Punjab-Haryana High Court
Smt.Santosh And Others vs Des Raj And Others on 17 May, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
Civil Revision No.6693 of 2009(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.6693 of 2009(O&M)
Date of Decision: May 17, 2011
Smt.Santosh and others
.....Petitioners
v.
Des Raj and others
.....Respondents
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Sushil Bhardwaj, Advocate
for the petitioners.
Mr.Parmod Pomer, Advocate for
Mr.Munish Mittal, Advocate
for the respondents.
.....
RAM CHAND GUPTA, J.
The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 9.9.2009, passed by learned Civil Judge, Junior Division, Karnal, vide which application filed by petitioners-defendants for rejection of the plaint under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure (for short `the Code') was dismissed.
I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.
Facts relevant for the decision of present revision petition are that a suit for declaration with consequential relief of permanent injunction has been filed by respondent-Kala Wati, now represented by her legal representatives, i.e., respondents no.1 to 6, to the effect that Shri Basanta, father of plaintiff, defendants no.1, 8 and 11, grandfather of defendants no.2 Civil Revision No.6693 of 2009(O&M) -2- to 4 and maternal grand father of defendants no.9 and 10 was owner of agricultural land, duly described in para no.3 of the plaint and after the death of Shri Basanta, plaintiff, defendants no.1 and 8 to 11 inherited the said land. Thereafter, defendant no.1 and pro forma defendant no.11 became owners in equal shares of the land on the basis of civil Court judgment and decree dated 17.10.1979, passed in civil Suit No.571/89 in terms of the family settlement arrived at between all the legal representatives of deceased Basanta. Thereafter defendant no.1 transferred the land in dispute in favour of his sons, i.e., defendants no.2 to 4 by virtue of Relinquishment Deed No.12429 dated 31.1.2007. Subsequently, defendants no.2 to 4 sold the land measuring 13 kanals 2 marlas in favour of defendant no.5; land measuring 12 kanals 8 marlas in favour of defendant no.7, vide different registered sale deeds dated 15.5.2008; and land measuring 13 kanals 2 marlas in favour of defendant no.6 vide sale deed dated 16.5.2008. Plaintiff has sought to get the said Relinquishment Deed and sale deeds declared illegal, null and void on the plea that the same are result of fraud being played by defendants no.1 to 4 in connivance with defendants no.5 to 7 and hence, the same are not binding upon the rights of plaintiff and pro forma defendants no.8 to 10.
As is clear from the aforementioned facts of the case, respondent-plaintiff has sought only relief of declaration and consequential relief of permanent injunction for getting the Relinquishment deed and sale deeds declared illegal and void. Respondents-plaintiff is not a party to the said deeds. She has also not claimed relief of possession.
Law on the point of Court fee has been settled by Hon'ble Apex Court in a recent judgment in case of Suhrid Singh @ Sardool Singh v. Civil Revision No.6693 of 2009(O&M) -3- Randhir Singh and others, 2010(2) RCR (Civil) 564: 2010(2) RAJ 436:
2010(2) Civil Court Cases 510 (SC). Relevant paragraph of the same reads as under:-
"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-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 nonest/ 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 Second Schedule of the Act. But if 'B', a nonexecutant, is not in possession, and he seeks Civil Revision No.6693 of 2009(O&M) -4- 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. 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."
Hence, in view of the legal proposition held in the aforementioned authority, as in the present case respondents-plaintiff has sought to get the Relinquishment deed and sale deeds declared null and void, to which plaintiff is not a party and has not claimed relief of possession, she has to pay fixed court fee, as per Article 17(iii) of the Second Schedule of the Court Fee Act, 1870.
Hence, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.
Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it Civil Revision No.6693 of 2009(O&M) -5- is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby.
Hence, the present revision petition is, hereby, dismissed being devoid of any merit.
17.5.2011 (Ram Chand Gupta) meenu Judge