Punjab-Haryana High Court
Harish Chander And Ors. vs Gurbachan Singh And Ors. on 14 March, 2000
Equivalent citations: (2000)126PLR272
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This is civil revision against the order dated 2.8.1999 passed by Civil Judge, Junior Division, Ambala, whereby she directed the plaintiffs to affix Court fee on the plaint ad valorem.
2. It is a suit for declaration filed by Harish Chander etc. against Gurbachan Singh and Sardari Lal whereby they have challenged the judgment and decree dated 26.2.1995 passed by Additional Senior Sub Judge, Ambala in civil suit No. 436 of 1993 titled Gurbachan Singh v. Sardari Lal in respect of land measuring 40 Kanals situated in Rataur, Tehsil Naraingarh as detailed in the heading of the plaint as the same was collusive, based on fraud, on the basis of forged and fabricated agreement of sale dated 26.1.1991 and was suffered by Gurbachan Singh in favour of Sardari Lal collusively with a view to defeat the rights of Harish Chander etc. plaintiffs for specific performance of the agreement of sale dated 29.5.1992 liable to be set aside and also the sale deed dated 8.12.1995 executed by Sardari Lal in favour of Gurbachan Singh in pursuance of the decree for the alleged consideration of Rs. 1, 65, 000/- and that sale deed dated 8.12.1995 was a sham transaction and was not binding upon the rights of Harish Chander etc. with consequential relief of permanent injunction restraining Gurbachan Singh from alienating, mortgaging or creating any charge over the suit property in any manner what so ever.
3. Gurbachan Singh made an application to the Court that the plaint was insufficiently stamped by Harish Chander etc. and as such the same be rejected.
4. Civil Judge, Junior Division, Ambala felt that the plaintiffs were liable to pay Court fee ad valorem or the plaint. She gave them time within which to make up deficiency in Court fee payable on the plaint.
5. In my opinion, no exception can be taken to the impugned order passed by Civil Judge, Junior Division, Ambala through which the plaintiffs have been directed to pay ad valorem Court fee on the plaint taking Rs. 1,65,000/- as value for the purposes of jurisdiction and Court fee because the plaintiffs had desired the cancellation of the sale deed dated 8.12.1995 executed by Sardari Lal in favour of Gurbachan Singh in pursuance of the judgment and decree dated 26.2.1995 passed by Additional Senior Sub Judge, Ambala in civil suit No. 436 of 1993 titled Gurbachan Singh v. Sardari Lal in respect of land measuring 40 kanals thereby giving effect to agreement of sale dated 26.1.1991 alleged to have been executed by Sardari Lal in favour of Gurbachan Singh qua 40 Kanals of land as the plaintiffs are after having this sale deed to be set aside as without getting this sale deed cancelled/set aside, Harish Chander etc. Plaintiffs would not be able to ask for possession of land in pursuance of civil suit which they had filed for possession on 2.4.1993. Plaintiffs need the setting aside of that sale deed with a view to be able to ask for possession on the basis of the agreement to sell dated 29.5.1992 which they say was executed in the favour of Sardari Lal. Decks will be clear in favour of the plaintiffs for suit for possession which they had filed in Court on 2.4.1993 only if they succeed in getting judgment and decree dated 26.2.1995 passed in favour of Gurbachan Singh against Sardari Lal set aside together with the sale deed dated 8.12.1995 executed in pursuance of that judgment and decree which recognised agreement of sale dated 26.1.1991 executed by Sardari Lal in favour of Gurbachan Singh. If the plaintiffs pay ad valorem Court fee on the plaint on the valuation of the sale deed dated 8.12.1995 viz Rs. 1, 65, 000/- as entered therein, learned counsel for the petitioners submitted that it was a suit for declaration simpliciter with consequential relief. Section 7(iv)(c) of the Court Fees Act, 1870 will govern the payment of Court fee on the plaint. Section 7(iv)(c) of the Court Fees Act reads as follows:-
" Computation of fees payable in certain suits.:-
The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:-
(iv) in suits-
(c) for declaratory decree and consequential relief- To obtain a declaratory decree or order, where consequential relief is prayed, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which he values the relief sought."
6. Learned counsel for the respondents, on the other hand, submitted that the Court in deciding the question of Court fee should look into the allegations made in the plaint to find for itself what is the substantive relief that is being asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. Where the main relief is that of the cancellation of the deed, and the declaration if any is only a surplusage, the case would not be covered under Section 7(iv)(c) of the Court fees Act, because in a suit under that clause, the main relief is that of a declaration and the consequential relief is just ancillary. Section 7(iv)(c) clearly contemplates suits to obtain declaratory decree or order where consequential relief is prayed." In support of this submission, he drew my attention to Niranjan Kaur v. Nirbigan Kaur (Minor), (1982)84 P.L.R. 127 (FB). Instant is a suit where the plaintiffs have challenged the sale deed executed by Sardari Lal in favour of Gurbachan Singh on 8.12.1995 for alleged consideration of Rs. 1,65,000/- and have sought its cancellation saying that the agreement dated 26.1.1991 to which this sale deed owned its birth and the decree dated 26.2.1995 passed in civil suit No. 436 of 1993 titled Gurbachan Singh v. Sardari Lal which recognised this agreement and gave relief of specific performance to Gurbachan Singh is of no effect on their rights as the agreement to sell dated 26.1.1991 was the result of fraud and if the agreement to sell dated 26.1.1991 falls, judgment and decree dated 26.2.1995 also falls and sale deed dated 8.12.1995 also falls. It is only after the sale deed dated 8.12.1995 is cancelled that the subject matter of the suit will become available to the plaintiffs in suit for possession by way of specific performance of agreement dated 29.5.1992 filed by them in pursuance of the agreement of sale deed 29.5.1992 said to have been executed in their favour by Sardari Lal. As such, the plaintiffs are liable to pay Court fee ad valorem on the plaint. Article 1 Schedule 1 of the Court Fees Act will govern the payment of Court fees on the plaint in this case. Plaintiffs (petitioner) shall make up deficiency in Court fee on, or before 14.5.2000. Learned counsel for the petitioners submitted that in this case, the plaintiffs had not asked for possession. They had asked for possession only in suit for specific performance where they had paid Court fee of Rs. 11, 000/-. This submission cannot be given any weight. If advised, the petitioners may withdrawn this suit with permission to include this relief in that suit for specific performance and if they are permitted to do so, Court fee paid on this plaint will be refunded to them.
For the reasons given above, this revision fails and is dismissed.