Pawan Kumar and Another vs Suresh Kumar and Others

L.N. Mittal, J.—Aggrieved by order dated 10.10.2011 passed by trial court thereby dismissing application filed by defendants no. 9 and 10

under Order 7 Rule 11 of the CPC for rejection of plaint, defendants no. 9 and 10 have filed this revision petition under Article 227 of the

Constitution of India to challenge the said order. Respondent no. 1-plaintiff has filed suit inter alia challenging two sale deeds dated 7.8.1996 and

23.2.1999 executed by his father on the ground that the suit property was ancestral coparcenary property and therefore, could not be sold without

consideration and legal necessity. The plaintiff also claimed relief of possession of the suit property.

Defendant nos. 9 and 10 in their application alleged that the plaintiff is liable to pay ad valorem court fee on sale consideration of the impugned

sale deeds and therefore, the plaint is liable to rejection due to non payment of the requisite court fee.

The plaintiff opposed the said application.

Learned trial court has dismissed the application filed by defendants no. 9 and 10 who have, therefore, filed this revision petition to challenge the

order of the trial court.

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

Counsel for the petitioners contended that since plaintiff is not in possession of the suit property and has claimed the relief of possession thereof,

he is liable to pay ad valorem court fee.

On the other hand, counsel for respondent no. 1-plaintiff contended that since the plaintiff is not party to the sale deeds under challenge, he is

not liable to pay ad valorem court fee on sale consideration of the impugned sale deeds.

I have carefully considered the matter. In view of judgment of Hon''ble Supreme Court in the case of Suhrid Singh @ Sardool Singh Vs.

Randhir Singh and Others, the plaintiff being not party to the sale deeds under challenge, is not liable to pay ad valorem court fee on sale

consideration mentioned in the sale deeds. However, since the plaintiff has claimed relief of possession of the suit property, he is liable to pay ad

valorem court fee on market value of the suit property in view of section 7(iv)(c) read with section 7(v) of the Court Fees Act, as also held in the

case of Surhid Singh (supra). In view of the aforesaid, it is apparent that impugned order passed by the trial court is illegal and suffers from

jurisdictional error. Resultantly, the instant revision petition is allowed. Impugned order passed by the trial court is set aside. Application filed by

defendants no. 9 and 10 is allowed and respondent no. 1-plaintiff is directed to pay ad valorem court fee on market value of the suit property in

accordance with section 7(iv)(c) read with section 7(v) of the Court Fees Act, to the extent of share claimed by the plaintiff in the suit property,

failing which the plaint shall be liable to be rejected.