Punjab-Haryana High Court
Santosh Kumari vs Sneh Lata And Others on 14 November, 2014
CR No.5712 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5712 of 2011 (O&M)
Date of Decision: 14.11.2014
Santosh Kumari
...Petitioner
Versus
Sneh Lata and others
...Respondents
CORAM: HON'BLE MR.JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers 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?
Present: Mr. Vishal Garg, Advocate
for the petitioner.
Mr. Mukand Gupta, Advocate
for the respondents.
R.P. Nagrath, J.
The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India for setting aside the order dated 21.5.2011 passed by the trial Court whereby application of defendant-respondents under Order VII Rule 11 of the Code of Civil Procedure was allowed and petitioner has been directed to affix the Court fee on the market value of the property.
It was initially contended by learned counsel for the petitioner that the suit was filed to challenge the Power of Attorney being a fabricated document and the consequent sale deeds and not SURESH KUMAR 2014.11.19 16:31 I attest to the accuracy and authenticity of this document Chandigarh CR No.5712 of 2011 2 for possession. However, it was fairly conceded that on setting aside of the sale deeds, the petitioner has also claimed possession of the property. In paragraphs 9, 12 and 13 of the plaint, it was clearly stated that the contesting respondents on the basis of sale deeds have taken illegal possession of the property and the petitioner is entitled to possession thereof. Even in the prayer clause, similar relief of possession has been claimed.
I have heard learned counsel for the parties at considerable length, perused the impugned order and also the paper book and find the impugned order to be quite legal and there is no scope of interference.
Learned counsel for the petitioner relied upon Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, 2010(4) SCC (Civil) 585 in support of his contention. The principle laid down by Hon'ble the Supreme Court in the aforesaid judgement rather supports the respondents' contention. Hon'ble Supreme Court held 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' -- SURESH KUMAR 2014.11.19 16:31 I attest to the accuracy and authenticity of this document Chandigarh CR No.5712 of 2011 3 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 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 SURESH KUMAR 2014.11.19 16:31 I attest to the accuracy and authenticity of this document Chandigarh CR No.5712 of 2011 4 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 (emphasis supplied) Learned counsel for the petitioner also relied upon Nanak Chander and another Vs. Nand Kumar, 1989 CivCC 299. This judgement also would not support the case of petitioner.
Learned counsel for the petitioner submits that present suit relates to a constructed property including commercial property. In Nanak Chand's case (supra), this Court found that the Court fee was payable on the amount of the sale consideration of the sale deed which was subject matter of challenge as well as 10 times of land revenue for relief of possession as the property involved was agricultural land assessed to land revenue.
In Raj Kumar and others Vs. Shri Dadu Dayal Trust and others, 2007(1) RCR (Civil) 173, plaintiffs claimed themselves to be owners in possession of the property and the challenge was that the change of ownership in mutation was contrary to law and outcome of fraud and thus not binding on the rights of temple. Since plaintiffs had not claimed possession of the property in question, therefore, it was held that Court fee was payable in terms of Section 7(iv) (c) of the Court Fee Act and not the ad-valorem Court fee on sale consideration of the sale deed.
Learned counsel for the respondents was quite justified in placing reliance on the judgement of this Court in Surjit Kaur Vs. Tej SURESH KUMAR 2014.11.19 16:31 I attest to the accuracy and authenticity of this document Chandigarh CR No.5712 of 2011 5 Kaur and others (CR No.3478 of 2013, decided on 30.09.2014) in which similar proposition was involved. The plaintiffs-non-executants of the sale deed not in possession of suit property, sought declaration that the sale deeds were not binding on them and prayed for consequential relief of possession. It was held that they had to pay ad-valorem Court fee.
It was the case of the respondent-defendants themselves in the application under Order 7 Rule 11 of the Code of Civil Procedure that as per market value of the property as found by the engineer, amount of ad-valorem Court fee comes to ` 18,554/- and the deficiency in the Court fee was therefore, ` 12,052/- as the Court fee was deposited by the plaintiff-petitioner on the sale consideration mentioned in the sale deed, but not on the value of property for which possession is also sought. In the circumstances, even if some difference in market value is found on the basis of evidence to be lead during the trial, the deficiency can still be directed to be made good at the conclusion of trial.
From the above discussion, I do not find any illegality in the impugned order passed by the trial Court.
The instant petition is dismissed. It is directed that petitioner would make good the deficiency of Court fee in terms of the order of the trial Court within a period of one month from today.
(R.P. Nagrath) 14.11.2014 Judge sk SURESH KUMAR 2014.11.19 16:31 I attest to the accuracy and authenticity of this document Chandigarh