Balwinder Kaur vs Gurdip Kaur and others

Present civil revision petition under Article 227 of the Constitution

of India, filed at the hands of defendant No.3, is directed against the order dated

24.08.2017 passed by the learned trial Court, whereby her application under

Order VII Rule 11 of the Code of Civil Procedure, seeking a direction to the

plaintiff to pay ad-valorem Court fee, was dismissed.

Heard learned counsel for the petitioner.

Before proceeding further, it is pertinent to notice the relevant

observations made by the learned trial Court in para 3 of the impugned order,

which are based on sound reasons, besides supported by the law laid down by the

Hon''ble Supreme Court and the same read as under: -

"Perusal of record reveals that in the present case, the plaintiffs

have sought the relief of declaration along with permanent

injunction. Although, the defendant No.3 through this application

has challenged the amount of court fee affixed by the plaintiffs.

However, from the perusal of sale deed under challenge in the

present suit reveals that the plaintiffs are not a party to the same. In

these set of circumstances, it has been held by the Hon''ble Apex

Court in Surhid Singh @ Sardool Singh Vs. Randhir Singh and

others, 2010 (2) Civil Court Cases 510 (SC) that in case of

cancellation of deed sought by non-executant and he is in

possession, he has to sue for declaration that the deed is null and

void and does not bind him or his share and he has to pay merely a

fixed court fee. Similarly in Surinder Singh and others Vs.

Narinder Singh, 2010 (4) Civil Court Cases 083 (P&H) it was held

by the Hon''ble High Court suit for declaration that sale deed is null

and void -plaintiff not a party to the sale deed -plaintiff not seeking

possession-plaintiff not required to pay ad-valorem court fee -

order dismissing application under Order 7 Rule 11 CPC unheld. In

the present case, the plaintiffs have challenged the execution of a

sale deed dated 30.08.2006. It is further averred by the plaintiffs

that they are in possession of the suit property. In these set of

circumstances, when the plaintiffs are in alleged possession of the

suit property and have not sought possession of the same, rather

have challenged the sale deeds and power or attornies, in which

they are not a party then this court is of the considered opinion that

the requisite court fee has already been affixed by the plaintiffs and

the present application filed by defendant No.3 under Order VII

Rule 11 CPC for rejection of plaint on the ground of non affixation

of the court fee stands disallowed."

So far as the undisputed fact situation obtaining on record of the

case in hand is concerned, plaintiffs are admittedly not claiming any relief of

possession. They have filed a suit for declaration with permanent injunction. It is

also not in dispute that plaintiffs were not party to the sale deed, which is under

challenge. Under these undisputed circumstances, no fault can be found with the

impugned order passed by the learned trial Court and the same deserves to be

upheld.

So far as the judgment relied upon by learned counsel for the

petitioner in Boda Ram Vs. Beermati Devi and others, 2014 (2) Civil Court

Cases 818 is concerned, there is no dispute about the observations made therein.

However, on close perusal of the cited judgment, the same has not been found of

any help to the petitioner, being distinguishable on facts. Further, it is settled

proposition of law that peculiar facts and circumstances of each case are to be

examined, considered and appreciated first before applying any codified or

judgemade law thereto. Sometimes, difference of even one additional fact or

circumstance can make the world of difference, as held by the Hon''ble Supreme

Court in Padmausundrao Rao and another Vs. State of Tamil Nadu and

others, 2002 (3) SCC 533, Union of India Vs. Amrit Lal Manchanda and

others, 2004 (3) SCC 75, State of Orissa Vs. Md. Illiyas, 2006 (1) SCC 275

and State of Rajasthan VS. Ganeshi Lal, 2008 (2) SCC 533.

A bare perusal of the impugned order passed by the learned trial

Court would also show that not only the true facts of the case but even the law

laid down by the Hon''ble Supreme Court as well as this Court has been rightly

followed by the learned trial Court, before passing the impugned order. Having

said that, this Court feels no hesitation to conclude that the learned trial Court

was well within its jurisdiction to pass the impugned order and the same deserves

to be upheld, for this reason also.

During the course of hearing, learned counsel for the petitioner

could not point out any patent illegality or perversity in the impugned order,

which may warrant interference at the hands of this Court, while exercising its

revisional jurisdiction under Article 227 of the Constitution of India. The

impugned order passed by the learned trial Court has been found based on sound

reasons and the same deserves to be upheld, for this reason as well.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted

above, coupled with the reasons aforementioned, this Court is of the considered

view that since no illegality or perversity has been found in the impugned order,

the same deserves to be upheld. The revision petition having been found wholly

misconceived, bereft of merit and without any substance, must fail. No ground

for interference has been made out.

Resultantly, with the abovesaid observations made, present revision

petition stands dismissed, however, with no order as to costs.