Harpreet Singh vs Kabal Singh and Others

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 20.10.2010 (Annexure P/4) passed by learned Additional Civil Judge (Senior Division), Balachaur, whereby an application filed by respondent Nos. 1 and 3 for directing the petitioner/plaintiff to affix ad-valorem court fee, has been allowed. Brief facts of the case relevant for disposal of this revision are that petitioner-plaintiff filed a suit for joint possession as coparcener in the land in question and for permanent injunction restraining respondent Nos. 2 to 4 from alienating, selling or transferring the suit land to anybody else forcibly and without due course of law. In the plaint, declaration that sale deed is illegal, null and void, was also sought. The said suit was being contested by respondent Nos. 1 and 3 and they filed a joint written statement. During the pendency of the suit, the said respondents filed an application seeking a direction to the petitioner to affix ad-valorem court fee on the plaint. Vide impugned order dated 20.10.2010, the trial Court has allowed the application and the petitioner was directed to pay ad-valorem court fee on the value of transfer of ownership deed dated 06.06.2005. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner vehemently contended that the petitioner has already paid the court fee for the relief of joint possession and for the relief of permanent injunction. However, the application moved by the respondents has been allowed by the impugned order holding that the substantial relief claimed in the suit is with regard to cancellation of sale deed which is sought to be declared null and void, therefore, ad-valorem court fee was payable on the sale consideration in respect of the sale deed. Learned counsel for the petitioner further contended that the petitioner is claiming joint possession of coparcenary property being a coparcener and the court fee has been rightly affixed.

Learned counsel for the respondent has opposed the contentions raised by the learned counsel for the petitioner and stated that the order passed by the learned trial Court is legal.

I have considered the rival contentions raised by the learned counsel for the parties and perused the record.

The limited question that arises for consideration in the present case is as to what court fee is payable in regard to the prayer for declaration that sale deed is void and not binding on the plaintiff being a coparcenary property and for the consequential relief of joint possession and injunction.

The said issue has already been settled by the Hon''ble Supreme Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, wherein it has been held as under:-

Court fee in the State of Punjab is governed by the Court Fees Act, 1870 as amended in Punjab (''Act'' for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17 (iii) of Second Schedule requires payment of a court fee of Rs. 19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by section 7(iv)(c) of the Act which provides:

Computation of fees payable in certain suits: The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(iv) in suits- x x x x (c) for a declaratory decree and consequential relief.-to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.

In all such suits the plaintiff shall state the amount at which he values the relief sought:

Provided that minimum court-fee in each case shall be thirteen rupees. 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."

The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof.

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 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 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.

In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable u/s 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.

In the present case also, the petitioner is claiming joint possession and permanent injunction. The petitioner-plaintiff was not executant of the sale deed, therefore, the court fee is computable u/s 7(iv)(c) of the Court Fees Act, 1870. The trial Court was, therefore, not justified in holding that the effect of the prayer was to seek cancellation of the sale deed, therefore, court fee had to be paid on the sale consideration mentioned in the sale deed. In view of law laid down in Suhrid Singh @ Sardool Singh''s case (supra), present revision petition is allowed and the impugned order passed by the learned trial Court is set aside. The court fee already paid by the petitioner-plaintiff is in accordance with the provisions of law. However, in order to further avoid any error, the trial Court is directed to calculate the court fee in accordance with Section 7(iv)(c) of the Court Fees Act, 1870 as indicated above, with reference to the averments made in the plaint.