Punjab-Haryana High Court
M/S N.N.Estate Private Limited vs Surinder Goyal on 5 May, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
Civil Revision No.3600 of 2010(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.3600 of 2010(O&M)
Date of Decision: May 5, 2011
M/s N.N.Estate Private Limited
.....Petitioner
v.
Surinder Goyal
.....Respondent
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Namit Gautam, Advocate
for the petitioner.
Mr.Vikas Gupta, Advocate
for the respondent.
.....
RAM CHAND GUPTA, J.
The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 16.4.2010, Annexure P1, passed by learned Civil Judge, Junior Division, Ludhiana.
I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.
Facts relevant for the decision of present revision petition are that a suit for decree for declaration to the effect that agreement to sell dated 7.6.2002 executed between the parties is illegal, null, void and not enforceable against the plaintiff with consequential relief of mandatory injunction directing the defendant to return the original agreement and treat the same as cancelled and further for restraining the defendant from dispossessing or otherwise interfering in any manner in the peaceful possession of the plaintiff over the property in dispute.
Suit was contested by respondent-defendant admitting execution of agreement to sell and by filing counter-claim for seeking relief of specific performance of the said agreement. An application under Order VII Rule 11 of the Code of Civil Procedure (for short `the Code') was also Civil Revision No.3600 of 2010(O&M) -2- filed by respondent-defendant for rejection of the plaint on the ground that the petitioner-plaintiff has sought declaration regarding agreement to sell, according to which value of property has been mentioned as Rs.20 lacs and however, he has not affixed ad valorem court fee, as per consideration of agreement to sell, which was decided by learned trial Court vide impugned order by observing that petitioner-plaintiff is liable to pay ad valorem court fee on the loan amount, mentioned in the agreement to sell dated 7.6.2002, which was received by him from respondent-defendant.
It has been contended by learned counsel for the petitioner- plaintiff that petitioner-plaintiff has not sought possession of the property in dispute, as admittedly he is in possession of the same and, hence, it is contended that he is not required to pay ad valorem court fee.
On the other hand, it has been contended by learned counsel for the respondent-defendant that as petitioner-plaintiff is party to the agreement to sell, sought to be cancelled, hence, he is required to pay ad valorem court fee on the amount mentioned in the agreement.
Law has been laid down by Hon'ble Apex Court in a recent judgment in case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others, 2010(2) RCR (Civil) 564: 2010(2) RAJ 436: 2010(2) Civil Court Cases 510 (SC) wherein it has been held that if plaintiff is executant of a deed which is to be annulled, he has to seek cancellation of the deed. The relevant paragraph of the 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 nonest/ illegal and Civil Revision No.3600 of 2010(O&M) -3- 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."
Hence, in view of the aforementioned authority of the Hon'ble Apex Court as petitioner-plaintiff is seeking cancellation of agreement to sell executed by him in favour of respondent-defendant, he is required to pay ad valorem court fee on the consideration stated in the document, i.e., in the agreement to sell.
Though in the present case, petitioner-plaintiff has sought relief of declaration that agreement to sell executed by him in favour of the respondent-defendant is illegal, null, void and not enforceable upon him, however, a careful perusal of the plaint shows that petitioner-plaintiff is seeking cancellation of agreement to sell executed by him in favour of respondent-defendant. Law is well settled that litigant cannot be permitted to mould the relief to save court fee. Real intention of the plaintiff and the relief sought by him is to be found out from the contents of the plaint to decide question of court fee. It has been so held by Full Bench of this Court Civil Revision No.3600 of 2010(O&M) -4- in Niranjan Kaur v. Nirbigan Kaur, (1982) PLR 127, relevant paragraphs of which reads as under:-
"7. It is well settled that the Court in deciding the question of Court fee should look into the allegations 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 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 this respect, reference may again be made to Mt. Zeb-ul-Nisa's case (supra), wherein it has been observed as follows:-
` It seems obvious that the consequential relief referred to in Section 7(iv)(c ) could not mean a substantive relief, the valuation of which is separately provided for in the Court Fees Act. If it were so held, a plaintiff could easily evade payment of the necessary Court-fee on the substantive relief by prefacing it with a declaration as to his rights. Every suit involves the establishment of certain rights of the plaintiff as a necessary preliminary to the grant of the relief claimed by him. But the addition of a prayer for a declaration as to such rights cannot convert a suit for a substantive relief into one for a declaratory decree where consequential relief is prayed for within the meaning of Section 7(iv)(c ) Court-fees Act. It is significant that the valuation of the relief in cases falling within the scope of Section 7(iv)(c ) is left to the plaintiff. This is presumably because the `consequential relief' contemplated by the section is some ancillary relief to which the plaintiff becomes entitled as a Civil Revision No.3600 of 2010(O&M) -5- necessary result of the declaration, but for which no separate provision is made in the Act. The essence of the relief in such cases lies in the declaratory part and the consequential relief being merely an auxiliary equitable relief, its valuation seems to have been left to the plaintiff. The meaning of the expression `consequential relief' and used in Section 7(iv)(c ), Court-fees Act, was recently considered by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal, 54 All. 812 and it was held that the expression `consequential relief' means some relief, which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a `substantial relief'. It follows, therefore, that if the relief claimed in any case is found in reality to be tantamount to a substantial relief and not a mere `consequential relief' in the above sense, the plaintiff must pay Court-fee on the substantial relief.'
8.It is the common case of the parties that 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 1, 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 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. Section 7(iv)(c ) clearly contemplates suits to obtain the declaratory decree or order where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which he values the relief sought. A further proviso has been added thereto by the Punjab Act No.33 of 1953, which reads as follows:-
Civil Revision No.3600 of 2010(O&M) -6-`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.'
9.In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act, will be applicable, but the suit filed by the plaintiff-petitioner was virtually, to all intents and purposes, for the cancellation of the sale deed, executed by her, in favour of the defendant-respondent. She cannot claim possession unless the said deed is cancelled by a decree of the Court. 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 Article I, Schedule I of the Act, and for that proposition, further support can be had from a Full Bench decision of the Allahabad High Court in Kalu Ram's case (supra), also wherein as regards the valuation of the relief as to the cancellation of the alternation, it has been held that such a relief falls neither under Section 7(iv)(c ) nor under Schedule II Article (iii), but under the residuary article 1 Schedule I of the Act."
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 that a 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 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it Civil Revision No.3600 of 2010(O&M) -7- is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby.
Hence, the present revision petition is, hereby, dismissed being devoid of any merit.
5.5.2011 (Ram Chand Gupta) meenu Judge
Note: Whether to be referred to Reporter? Yes/No.