Punjab-Haryana High Court
Amar Chand And Others vs Raj Gupta And Others on 13 December, 2011
Civil Revision No. 7772 of 2009 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No. 7772 of 2009 (O&M)
Date of Decision: December 13th, 2011
Amar Chand and others .... Petitioners
Versus
Raj Gupta and others
.... Respondents
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. Shiv Kumar, Advocate,
for the petitioners.
Mr. Ram Bilas Gupta, Advocate,
for the respondents.
VIJENDER SINGH MALIK, J.
Amar Chand and others, legal representatives of Mam Raj, plaintiff alongwith Chatra have brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 25.11.2009 passed by learned Civil Judge (Junior Division), Faridabad, whereby the application filed by respondent No.1 under Order 7 Rule 11 CPC has been allowed and the petitioners have been directed to pay ad valorem court fee.
Mam Raj and Chatra filed a suit for declaration to the effect that the general power of attorney dated 20.1.1987 and the sale deed dated 6.7.2005 in respect of the suit property are absolutely wrong, illegal, null and void, sham and bogus documents and are not binding on the Civil Revision No. 7772 of 2009 2 ..
plaintiffs in any manner and are liable to be cancelled. They have also prayed for a decree for permanent injunction restraining the respondents from interfering in their peaceful possession over the suit property.
In the said suit, respondent No.1 filed an application under Order 7 Rule 11 CPC seeking direction to the plaintiffs to make good the deficiency in the court fee, claiming that they are liable to pay ad valorem court fee on the sale consideration.
The application was opposed by the plaintiffs on the averments that they had not executed any sale deed in favour of respondent No.1. They had claimed the sale deed to be bogus and fabricated document.
Hearing learned counsel for the parties, learned trial court has allowed the application and holding that the plaintiffs were liable to pay court fee on a sum of Rs.6,04,000/-, the consideration of the sale deed dated 6.7.2005, granted one month's time to the plaintiffs to make good the deficiency in the court fee on the plaint.
I have heard Mr. Shiv Kumar, learned counsel for the petitioners and Mr. Ram Bilas Gupta, learned counsel for the respondents. I have gone through the record carefully.
Learned counsel for the petitioners has submitted that the petitioners are not seeking possession of the suit property. According to him, they have challenged the power of attorney executed in the year 1987 and the sale deed dated 6.7.2005 executed in pursuance of the same on the ground of fraud. According to him, fraud has been committed on the plaintiffs and they are neither seeking cancellation of the sale deed nor seeking possession over the suit property and so, the decision of a Division Bench of this court dated 15.7.2011 in Civil Civil Revision No. 7772 of 2009 3 ..
Revision No. 4753 of 2005 titled Tarsem Singh and others Vs. Vinod Kumar and others does not apply to the facts of this case. It is further submitted that it also does not lay down law under which the plaintiffs of this suit would be liable to pay ad valorem court fee on the sale consideration. In this regard, he has cited before me a decision of this court in Shalimar Estate Vs. Davinder Kumar, 2001 (1) R.C.R. (Civil) 500, where the plaintiff did not ask for possession as a consequential relief and it was held that simple court fee for declaration and injunction was legally payable on the plaint of that suit.
Learned counsel for the respondents, on the other hand, has submitted that the plaintiffs themselves had been executant of the sale deed and they were seeking cancellation of the sale deed. According to him, if the case of the plaintiff is for cancellation of the sale deed and he is executant of the same, he is liable to pay ad valorem court fee irrespective of the fact that he has sought consequential relief of possession or not.
It is true that the plaintiffs have not sought the relief of possession in this suit. However, it is a fact that they have not merely sought the relief of declaration but have sought cancellation of the sale deed. As the sale deed has been executed by the attorney of the plaintiffs, the plaintiffs would themselves be treated as executants of the sale deed. Their case cannot fall within the category of non-executant plaintiffs as as been classified in the following paragraph in Tarsem Singh's case (supra) :
ii). Buf if a non-executant seeks annulment of deed i.e., when he is not party to the document, he is to seek a Civil Revision No. 7772 of 2009 4 ..
declaration that the deed is invalid, non-est, illegal or that it is not binding upon him. In that eventuality, he is to pay the fixed Court fee as per Article 17(iii) of the Second Schedule of the Act."
The decision of Division Bench of this court dated 15.7.2011 in Tarsem Singh's case (supra) is based on the decision of Hon`ble Supreme Court of India in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors., AIR 2010 Supreme Court 2807, where the law on the point has been laid down 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 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 Civil Revision No. 7772 of 2009 5 ..
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 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. 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."
So, the moot point to be considered in such a case is as to whether the plaintiff is executant of the document and he seeks cancellation thereof. If it is so, then he is liable to pay ad valorem court fee on the sale consideration.
For the aforesaid reasons, the case in hand does not fall within clause (ii), extracted above from the Division Bench decision of this Court in Tarsem Singh's case (supra) but it falls in the category of clause (i) of the said decision, where an executant of the document seeking annulment of the deed is held liable to pay ad valorem court fee on the Civil Revision No. 7772 of 2009 6 ..
consideration stated in the sale deed. Consequently, learned trial court has not been wrong in holding the plaintiffs liable to pay ad valorem court fee on the consideration of the sale deed sought to be cancelled. The impugned order is, consequently, upheld and the revision petition is dismissed.
(VIJENDER SINGH MALIK) JUDGE December 13th, 2011 som