Ramji Das vs Dharam Pal

Alok Singh, J.—In both the petitions, identical question is involved, hence with the consent of learned Counsel for the parties, both the petitions are being heard and disposed of by this common order.

For the sake of brevity, with the consent of learned Counsel for the parties, is being taken as a leading case.

Plaintiff has invoked the supervisory jurisdiction of this Court challenging the order dated 28.5.2010 passed by Civil Judge (Junior Division), Samana, whereby the Plaintiff was directed to pay ad valorem court fee.

Plaintiff/Petitioner has filed a suit for declaration, declaring sale deed void on the ground that sale deed is outcome of fraud and mis representation. It has further been contended in the plaint that Plaintiff was taken in the Registrar''s office to get a ''Will deed'' executed and by playing fraud instead of ''Will deed'', sale deed was got executed from the Plaintiff.

Full Bench of this Court in the matter of Niranjan Kaur v. Nirbigan Kaur 1982 (84) PLR 127 reported in 1982 (84) PLR 127 has held as under:

It is well settled that the Court in deciding the question of Court fee should look into the allegation 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 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. Because in a suit under that clause, the main relief is that of a declaration and the consequential relief is just ancillary.

This Court in Civil Revision No. 5235 of 2010 titled "Chand Kaur v. Jagsir Singh and Anr. Civil Revision No. 5235 of 2010" decided on 8.11.2010, has held as under:

In the opinion of this Court, if any alienation is outcome of fraud, misrepresentation or coercion, then alienation shall be voidable and in that event, Plaintiff has to seek annulment / cancellation of the deed. However, if deed is ipso facto void, abinitio, then suit simplicitor for declaration shall be maintainable.

In the present case, Plaintiff is the executant of the sale deed and she has challenged the alienation on the ground of fraud and misrepresentation, hence, the alienation would be voidable for which simplicitor suit for declaration is not competent and main hidden relief is suit for annulment/cancellation for which Plaintiff has to pay ad valorem court fee. Learned Trial Court has not committed any illegality or jurisdictional error while directing the Plaintiff to pay ad valorem court fee.

Now, it is settled position of law that if Plaintiff is one of the executants and alienation is being challenged on the basis of fraud, mis-representation or coercion, then alienation is voidable and not void, hence cancellation there of is the main hidden relief, hence, Plaintiff is required to pay ad valorem court fee.

Learned Counsel for the Petitioner states that since no relief for possession is being sought in the plaint, hence Plaintiff is not required to pay ad valorem court fee.

In the matter of Suhrid Singh and Sardool Singh v. Randhir Singh and Ors. CA No. 2811-13 of 2010 decided on 29.3.2010 Hon''ble Supreme Court has held that if hidden relief is of cancellation then Plaintiff has to pay ad valorem court fee. Supreme Court has further clarified that if simpliciter suit for declaration is sufficient without claiming possession, then ad valorem court fee is not required to be paid. Supreme Court has further clarified, in the suit for declaring the alienation void with the consequential relief of possession, then ad valorem court fee is to be paid.

Present case falls within first category since hidden relief is cancellation of the deed, hence Plaintiff is required to pay ad valorem court fee irrespective of the fact he is not claiming consequential relief of possession.

Dismissed. However, two months'' time is granted to the Plaintiff to pay ad valorem court fee.