P L D 1969 Dacca 357 (PLP)

ABDUL MOUDUD, J.‑In this case Rule was issued calling upon the opposite‑parties to show cause why the order made by the Subordinate Judge, Bogra, on 31‑5‑67 in O. C. Suit No. 22 of 1966 should not be set aside or such other or further order or orders passed as to this Court may seem fit and proper. The petitioner instituted the suit as a plaintiff for a declara tion that the Bainanama executed by him and opposite‑party No. 2 Abdul Khalek who is his step‑brother in favour of opposite -party No. 1 Dr. Sadeque Ali Ahmed on 4‑6‑65 and registered on 5‑6‑65 was vitiated by fraud and undue influence, inoperative for want of consideration and void and not binding against him. After the suit wag instituted the opposite‑party No. 1 entered appearance and filed his written statement denying the allega tions made in the plaint and taking the plea that the suit was not maintainable in the present form and that it was not properly stamped. Thereafter issue No. 23 was framed by the Subordinate Judge to the effect:‑ "Is the suit properly valued and the plaint duly stamped ?" This issue was heard at length by the learned Subordinate Judge and by his order dated 31‑5‑67 he has directed the plaintiff to put in ad valorem court‑fees under section 7 (iv) (c) of the Court Fees Act as the fixed court‑fees under Article 17 (iii) of Schedule 11 to the Act as had been paid was not sufficient. Mr. A. T. M. Kamrul Islam, the learned Advocate for the appellant submitted before us that the petitioner's prayer was for a declaration that the impugned bainanama was void and inoperative against the petitioner and consequently it was a suit for a mere declaration without any further consequential relief and as such the Court had no right to direct the petitioner to pay ad valorem court‑fee as the Court was not entitled to ask the petitioner to put in court‑fees for consequential relief which was not at all prayed for by the petitioner. In support of this view he cited before us the case of Daibaki Lal Basak v. Iqbal Ahmed Quarishi and another (P L D 1965 Dacca 439). It appears that the learned Sub ordinate Judge was also referred to this case. We went through the case very carefully and we find that in the reported case the suit was for a declaration that certain documents were void ab initio as they were not executed by the plaintiff but executed by somebody else and registered by false personification. Thus it is clear that in the reported case the suit was for a declaration that the documents were void on the ground of forgery and false personification. It was found by their Lordships that as the plaintiff was not a party to the documents it was actually a declaratory suit pure and simple and consequently the fixed court. fees under Article 17 (iii) of Schedule 11 to the Court Fees Act was sufficient. The facts of the present case are, however, altogether different. We went through the plaint of the suit very carefully as a whole and we find that though initially it was stated that the petitioner had put in signatures in some blank stamp papers intended to be used for some other purpose, the said stamp papers were used for preparing this impugned Bainanama without the knowledge and consent of the petitioner fraudulently and conclusively by both the opposite‑parties. In paragraph 5 of his plaint, however, the petitioner has stated as follows: "Had the petitioner any knowledge that any kabala for the sale of the disputed property or any Bainanama therefore was going to be executed, the petitioner would not have put his signature to it and would not have registered it ?". A few lines thereafter it is further stated:‑ "Taking advantage of the petitioner's ignorance and defence for his elder brother the Bainanama had been executed and registered." Such statements undoubtedly show that the petitioner was a party to the document and that it la not a case of forgery and false personification. In the Daibake Lal's case Mr. Justice Sattar while delivering his judgment independently has observed as follows: "It is only a document, which has vested ex facie a valid claim, need to be cancelled. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In determining whether in a suit cancellation has been asked for, the plaint has to be read as a whole and the Court will not confine itself merely to the form of the plaint but it must look to the substance of the relief claimed. If on consideration of the plaint, the Court comes to the conclusion that the plaintiff has asked for both declaration and cancellation or that cancellation is to be ordered having regard to the case made out in the plaint, then it must be held that payment of fixed court‑fee under Article 17 (iii) of Schedule 11 is not sufficient." Mr. Justice Sayem in the same case in separate judgment was pleased to observe: ‑ "If the plaintiff is a party to the instrument the Court refuses, as a rule, to grant such a declaratory relief, on the ground that the instrument, in such