Gurinderjit Singh vs Parbhjit Singh and Another

Ram Chand Gupta, J.

C.M. No. 5047-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 1235 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 17.9.2010, Annexure P2, passed by learned Civil Judge, Junior Division, Malerkotla, vide which application of Petitioner filed under Order 7 Rule 11 of the CPC (hereinafter to be referred as ''the Code'') has been dismissed.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Brief facts relevant for the decision of present revision petition are that Respondent No. 1-Plaintiff filed a suit for declaration that he is owner of the land in dispute with a relief of permanent injunction restraining Defendants from alienating the land in dispute, in any manner.

An application was filed under Order 7 Rule 11 of the Code by Petitioner for rejection of the plaint on the plea that as Respondent-Plaintiff has challenged the validity of sale-deed executed by Defendant No. 1 in favour of Defendant No. 2, he should have affixed ad valorem court fee on the amount of consideration of the sale deed, i.e., Rs. 13,14,000/-. The application was dismissed by learned trial Court by observing as under:

Heard on application under Order 7 Rule 11 Code of Civil Procedure.

Parties argued as per their case through their counsel.

After hearing both sides, I have come to the conclusion that Plaintiff has challenged sale deed vide which as per Plaintiff, he has been deprived of his coparcenary rights by his father. He was not a party to that sale deed. Moreover, as a consequential relief, no exclusive possession has been pleaded, so, Plaintiff is not liable to pay court fee. Hence, application stands dismissed. To come up on 29.9.2010 for filing written statement.

It has been contended by learned Counsel for the Petitioner that as validity of sale-deed has been challenged by Respondent-Plaintiff, he should have affixed the court fee on the amount of consideration of the sale-deed, i.e., Rs. 13,14,000/-.

Law has been settled by Hon''ble Supreme Court of India in a recent judgment in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors. 2010 (2) RCR (Civil) 564 : 2010 (2) RAJ 436 wherein it has been held that if Plaintiff is non-executant and 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 Court Fee Act, 1870. The relevant paragraph of the aforementioned judgment reads as under:

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 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 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 u/s 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.

Facts of the present case are not in dispute. The Respondent-Plaintiff is not a party to the sale-deed, which has been challenged by him. Rather the same was executed by his father. He has also not sought relief for possession. He has only sought relief for declaration that he is owner of the property in dispute as the same is joint Hindu Family property in the hands of his father and that he is having share in the said property being member of joint Hindu Family.

In view of these facts, it cannot be said that Respondent-Plaintiff is required to pay ad valorem court fee on the amount of consideration of the sale deed or that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 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 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 merit.