Punjab-Haryana High Court
Jagdish Kaur vs Arvinder Pal Singh And Others on 23 August, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 7242 of 2010(O&M)
Date of Decision: August 23, 2011.
Jagdish Kaur.
...... PETITIONER(s)
Versus
Arvinder Pal Singh and others.
...... RESPONDENT (s)
CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr. Sanjay Gupta,
Advocate for the petitioner.
Mr. Rajeev Gupta,
Advocate for respondent No.1.
Mr. Parveen Kumar, and
Mr. Dinesh Nagar,
Advocates for respondents No.2 and 3.
*****
RAM CHAND GUPTA, J.(Oral)
Petitioner-plaintiff has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 06.10.2010, Annexure P6, passed by learned trial Court in case titled as Jagdish Kaur v. Arvinder Singh and others. CR No.7242 of 2010 2
I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.
Facts relevant for the decision of the present revision petition are that, petitioner-plaintiff filed this suit for declaration that she continues to be absolute owner in possession of the property in dispute and that sale deed executed by respondent-defendant No.1 i.e. her son in favour of respondents- defendants No.2 and 3, on the basis of general power of attorney dated 07.12.2000 allegedly executed by her in favour of respondent-defendant No.1, is illegal, null and void and does not affect the rights of plaintiff with relief of permanent injunction restraining respondents-defendants No.2 and 3 from interfering in peaceful possession of the plaintiff over the property in dispute. As the petitioner-plaintiff has sought to cancel the sale deed executed by her through power of attorney in favour of respondents No.2 and 3, learned trial Court vide impugned order directed the petitioner-plaintiff to pay advalorem court fee on sale consideration of the sale deed. Aggrieved against the said order, the present revision petition has been filed.
It has been contended by learned counsel for the petitioner- plaintiff that she has also challenged the general power of attorney on the basis of which respondent-defendant No.1 has executed sale deed of the property in dispute in favour of respondents-defendants No.2 and 3 and hence, it is contended that she is not required to pay advalorem court fee. He has also placed reliance upon 1981 PLJ p.423, Niranjan Kaur v. Nirbigan Kaur, Ram Singh v. Labh Singh, 2006(1) RCR(Civil) Page 209 and Ishwar v. Smt. Om Pati, 2006(2) CCC page 4.
CR No.7242 of 2010 3
On the other hand, it has been argued by learned counsel for respondents No.2 and 3 that respondent-defendant No.1 is real son of petitioner-plaintiff and that there was registered power of attorney in his favour, which was executed and got registered in the year 2000 and that hence, respondents-defendants No.2 and 3 have purchased the property in dispute for a consideration of `56,00,000/- vide registered sale deed dated 10.09.2009, which is sought to be got cancelled. It is further contended that the said registered power of attorney was cancelled some time after 05.10.2009 though exact date has not been mentioned by petitioner-plaintiff.
Law on the point has been settled by Hon'ble Apex Court in Suhrid Singh @Sardool Singh v. Randhir Singh and others, 2010(2) RCR (Civil) 564, 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 party to the sale deed, he is required to pay advalorem court fee as per consideration of the sale deed. 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 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 CR No.7242 of 2010 4 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."
Hence, in view of the legal proposition as held by Hon'ble Apex Court, petitioner-plaintiff who is party to the sale deed which is sought to be cancelled has to pay advalorem court fee on the consideration amount of sale deed irrespective of the fact as to whether sale deed was executed through power of attorney or directly. There is no force in the argument of learned counsel for the petitioner that if sale deed is executed through power of attorney and the power of attorney has also been challenged then petitioner is not required to pay advalorem court fee on the consideration amount of sale deed.
CR No.7242 of 2010 5
In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or 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, 2003(6) SCC 675: AIR 2003 SC 3044: 2004(1) RCR (Civil) 147 that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:-
"Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby."
Hence, the present revision petition is, hereby, dismissed being devoid of any merit.
( RAM CHAND GUPTA ) August 23, 2011. JUDGE 'om'