Himachal Pradesh High Court
Subhash Chand Arora vs Ramesh Chand Arora And Ors on 23 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 334/2017
.
Reserved on: 17th July, 2018
Decided on: 23rd July, 2018
______________________________________________________________
Subhash Chand Arora .......Petitioner
Versus
Ramesh Chand Arora and ors. .......Respondents
Coram
_______________________________________________________________
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the petitioner: Mr. G. R. Palsra, Advocate.
For the respondents: Ms. Nishi Goel & Mr. Deven Khana,
Advocate, for respondents No. 1 to 3.
Respondents No. 4 to 6 ex parte.
Justice Tarlok Singh Chauhan, J.
The moot question in this petition is as to what would be the court fee payable on an instrument to which the plaintiff/petitioner is not a party, but at the same time, he is also not in possession of the suit property.
2 According to the learned trial court, the case of the plaintiff was governed by the provisions of Section 7(iv)(c) of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 2H.P. Court Fee Act, which required the plaintiff to pay ad valorem court fee on the settlement deed, wherein the value of the property in question was mentioned as Rs.67,97,120/- and .
accordingly, the suit of the plaintiff was dismissed by the learned trial court vide order dated 22.12.2015 and the plaint was ordered to be returned to the plaintiff for filing the same before proper court after affixing proper court fee. However, on an appeal, the learned first appellate court vide order dated 28.3.2017, even though affirmed the findings of the learned trial court qua return of the plaint to the plaintiff, but at the same time, modified the order passed as regards dismissal of the suit as well as preparation of the decree-sheet. It is against these orders, the plaintiff has filed the instant petition under Article 227 of the Constitution of India on the ground that the impugned orders passed by both the learned courts below are contrary to the provisions of the H.P. Court Fee Act and, therefore, deserve to be set aside.
3 It is vehemently argued by learned counsel for the plaintiff that both the learned courts below have failed to draw a distinction between a executant of a deed and non-executant of a deed. He would further argue that it is more than settled that where the executant of a deed wants it to be annulled, he ::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 3 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. In order to buttress his submission, reliance is placed upon the judgment of the Hon'ble Supreme Court in Suhrid Singh alias Sardool Singh vs. Randhir Singh and ors., (2010) 12 SCC 112, more particularly para 7 thereof. He would further argue that the similar reiteration of law can be found in the judgments of the Hon'ble Supreme Court in Satheedevi vs. Prasnna and anr., (2010) 5 SCC 622 and Polamrasetti Manikyam and anr. vs. Teegala Venkata Ramayya and anr., (2014) 5 SCC 603.
4 On the other hand, learned counsel for defendants/respondents No. 1 to 3 after relying upon Section 7(iv)(c) of the H.P. Court Fee Act, would argue that the valuation in the case was required to be determined on the basis of the plaintiff's pleadings and more especially with the reference to the relief claimed in the suit and if the substantive relief is for the cancellation of the document, then mere clever drafting of the plaint cannot stand in the way of the Court looking into the substantive relief asked for. They would ::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 4 further argue that the plaintiff is not required to pay ad valorem court fee on the value of the property only in cases where -
i. he is found to be in possession of the suit .
property;
ii. he has not claimed consequential relief; iii. he is not the executant of the document; and iv. he has prayed for declaration and not cancellation.
They would further submit that the Court is required to see as to whether the relief claimed in the suit is in fact for cancellation of settlement deed. They have also placed reliance upon Suhrid Singh's case (supra).
5 I have heard the learned counsel for the parties and have also gone through the material placed on record carefully.
6 At the outset, it would be noticed that the suit filed by the plaintiff is one for declaration with consequential relief of injunction, wherein he has claimed the following reliefs:
a) That the alleged family settlement deed No. 37, dated 7.8.2008 is wrong, illegal, null and void and has no binding effect upon the right of the plaintiff.
b) That mutation No. 1240 dated 26.8.2008 attested on the basis of alleged family settlement deed is wrong, illegal, null and void.
c) As a consequential relief, the defendants may be restrained from causing any interference and ::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 5 changing the nature of the suit property in any manner whatsoever by way of permanent and prohibitory injunction.
.
d) And/or any other relief to which the plaintiff may be found entitled to in the circumstances of the case under consideration be granted and justice be done.
7 Now, adverting to the Suhrid Singh's case (supra), upon which both the parties have placed strong reliance, it would be noticed that the Hon'ble Supreme Court was dealing with the case under the Punjab Court Fee Act which is para materia with the H.P. Court Fee Act and it was held that in a suit seeking cancellation of sale deed of which the plaintiff was not the executant, the court fee need not be paid on the sale consideration mentioned in the sale deed, whereas in case a suit for declaration that the sale deed is null and void or for any other reason is filed by the executant, which in turn means suit for cancellation of sale deed, then he has to pay valorem court fee on the consideration stated in the sale deed. The Hon'ble Supreme Court held as under:
"5. The Court fee in the State of Punjab is governed by the Court Fees Act,1870 as amended in Punjab (`Act' for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee ::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 6 indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court fee of Rs.19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for .
a declaration and consequential relief of possession and injunction, court fee thereon is governed by section 7(iv)(c) of the Act which provides :
"7. Computation of fees payable in certain suits:
The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :
(iv) in suits -x x x x (c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount at which he values the relief sought:
Provided that minimum court-fee in each shall be thirteen rupees.
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."
6. The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides ::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 7 that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the .
market value of the houses, under clause (e) thereof.
7. 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 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 ::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 8 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.
8. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.
9. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments."
::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 98. Evidently the following principles can be culled out from the aforesaid decision:
i. if the executant of a document wants the deed to be .
annulled, he has to seek cancellation of the deed and to pay ad valorem Court fee on the consideration stated in the said sale deed;
ii. but if a non-executant seeks annulment of deed i.e. when he is not party to the document, he is to seek a declaration that the deed is invalid, non-est, illegal or that it is not binding upon him. In that eventuality , he is to pay the fixed court fee as per Article 17(iii) of the Second Schedule of the Act;
iii. but if the non-executant is not possession and he seeks not only a declaration that the sale deed is invalid, but also a consequential relief of possession, he is to pay the ad valorem court fee as provided under Section 7(iv) (c ) of the Act and such valuation in case of immovable property shall not be less than the value of the property as calculated in the manner provided for by Clause (v) of Section 7 of the Act.
9 Thus, this Court has no difficulty in concluding that if the non-executant of the deed, who is out of possession, seeks consequential relief and cancellation of the deed, then he is required to pay ad valorem court fee on the amount stated in the deed, which in this case happens to be Rs. 67,97,120/-.
10 Admittedly, the plaintiff is not in possession of the suit land and, therefore, by clever drafting cannot be permitted ::: Downloaded on - 25/07/2018 23:01:12 :::HCHP 10 to value the suit as per his own choice, more particularly, when the main relief in fact, as claimed in the suit, relates to cancellation of the family settlement deed.
.
11 Having said so, I find no merit in this petition and the same is accordingly dismissed leaving the parties to bear their own costs. Pending application(s), if any, also stands dismissed.
23rd July, 2018 (Tarlok Singh Chauhan)
(pankaj) Judge
::: Downloaded on - 25/07/2018 23:01:12 :::HCHP