Harish Kumar vs Rajender Kumar and Others

L.N. Mittal, J.—By this common order, I am disposing of two civil revision petitions i.e. CR No. 1517 of 2008 and CR No. 4169 of 2009 both titled Harish Kumar (minor) versus Rajender Kumar and others. Both these revision petitions have been preferred by plaintiff Harish Kumar (minor) who is son of defendant no. 1-Rajender Kumar. In the suit, plaintiff-petitioner has challenged sale deed of suit property executed by defendant no. 1 in favour of defendants no. 2 and 3 on the ground that the suit property was ancestral coparcenary property and the sale was made without consideration and legal necessity.

Defendants no. 2 and 3 filed application under Order 7 Rule 11 of the CPC (in short, CPC) alleging that the plaintiff has to pay ad valorem court fee on sale consideration mentioned in the impugned sale deed. Plaintiff by filing reply opposed the said application. Learned trial Court vide order dated 26.11.2007 held that plaintiff is liable to pay ad valorem court fee on sale consideration mentioned in the impugned sale deed. The said order is under challenge in CR no. 1517 of 2008. However, since no interim stay was granted in the said revision petition, the trial Court insisted on payment of ad valorem court fee by the plaintiff who however, failed to pay the same. Consequently, the trial Court vide order dated 11.09.2008 dismissed the suit for want of prosecution due to non payment of court fee. The said order is under challenge in CR no. 4169 of 2009.

I have heard learned counsel for the parties and perused the case file.

In view of judgment of Hon''ble Supreme Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, he plaintiff-petitioner, who is not executant of the impugned sale deed and is not party thereto, is not liable to pay ad valorem court fee on sale consideration mentioned in the said sale deed. Consequently, order dated 26.11.2007 passed by the trial Court, requiring the plaintiff to pay ad valorem court fee on sale consideration of the impugned sale deed, is illegal and suffers from jurisdictional error. In view thereof, the resultant order dated 11.09.2008 whereby the suit was dismissed for want of prosecution due to non-payment of ad valorem court fee, also becomes illegal and erroneous and the said order also suffers from jurisdictional error. Order dated 26.11.2007 having been found to be illegal, which was foundational order for the subsequent order dated 11.09.2008, the subsequent order dated 11.09.2008 also has to go.

Resultantly both the revision petitions are allowed. Impugned orders dated 26.11.2007 and 11.09.2008 passed by the trial Court are set aside. Application filed by defendants no. 2 and 3 under order 7 Rule 11 CPC stands dismissed. The suit is restored to the files of the trial Court to be decided in accordance with law. Parties are directed to appear before the trial Court on 29.09.2013. Pending civil miscellaneous application, if any, is disposed of as infructuous.