a case, need be avoided by cancellation. The plaintiff in such a case is required to pray for cancellation, by way of a consequential relief." On a careful reading of such observations of their Lordships it is clear that where the plaintiff is a party to the docu ment the provision of section 39 of the Specific Relief Act comes into operation. Section 39 of the Act reads as follows:‑ "Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instru ment, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in Its discretion, so adjudge it and it to be delivered up and cancelled. If the instrument has been registered under the Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument con tained in his books the fact of its cancellation." It is to be observed that there is a difference between a suit for cancellation of an instrument and a suit for declaration that the instrument is not binding upon the plaintiff. When the plaintiff seeks to establish a title to himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed, as the case may be, even though it be framed as a suit for a mere declaration. There is ample authority for the view that a distinction should be drawn between the case where the plaintiff is a party to the deed and the case where he is stranger to it. Where a document is to be set aside or declared null and void by a person who is a party to the deed, mere declaration would not do and cancellation of the deed is a necessary relief unless the document is void ab initio. But a person who is not the party to the deed is not bound to have it set aside or cancelled and a mere declaration that it will not affect the plaintiff's rights would be quite enough. If the plaintiff is bound to have the document set aside or declared null and void the plaint must be treated as including a prayer for consequential relief, but if it is not incumbent on the plaintiff to get rid of the document the plaint must be treated as one for a declaration pure and simple. A distinction has to be made between documents that are void and those that are voidable only. A document which is null and void ab initio need not be set aside, It may be treated as non‑exis tent. But a avoidable contract is valid until it is avoided or speci fically set aside. In case of void document a person may rely on its invalidity as against himself without suing for its cancellation, and a suit by him for declaring its invalidity is not a suit for declaration with consequential relief. But in a case of a document that is only voidable the case is otherwise as the party cannot impeach the arrangement effected by it without having it cancelled. In the instant case Mr. Kamr‑ul‑151am strenuously impressed that the Bainanama was obtained by fraud, undue influence and misrepresentation. Section 19 of the Contract Act provides:‑ "

19. When consent to an agreement is caused by coercion, . fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused." Section 17 of the Contract Act defines the word "fraud" to the effect that: "17. `Fraud' means and includes any of the following acts committed by a party to a contract or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract‑ (1) the suggestion as to a fact, or that which is not true by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent." Thus in the instant case there is no manner of doubt that the impugned Bainanama is voidable on the ground of, as alleged by the petitioner being executed under undue influence, mis representation and fraud. A suit for avoiding documents to which the plaintiff was a party on such grounds of fraud, misrepresen tation and undue influence is a suit for declaration with con sequential relief and in such view of the matter we find' that the learned Subordinate Judge was perfectly justified in directing the petitioner to put in Ad valorem Court‑fees. Mr. Kamrul Islam next urged that it was proper for the learned Subordinate Judge to hear th‑ suit on merits and at the close of hearing ho could have dismissed the suit for not having paid proper and sufficient court‑fees and in support of his view he cited before us the case of Tarachand Mondal and others v. Hazari Shaikh and another (P L D 1967 Dacca 203). We went through the case very carefully and we find that the rule of law that was enunciated in that case was in no way against the order made in the instant cage by the learned Subordinate Judge. Section 8‑B of the Court Fees Act provides for the procedure where insuffi cient court‑fee is filed on plaint or memorandum of appeal and in view of such statutory provisions the learned Subordinate Judge was quite competent to entertain into the matter or court‑fees after the appearance of the parties and framing of the necessary issue therefore and then determining it in accordance with law. In the result, the rule is discharged with costs to the opposite parties. Let the records of the case be sent down at once for expeditious disposal of the suit. BAQUER, J.‑‑I agree. Rule discharged.