originally presented, was for a
mandatory injunction to direct the respondent to
receive the balance sale consideration and to get3
(2020) 7 SCC 366
4
(2020) 3 SCC 311Page 10 of 13
a document of transfer effected in favour of the
petitioner.
xx xx xx
It is in that application that the trial court passed
the order dated 9-8-2003 permitting the
petitioner-plaintiff to pay the deficit court fee by
treating the prayer made as one for specific
performance. Instead of addressing the issue as
to whether the petitioner could indirectly seek
specific performance of an agreement of sale, by
couching the relief as one for mandatory
injunction and paying a fixed court fee as
payable in a suit for mandatory injunction, the
trial court, by a convoluted logic, chose to treat
the suit as one for specific performance and
permitted the petitioner to pay deficit court fee.
7. As a matter of fact, if the suit was actually
one for specific performance, the petitioner ought
to have at least valued the suit on the basis of
the sale consideration mentioned in the
agreement.
xx xx xx
10. This Court therefore, finds considerable
force in the submission of Sri Baug that the relief claimed
under paragraph-13(c) was in fact a claim for decree of
specific performance of the contract between the plaintiff
and defendant No.1. As such, the suit is required to be
valued as per the valuation of the suit property mentioned
in the agreement as per Section 7(x) of the Court Fees Act,
which is quoted below.
Page 11 of 13
“for specific performance.-(x) In suits for
specific performance-
(a) of a contract of sale-according to the amount
of the consideration;
(b) of a contract of mortgage- according to the
amount agreed to be secured;
(c) of a contract of lease- according to the
aggregate amount of the fine or premium (if any)
and of the rent agreed to be paid during the first
year of the term;
(d) of an award- according to the amount or
value of the property in dispute;”
11. Perusal of the impugned order reveals that
the Court below, apparently without taking the pain of
reading the plaint averments has held that the prayer
13(c) is a kind of mandatory injunction, which does not
depend upon the valuation of the land and that the
plaintiff has not averred anything regarding specific
performance of contract. Obviously, the Court was misled
by the relief claimed on a cursory reading without delving
deep into the matter by examining the plaint averments.
12. For the foregoing reasons therefore, the
impugned order cannot be sustained in the eye of law. It
is therefore, set aside. The Court below is directed to call
upon the plaintiff to value the suit as per the valuation of
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the suit land mentioned in the agreement dated
07.02.2015 and to pay ad-valorem Court fees accordingly
within a stipulated period, failing which the plaint shall be
rejected.
13. In the result, the CMP is allowed is terms of
the above directions.
…………………………
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 20th August, 2025/ A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Aug-2025 18:52:37
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