Dharam Pal And Another vs Jai Parkash And Others on 8 November, 2011

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Punjab-Haryana High Court

Dharam Pal And Another vs Jai Parkash And Others on 8 November, 2011

Bench: Ram Chand Gupta

           IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                           CHANDIGARH


                                           Civil Revision No.7168 of 2009
                                    Date of Decision: November 8, 2011.


Dharam Pal and another

                                                  ...... PETITIONERS.

                                  Versus



Jai Parkash and others.

                                                  ...... RESPONDENTS.



CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA



Present:     Mr. Saurabh Bajaj, Advocate
             for the petitioners.

             Mr. Samir Rathore, Advocate
             for Mr. Sumeet Goel, Advocate
             for respondents No.4 and 5.

                          *****
RAM CHAND GUPTA, J.(Oral)

Petitioners have invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for quashing of order dated 24.09.2009 passed by learned Civil Judge (Senior Division), Karnal vide which the petitioners-plaintiffs have been directed to affix ad valorem court fee on the basis of consideration of sale deeds dated 24.03.2000 and 11.10.2001 by allowing the application filed by the respondents-defendants No.4 and 5 under Order 7 Rule 11 of the Code of Civil Procedure (for short `CPC').

CR No.7168 of 2009 2

I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by the learned trial Court.

Brief facts giving rise to the present revision petition are that present petitioners-plaintiffs have filed a suit for decree of declaration challenging the decree dated 22.07.1994 as well as subsequent sale deeds dated 24.03.2000 and 11.10.2001.

An application was filed on behalf of the respondents- defendants No.4 and 5 under Order 7 Rule 11 CPC that petitioners- plaintiffs are required to affix ad valorem court fee on the consideration of sale deeds dated 24.03.2000 and 11.10.2001, however, as the same has not been paid, the plaint is liable to be rejected.

The trial court vide impugned order dated 24.09.2009 allowed the application of respondents-defendants and directed the present petitioners-plaintiffs to affix ad valorem court fee on the consideration amount of two sale deeds.

The law on the point has been settled by Hon'ble Apex Court in recent judgment rendered in .Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others 2010(2) RCR (Civil) 564; 2010 (2) RAJ 436; 2010(2) Civil Court Cases 510 (SC). Relevant paragraph of the same 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'.

CR No.7168 of 2009 3

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 nonest/ 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."

Admittedly, petitioners-plaintiffs are not party to the sale deeds sought to be set aside in the present suit. They have sought the relief of declaration for setting aside the said sale deeds. However, they have also claimed consequential relief of possession. Hence, they are required to pay court fee under Section 7 (iv) (c) of the Court Fee Act as held by the Hon'ble Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others (supra).

Hence, the present revision petition is accepted. The impugned order passed by learned trial Court is modified to this extent. CR No.7168 of 2009 4

Disposed of accordingly.

( RAM CHAND GUPTA ) November 8, 2011. JUDGE Sachin M.

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