Punjab-Haryana High Court
Ami Chand vs Raj Pal And Others on 1 March, 2011
Equivalent citations: AIR 2011 PUNJAB AND HARYANA 109, (2011) 103 ALLINDCAS 406 (P&H), (2011) 2 PUN LR 23, (2011) 2 RECCIVR 521
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
Civil Revision No.5820 of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.5820 of 2008 (O&M)
Date of Decision: March 1, 2011
Ami Chand
.....Petitioner
v.
Raj Pal and others
.....Respondents
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Kulbhushan Sharma, Advocate
for the petitioner.
Mr.M.K.Mittal, Advocate
for the respondents.
.....
RAM CHAND GUPTA, J.
1 The present revision petition has been filed under Article 227 of the Constitution of India for quashing of the impugned order dated 23.9.2008, Annexure P1, passed by learned Additional Civil Judge, Senior Division, Rewari, vide which application under Order VII Rule 11 of the Code of Civil Procedure (hereinafter to be referred as `the Code') has been allowed directing the petitioner to affix ad valorem Court fee.
2. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.
3. Facts relevant for the decision of present revision petition are that petitioner-plaintiff has filed a suit for decree of declaration declaring him as owner in respect of land measuring 52/15 marlas being 885/1140 share of 57 kanal, as mentioned in para no.1 of the plaint and pattedar of the entire 57 kanal and that the plaintiff is in possession of the disputed land except Killa No.18/2, 23/2, and that sale deed document no.211, dated 28.5.2004 and Tarak Patta document No.212 dated 23.8.2004 and pattanama document No.791 dated 5.9.2005 and the mutations on that basis in favour of the defendants are null and void, illegal and without any jurisdiction and Civil Revision No.5820 of 2008 (O&M) -2- that plaintiff is not bound by the same and that on that basis the defendants have got no right, title or interest regarding the disputed land and that these sale deeds and tarak patta namas are result of fraud and misrepresentation alongwith consequential relief of permanent injunction restraining the defendants from interfering into the peaceful possession of the disputed land except killa nos.18/2 and 23/2 with further relief of possession of Killa Nos.18/2 and 23/2 by removing construction in favour of the plaintiff against the defendants. Further relief of possession on the entire land is sought on the plea that if his possession is not proved over the remaining disputed land or the defendants succeed in dispossessing the plaintiff from the suit land forcibly, the decree for possession in favour of plaintiff and against the defendants regarding the entire land be passed.
4. An application was filed by respondent-defendants under Order VII Rule 11 of the Code by taking the plea that plaintiff had challenged the registered sale-deed on the basis of fraud and that the main relief of plaintiff is for declaration for getting the sale-deed as invalid. The consideration of sale-deed is Rs.6,90,000/-. Hence, plaintiff should have affixed Court fee as per market value of the land in question, i.e., as per consideration of the sale-deed and however, plaintiff has affixed the Court fee of Rs.50/- only. Hence, it is prayed that plaintiff is required to pay ad valorem Court fee on the entire consideration of sale-deed, i.e., Rs.6,90,000/-, failing which plaint be rejected.
5. In reply to the application, it has been stated by petitioner- plaintiff that the present suit has been filed on the basis of title and the main relief of plaintiff is for declaration that he is owner and pattedar of the land in question and remaining relief of cancellation of document is ancillary relief and hence, proper court fee has been affixed as per law and ad valorem court fee is not required to be paid.
6. Learned trial Court decided the application filed by respondent- defendants in their favour and present petitioner-plaintiff was directed to affix ad valorem court fee within one month from the date of passing of the order by observing as under:-
"Keeping in view the arguments addressed by learned counsel for the parties and going through record available on Civil Revision No.5820 of 2008 (O&M) -3- the file this court is of the view that plaintiff himself has challenged the sale deed executed by him on the basis of fraud and for that purposes applicant has rightly placed his reliance Anil Rishi v. Gabakash Singh 1998(3) CCC page 78 and Ajmer Singh v. Punjab Singh (minor) and another 2007 (1) RCR (Civil) page 336. On the other hand respondent has also placed his reliance on Court Fee Act 1970. As the plaintiff himself has challenged the sale deed executed and rate of property is shown in the sale deed and no ad valorem court fee has been affixed by plaintiff, so in these circumstances present application of the applicant is liable to be allowed and respondent/plaintiff is directed to affix ad valorem court fee within one month of this order. By that way application stands disposed of."
7. It has been contended by learned counsel for the petitioner- plaintiff that learned trial Court has erred in not taking into consideration the amendment made by State of Haryana in the Court Fee Act 1870 (hereinafter to be referred as `the Act') vide Act No.22 of 1974 . It is further contended that in this case Court fee is required to be paid as per Section 7(IV) (c) of the Act and the same is to be calculated as per amended provisions of the said Act as applicable to the State of Haryana. He has also placed reliance upon Bhupesh Kumar Sharma and others v. Manohar Kumari and others, 2007(2) RCR (Civil) 784 and Ranjit v. Amar Singh and others 2007(1) PLJ 465.
8. On the other hand, it has been contended by learned counsel for the respondent-defendants that petitioner-plaintiff is a party to the sale- deed and the lease-deed, which are sought to be set aside by him and that the main relief is for cancellation of the said registered document with consequential relief of possession and permanent injunction. Hence, it is contended that ad valorem court fee, as per value of the property, as mentioned in the sale-deed, is required to be affixed.
