Plaintiff filing suit seeking declaration regarding cancellation of gift deed and sale deed - He has only sought the consequential relief of injunction - Plaintiff is not required to pay ad- valorem Court fee

PUNJAB AND HARYANA HIGH COURT

Before :- Ram Chand Gupta, J.
Civil Revision No. 1029 of 2010 (O&M). D/d. 15.3.2011.

Narinder Kumar - Petitioner
Versus
Naresh Kumar and others - Respondents

For the Petitioner :- Mr. S.D. Bansal, Advocate.
For the Respondent No. 1 and 2 :- Mr. K.G. Chaudhary, Advocate.
For the Respondent No. 4 :- Mr. Ramesh Pal Daaria, Advocate.
For the Chandigarh Administration :- Mr. Harsimran Singh Sethi, Advocate.

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Cases Referred :
Suhrid Singh @ Sardool Singh v. Randhir Singh , 2010(2) RCR (Civil) 564 : 2010(2) RAJ 436.
Surinder Singh v. Narinder Singh, 2010(4) R.C.R. (Civil) 139.

Punjab and Haryana High Court, Chandigarh Judgments

JUDGMENT
Ram Chand Gupta, J. - The present revision petition has been filed under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure (hereinafter to be referred as 'the Code') for setting aside the impugned order dated 19.1.2010, Annexure P1, passed by learned Civil Judge,
Junior Division, Chandigarh, vide which application, Annexure P4, filed by contesting respondents No. 1 and 2 (defendants No. 3 and 4) under Order 7 Rule 1 sub Rule (1) read with Section 151 of the Code and under Section 7(iv)(c) of the court Fee Act, 1870 (hereinafter to be referred as 'the Act') was accepted and petitioner-plaintiff was directed to make the deficiency in court fee within one month, i.e., upto 19.2.2010.
2. 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.
3. Facts relevant for the decision of present revision petition are that a suit for declaration to the effect that Gift deed dated 16.2.2006 executed by defendant No. 1 in favour of defendant No. 2 registered in the office of Sub Registrar, U.T., Chandigarh at Serial No. 4905 Book No. 1, Volume No. 152, page No. 143, in respect of land 'Gair Mumkin Malkan' for 1/8th share out of total land measuring 1 kanal 7 marlas comprising in Khewat No. 177, Khatauni No. 229/30, Khasra No. 156/2(0-7), Khasra No. 156/4(0-10) situated in Village Burail, U.T., Chandigarh, Hadbast No. 222 as per jamabandi for the year 1982- 83 alongwith the buildings erected thereupon, upto the first floor earlier No. 1159/2 presently known as Building No. 2028, Village Burail, U.T. Chandigarh, is illegal, null and void and nonest as defendant No. 1 has no right to execute any gift deed in respect of the share of the plaintiff in the above noted property, which is absolutely owned and possessed by the plaintiff since the year 1980, after an oral partition effected between the plaintiff, defendant No. 1 and defendant No. 5, suit for declaration to the effect that the sale deed dated 1.6.2009 of the abovesaid property, executed by defendant No. 2 in favour of defendants No. 3 and 4, on the basis of the said gift deed dated 16.2.2006 is also null and void, illegal, nonest as defendant No. 2 has no right to execute any sale deed on the basis of gift deed, which defendant No. 2 got executed and registered in her name by committing fraud upon defendant No. 1 in connivance with defendants No. 7 and 3, who is suffering from paralysis and is bed-ridden since the year 2003, with further relief of permanent injunction restraining defendants No. 3 and 4 from alienating, selling, gifting, leasing, mortgaging or creating any third party charge on the said property and suit for mandatory injunction directing respondent No. 6 to change the title in respect of the property in dispute in the name of the plaintiff from the name of defendants No. 3 and 4 and suit for permanent injunction restraining defendants No. 1 to 4 not to interfere in the peaceful possession of the plaintiff in respect of his share in the property in question.
4. On notice being issued respondents No. 1 and 2 (defendants No. 3 and 4) appeared before learned trial Court and without filing any written statement filed an application under Order 7 Rule 1 Sub-rule (1) read with Section 151 of the Code and under Section 7(iv)(c) of the Act for dismissal of the suit on the ground that petitioner-plaintiff has not affixed the appropriate Court fees as provided under Section 7(iv)(c) of the Act. Application has been contested by present petitioner-plaintiff. However, the same was accepted by learned trial Court and petitioner-plaintiff was directed to make up the deficiency in court fee.
5. It has been contended by learned counsel for the petitioner that learned trial Court has committed a grave error and illegality in passing the impugned order while directing the petitioner-plaintiff to affix ad valorem Court fee upon the plaint. It has been contended that no substantial relief of possession has been claimed by the petitioner, as he was already in possession of the property in question, which he got in partial partition of Joint Hindu Family property in the year 1980 and that he is only seeking declaration regarding cancellation of gift deed and the sale-deed, which was executed on the basis of said gift deed.
6. On the other hand, it has been contended by learned counsel for the respondents that as petitioner-plaintiff has sought to declare gift deed and sale deed as null and void, he is required to pay ad valorem court fee under Section 7(iv)(c) of the Act.
7. Law has been settled by Hon'ble Supreme Court of India in a recent in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others, 2010(2) RCR (Civil) 564 : 2010(2) RAJ 436 in which it has been specifically held that in case where plaintiff is seeking a declaration that the sale-deed is null and void being not a party to the sale deed and is also not seeking possession, the plaintiff is not required to pay ad-valorem court fee but where the plaintiff is seeking cancellation of saledeed alongwith consequential relief of possession, he is required to pay advalorem court fee. The relevant paragraph of the aforementioned 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 nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed in invalid, or nonest, 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 advalorem 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."
8. In the present case, facts are not in dispute. Present petitioner-plaintiff is not a party to the gift deed and the sale deed sought to be declared null and void. He has also not sought consequential relief of possession on the plea that he is already in possession of the property in dispute. He has only sought the consequential relief of injunction.
9. Hence, in view of aforementioned facts, he is not required to affix ad- valorem court fee on the amount of consideration of gift deed and the sale deed under challenge.
10. The same view has been taken by a coordinate Bench of this Court in Surinder Singh and others v. Narinder Singh, 2010(4) R.C.R. (Civil) 139.
11. Hence, in view of recent pronouncement of Hon'ble Apex court in Suhrid Singh @ Sardool Singh's case (supra), an illegality and material irregularity has been committed by learned trial Court in passing the impugned order and a grave injustice and gross failure of justice has occasioned thereby, warranting interference by this Court.
12. Hence, the present revision petition is accepted and the impugned order is set aside.

Petition allowed.
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