Mr. Pramil Khandelwal vs Mr. Shivraj Puri and another

Ram Chand Gupta, J.

C.M.No. 28376-CII of 2011

Application is allowed subject to ail just exceptions.

Civil Revision No 7327 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 4.11.2011, Annexure P4, passed by learned Civil Judge (Junior Division), Gurgaon, vide which the petitioner-plaintiff was directed to pay ad valorem Court fee on the relief of specific performance on an application filed by respondent No. 2-defendant under Order 7 Rule 11 of the CPC (for short ''the Code'') for rejecting the plaint. 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.

Briefly stated, petitioner-plaintiff filed this suit for a decree for mandatory injunction with consequential relief of permanent injunction directing respondent-defendant No. 2 to transfer the property, which is detailed in para No. 1 of the plaint in favour of petitioner-plaintiff and further restraining it from cancelling the allotment of respondent No. 1 and not to allot the same to some other person in collusion with each other. Plea has been taken that respondent-defendant No. 1 entered into an agreement to sell/transfer the property in dispute in favour of petitioner-plaintiff after the same was allotted to respondent-defendant No. 1 by respondent-defendant No. 2 and he had also received entire sale consideration from him and however, respondent-defendant No. 2 is not transferring allotment of the same in favour of petitioner-plaintiff after receiving transfer fee.

On notice being issued, respondent-defendant No. 2 filed application for rejection of plaint under Order 7 Rule 11 of the Code by taking the ground that the plaint does not disclose any cause of action. Plea was also taken that suit is not maintainable in the present form and that moreover appropriate court fee has also not been affixed. Learned trial Court vide impugned order did not accept plea of respondent-defendant No. 2 that the plaint is liable to be rejected as the same does not disclose any cause of action and, however, after perusing the plaint, learned trial Court came to the conclusion that in the garb of relief of mandatory injunction, in fact, petitioner-plaintiff is claiming relief of specific performance and hence, he is liable to pay ad valorem court fee for seeking relief of specific performance of agreement executed between him and respondent-defendant No. 1.

It has been contended by learned counsel for the petitioner-plaintiff that it cannot be said that the present suit is for specific performance and that rather the same is for mandatory injunction directing respondent-defendant No. 2 to transfer the allotment of plot in dispute in favour of present petitioner after original allottee, i.e., respondent-defendant No. 1 agreed to get the same transferred in his favour after receiving entire consideration.

However, the plea cannot be accepted. Matter regarding Court fee has been settled by a Full Bench of this Court in Niranjan Kaur v. Nirbigan Kaur,1 (1982)84 P.L.R. 127 (F.B.) by observing that the Court in deciding the question of court fee should look into the allegations made in the plaint to find out what is the substantive relief that is asked for and that mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. It has been further observed that where the main relief is that of the cancellation of the deed, and the declaration, if any, is only a surplusage, the case would not be covered u/s 7(iv)(c) of the Act and in that case main relief in the main suit is held to be cancellation of the sale-deed, the only provision applicable is Article 1, Schedule I of the Act. Relevant paragraphs of the same reads as under:-

It is well settled that the Court in deciding the question of Court fee should look into the allegations made in the plaint to find out what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. Thus, in each case, the Court has to find out the real relief claimed by the plaintiff in the suit. Where the main relief is that of cancellation of the deed, and the declaration, if any, is only a surplusage, the case would not be covered u/s 7(iv)(c) of the Act, because in a suit under that clause the main relief is that of a declaration and the consequential relief is just ancillary. In this respect, reference may again be made to Mr. Zeb-ul-Nisa''s case (supra), wherein it has been observed as follows:-

It seems obvious that the consequential relief referred to in Section 7(iv)(c) could not mean a substantive relief, the valuation of which is separately provided for in the Court Fees Act. if it were so held, a plaintiff could easily evade payment of the necessary Court-fee on the substantive relief by prefacing it with a declaration as to his rights. Every suit involves the establishment of certain rights of the plaintiff as a necessary preliminary to the grant of the relief claimed by him. But the addition of a prayer for a declaration as to such rights cannot convert a suit for a substantive relief into one for a declaratory decree where consequential relief is prayed for within the meaning of Section 7(iv)(c) Court-fees Act. It is significant that the valuation of the relief in cases falling within the scope of Section 7(iv)(c) is left to the plaintiff. This is presumably because the ''consequential relief contemplated by the section is some ancillary relief to which the plaintiff becomes entitled as a necessary result of the declaration, but for which no separate provision is made in the Act. The essence of the relief in such cases lies in the declaratory part and the consequential relief being merely an auxiliary equitable relief, its valuation seems to have been left to the plaintiff. The meaning of the expression ''consequential relief and used in Section 7(iv)(c), Court-fees Act, was recently considered by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal,2 54 All. 812 (F.B.) and it was held that the expression ''consequential relief means some relief, which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a ''substantial relief. It follows, therefore, that if the relief claimed in any case is found in reality to be tantamount to a substantial relief and not a mere ''consequential relief in the above sense, the plaintiff must pay Court-fee on the substantial relief.

It is the common case of the parties that in case the main relief in the suit is held to be that of cancellation of the sale-deed, then the case is not covered by Section 7(iv)(c) and the only provision applicable is Article 1, Schedule I of the Act. In order to bring the case u/s 7(iv)(c) of the Act, the main and substantive relief should be that of a declaration and the consequential relief should be ancillary thereto.

Moreover, if no consequential relief is claimed or could be claimed in the suit, then Section 7(iv)(c) will not be attracted. Section 7(iv)(c) clearly contemplates suits to obtain the declaratory decree or order where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which he values the relief sought. A further proviso has been added thereto by the Punjab Act No. 33 of 1953, which reads as follows:-

''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.''

In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act, will be applicable, but the suit filed by the plaintiff-petitioner was virtually, to all intents and purposes, for the cancellation of the sale deed, executed by her, in favour of the defendant-respondent. She cannot claim possession unless the said deed is cancelled by a decree of the Court. To say in the plaint, that it be declared that the sale deed, got executed from her as a result of the fraud, was void and not binding on her, does not convert the suit into one for a declaration with the consequential relief of possession so as to fall within the provisions of Section 7(iv)(c) of the Act. To such a suit, the only article applicable Article 1, Schedule I of the Act, and for that proposition, further support can be had from a Full Bench decision of the Allahabad High Court in Kalu Ram''s case (supra), also wherein as regards the valuation of the relief as to the cancellation of the alternation, it has been held that such a relief falls neither u/s 7(iv)(c) nor under Schedule II Article (iii), but under the residuary article 1 Schedule 1 of the Act.

In view of the above proposition, this Court is to see as to what relief actually being claimed by plaintiff in the suit and in order to claim that relief, as to what Court fee is required to be affixed. It has been rightly observed by learned trial Court on the facts of the present case that the present suit is in fact for specific performance of agreement executed between the present petitioner and respondent-defendant No. 1.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon''ble Apex Court in Surya Dev Rai Vs. Ram Chander Rai and Others, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:-

Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.