Savitri Rani alias Savitri vs Smt. Daya Wati and Another

Vinod K. Sharma, J.

CM No. 19598-CII of 2010

For the reasons stated in the application, CM is allowed, order dated 28.7.2010 is recalled and the case is restored to its original number.

CR No. 3662 of 2008

The petitioner has invoked the supervisory jurisdiction of this Court to challenge the order dated 7.5.2008, passed by the learned trial Court, vide which the petitioner was directed to pay the ad valorem court fee as per the sale deed, which was under challenge.

This Court on 11.7.2008 passed the following order:

Savitri Rani alias Savtri has filed the instant revision petition under Article 227 of Constitution of India, assailing order dated 07.05.2008 (Annexure P-1) of learned Civil Judge (Junior Division), Faridabad, whereby the petitioner, who is plaintiff in the civil suit pending in the court of learned Civil Judge (Junior Division), Faridabad, has been directed to pay ad valorem court fee on the amount of sale consideration of the sale deed dated 14.10.2005, which is under challenge in the suit.

The petitioner has filed civil suit seeking declaration that she is owner in possession of 1/24 share in the land described in para No. 1 of the plaint and that sale deed dated 140.10.2005 executed by the petitioner qua the same and the consequent mutation, are illegal, null and void etc. and not binding on the ownership right of the petitioner. The petitioner has also claimed consequential relief of permanent injunction restraining vendee-defendant No. 2 from interfering in the ownership and possession of the petitioner and from dispossessing her from the disputed land and from alienating the same.

Defendant No. 2 moved application (Annexure P-2) under Order 7 Rule 11 of the CPC for directing the petitioner to pay ad valorem court fee on the sale consideration of the sale deed which was for Rs. 21,25,000/-. The said application has been allowed by the trial court by passing the impugned order (Anenxure P-1).

Learned Counsel for the petitioner contended that in view of Section 7(iv)(c) of the Court Fee Act, 1870 (in short ''the Act''), as applicable to State of Haryana, fixed court fee of Rs. 25/- only is to be paid in a suit for declaration. The argument cannot be accepted. The petitioner, by simply couching the relief in a documentary form, cannot avoid the payment of court fee because the petitioner in substance is seeking relief of cancellation of sale deed executed by her qua her share in the suit land. For cancellation of sale deed, ad valorem court fee is payable.

The petitioner has challenged the sale deed inter alia on the ground that she was minor at the time of the sale deed dated 14.10.2005, her date of birth being 08.09.1988. Thus, she was over 17 years of age at the time of execution of sale deed, which has admittedly been executed by her. Consequently, she has to pay ad valorem fee on the sale consideration as in substance, the relief claimed by the petitioner is for cancellation of the sale deed qua her share. Learned Counsel for the petitioner, in support of his contention that only fixed court fee of Rs. 25/- is payable for a suit for declaration, has relied upon a judgment of this Court in the case of Bhupesh Kumar Sharma and Ors. v. Manohar Kumari and Ors. reported as 2007 (2) RCR (Civil) 784. In that case, however, the plaintiffs had challenged the sale deeds executed by the defendants being in excess of the share of the defendants. In that case, the sale deeds had not been executed by the plaintiffs themselves, unlike in the instant case, wherein the sale deed has been executed by the petitioner-plaintiff herself. Reliance has also been placed on a judgment of this Court in the case of Raj Kumar and Ors. v. Shri Dadu Lal Trust and Ors. reported as 2007 (1) RCR (Civil) 173. In that case, land of mandir was sold by creating a Trust. Mutation in favour of Trust stood cancelled, but inspite thereof, the Trust executed sale deed of the land. The said sale deed was challenged by mandir. Thus, in that case also, the sale deed had not been executed by the plaintiff-mandir. Both the judgments are, therefore, completely, distinguishable on facts.

It is, thus, apparent that the learned trial court has taken a correct view of the matter by directing the plaintiff to pay ad valorem court fee on the sale consideration of the sale deed.

However, during the course of arguments, it has come to notice that the sale price of the share of the petitioner was only half of the sale consideration mentioned in the sale deed, which was executed by another vendor as well. Consequently, the petitioner can be directed to pay ad valorem court fee on the sale price of her share i.e. half of the total sale price. Notice to this limited extent only be issued to respondents for 18.09.2008.

Meanwhile, if the petitioner pays ad valorem court fee on half of the sale price mentioned in the sale deed, within one month from today, the operation of the impugned Order (Annexure P-1) qua the remaining amount of court fee shall remain stayed.

It is the case of respondent No. 2, that in pursuance to the order passed by this Court, the petitioner has paid the ad valorem court fee as per her share.

It is agreed between the parties that this revision petition be disposed of by making the interim order absolute.

Ordered accordingly.