9. Law on the point has been well settled by a Full Bench of this Court in Niranjan Kaur v. Nirbigan Kaur, 1982 PLR 127 by observing that the Court in deciding the question of court fee should look into the Civil Revision No.5820 of 2008 (O&M) -4- allegations made in the plaint to find out what is the substantive relief that is asked for and that 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. It has been further observed that 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 Act and in that case main relief in the main suit is held to be cancellation of the sale-deed, the only provision applicable is Article 1, Schedule I of the Act. Relevant paragraphs of the same reads as under:-
"7. It is well settled that the Court in deciding the question of Court fee should look into the allegations made in the plaint to find out what is the substantive relief that is 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. Thus, in each case, the Court has to find out the real relief claimed by the plaintiff in the suit. Where the main relief is that of 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 Act, because in a suit under that clause the main relief is that of a declaration and the consequential relief is just ancillary. In this respect, reference may again be made to Mt. Zeb-ul-Nisa's case (supra), wherein it has been observed as follows:-
` It seems obvious that the consequential relief referred to in Section 7(iv)(c ) could not mean a substantive relief, the valuation of which is separately provided for in the Court Fees Act. If it were so held, a plaintiff could easily evade payment of the necessary Court-fee on the substantive relief by prefacing it with a declaration as to his rights. Every suit involves the establishment of certain rights of the plaintiff as a necessary preliminary to the grant of the relief claimed by him. But the addition of a prayer for a declaration as to such rights cannot convert a suit for a substantive relief Civil Revision No.5820 of 2008 (O&M) -5- into one for a declaratory decree where consequential relief is prayed for within the meaning of Section 7(iv)(c ) Court-fees Act. It is significant that the valuation of the relief in cases falling within the scope of Section 7(iv)(c ) is left to the plaintiff. This is presumably because the `consequential relief' contemplated by the section is some ancillary relief to which the plaintiff becomes entitled as a necessary result of the declaration, but for which no separate provision is made in the Act. The essence of the relief in such cases lies in the declaratory part and the consequential relief being merely an auxiliary equitable relief, its valuation seems to have been left to the plaintiff.
The meaning of the expression `consequential relief' and used in Section 7(iv)(c ), Court-fees Act, was recently considered by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal, 54 All. 812 and it was held that the expression `consequential relief' means some relief, which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a `substantial relief'. It follows, therefore, that if the relief claimed in any case is found in reality to be tantamount to a substantial relief and not a mere `consequential relief' in the above sense, the plaintiff must pay Court-fee on the substantial relief.'
8. It is the common case of the parties that in case the main relief in the suit is held to be that of cancellation of the sale-deed, then the case is not covered by Section 7(iv)(c ) and the only provision applicable is Article 1, Schedule I of the Act. In order to bring the case under Section 7(iv)(c ) of the Act, the main and substantive relief should be that of a declaration and the consequential relief should be ancillary Civil Revision No.5820 of 2008 (O&M) -6- thereto. Moreover, if no consequential relief is claimed or could be claimed in the suit, then Section 7(iv)(c ) will not be attracted. Section 7(iv)(c ) clearly contemplates suits to obtain the declaratory decree or order where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which he values the relief sought. A further proviso has been added thereto by the Punjab Act No.33 of 1953, which reads as follows:-
`Provided further that in suits coming under sub-clause (c ), in cases where the relief sought 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 this section.'
9. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act, will be applicable, but the suit filed by the plaintiff-petitioner was virtually, to all intents and purposes, for the cancellation of the sale deed, executed by her, in favour of the defendant-respondent. She cannot claim possession unless the said deed is cancelled by a decree of the Court. To say in the plaint, that it be declared that the sale deed, got executed from her as a result of the fraud, was void and not binding on her, does not convert the suit into one for a declaration with the consequential relief of possession so as to fall within the provisions of Section 7(iv) (c ) of the Act. To such a suit, the only article applicable Article I, Schedule I of the Act, and for that proposition, further support can be had from a Full Bench decision of the Allahabad High Court in Kalu Ram's case (supra), also wherein as regards the valuation of the relief as to the cancellation of the alternation, it has been held that such a relief falls neither under Section 7(iv)(c ) nor under Schedule II Article (iii), but under the residuary article 1 Schedule I of the Act."
Civil Revision No.5820 of 2008 (O&M) -7-10. Hence, in view of the aforementioned legal proposition, if the main relief is that of cancellation of sale-deed by a party to the sale-deed, the case would not be covered under Section 7(iv)(c) of the Act and the same would be covered under Article 1 Schedule I of the Act, under which ad valorem Court fee is required to be affixed as per consideration of the sale-deed.
11. The present case, as already discussed above, is for cancellation of sale-deed, to which the present petitioner-plaintiff is a party and hence, same is not covered under Section 7(iv)(c) of the Act, rather the same is covered under Article 1 Schedule I of the Act. Hence, the aforementioned judgments, upon which reliance has been placed on behalf of the petitioner- plaintiff are not applicable to the facts of present case.
12. Moreover, law has been settled by Hon'ble Supreme Court of India in a recent judgment in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others, 2010(2) RCR (Civil) 564: 2010(2) RAJ 436 in which it has been specifically held that in case where plaintiff is seeking a declaration that the sale-deed is null and void being not a party to the sale deed and is also not seeking possession, the plaintiff is not required to pay ad-valorem court fee but where the plaintiff is seeking cancellation of sale- deed alongwith consequential relief of possession, he is required to pay ad- valorem court fee. The relevant paragraph of the aforementioned judgment 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 in invalid, or nonest, 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 Civil Revision No.5820 of 2008 (O&M) -8- 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 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."
13. Hence, in view of these facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.
14. Moeover, law is well settled 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 is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.
Civil Revision No.5820 of 2008 (O&M) -9-15. Hence,the present revision petition is, hereby, dismissed being devoid of any merit.
1.3.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.