Punjab-Haryana High Court
Smt.Prem Kanta vs Ms.Poonam Sharma And Others on 17 November, 2008
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
C.R. No. 1830 of 2007
Date of Decision: 17.11.2008
Smt.Prem Kanta.
....... Petitioner through Shri
D.S.Brar, Advocate.
Versus
Ms.Poonam Sharma and others.
....... Respondent through Shri
Pawan Kumar, Senior
Advocate with Shri Swapan
Shorey, Advocate.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This is a revision petition under Article 227 of the Constitution of India for setting aside order dated 7.3.2007 passed by the Additional Civil Judge (Senior Division),Jagadhri (hereinafter described as `the trial Court') by which the petitioner has been directed to affix ad valorem court fee on the market value of the land in question.
The petitioner has filed a civil suit challenging the sale deed dated 20.10.1995 executed by her late husband in favour of the respondents.
During the pendency of the proceedings, an application under Order 7 Rule 11 of the C.P.C. was moved by the respondents upon which the impugned order was passed.
C.R.No.1830 of 2007-2-
....
Learned counsel for the petitioner contended that the petitioner has merely filed a suit for declaration to get the sale deed declared as null & void and for cancellation thereof and, therefore, she was not required to pay ad valorem court fee as directed by the trial Court. In support of his contention, he placed reliance on a Full Bench judgment of this Court in Niranjan Kaur Versus Nirbigan Kaur, 1982 P.L.R. 127, wherein it was held as under:-
"It is well settled that the Court in deciding the question of Court fee should look into the allegation 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 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. Because in a suit under that clause, the main relief is that of a declaration and the consequential relief is just ancillary.
.... 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 I, 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 C.R.No.1830 of 2007 -3- ....
of a declaration and the consequential relief should be ancillary thereto. Moreover, if no consequential relief is claimed or could be claimed in the suit, then section 7(iv)(c) will not be attracted. 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 is Article 1, Schedule I." On the other hand, learned counsel for the respondents contended that a perusal of the plaint reveals that the relief is not only confined to merely cancellation of the sale deed, but the relief of possession has also been prayed for. He submitted that in view of this, there is no escape from the conclusion that has been arrived at in the impugned order. To support his contention/ submission, he placed reliance on Dalbir Singh Versus Ranjit Singh and others, 2006(2) P.L.R. 763; Yuv Raj and others Versus Balwant Singh and others, 2006(3) P.L.R. 208 and Ajmer Singh Versus Punjab Singh (minor) and another, 2007(1) R.C.R. 436.
I have thoughtfully considered the rival contentions. The relevant extracts of the averments, the grounds for setting aside the sale deed and the prayer made by the petitioner in the plaint which is on record, are extracted below:-
"7. That the alleged general power of attorney bearing no.205 dated 9.8.1995 allegedly executed by plaintiff in favour of her C.R.No.1830 of 2007 -4- ....
deceased husband Parven Kumar Dhami regarding the suit property as well as the subsequent sale deed no.2897 dated 20.10.1995 allegedly executed by husband of the plaintiff on the basis of the general power of attorney regarding the suit property are wrong, illegal, null, void, ineffective and not binding on the rights of the plaintiff and the same are liable to be set aside on the following grounds:-
(i)to (iv) xx xx xx xx xx xx
(v)That it worth while to mention here that the suit property is situated at a strategic place like being near Railway Station and in the commercial locality the value of which was worth crores of rupees but it was shown to be sold only for Rs.2 lacs which is not believable.
xx xx xx xx xx xx xx xx It is, therefore, prayed that the suit of the plaintiff may kindly be decreed and a decree for declaration to the effect that the plaintiff is the owner in possession of the property measuring `150' x 140', as fully detailed and described in the heading of the plaint, situated at Agrasen Chowk, Near Railway Station, Railway Road, Yamuna Nagar, on the basis of judgment and decree dated 5.2.1999 passed in Civil Suit No.71 of 1993, titled Prem Kanta Vs. Ram Piari, passed by the court of Shri R.K.Sharma, the then Sub Judge Ist Class, Jagadhri and the alleged general power of attorney bearing no.205 dated C.R.No.1830 of 2007 -5- ....
9.8.1990 allegedly executed by plaintiff in favour of her deceased husband Parveen Kumar Dhami regarding the suit property as well as the subsequent sale deed no.2897 dated 20.10.1995 allegedly executed by husband of the plaintiff on the basis of general power of attorney regarding the suit property are wrong, illegal, null, void, ineffective and not binding on the rights of the plaintiff as owner in possession of the suit property and consequently for permanent injunction restraining the defendants from interfering in the actual, peaceful and physical possession of the plaintiff over the suit property as owner and restraining them from alienating the suit property further to any body by way of sale, lease, gift, mortgage or in any other manner whatsoever, may kindly be passed in favour of the plaintiff and against the defendants with costs in the interest of justice."
As reproduced above, in Niranjan Kaur's cased (supra), the Full Bench had observed that the Court is required to look at the substantive relief which has been prayed in the suit and mere astuteness in drafting the plaint will not robe of its character.
A perusal of the plaint, the relevant portion of which has been extracted above, reveals that the petitioner has sought cancellation of the sale deed and has also cleverly couched his prayer for possession in deceptive words.
Therefore, in view of the observations of the Full Bench C.R.No.1830 of 2007 -6- ....
noticed above and the consistent law laid down by this Court in the judgments relied upon by the learned counsel for the respondents, I do not find any infirmity in the impugned order.
The revision petition is accordingly dismissed being devoid of any merits.
November 17,2008 ( Mahesh Grover ) "SCM" Judge