Shakhawat vs Javed & Others

Sudhanshu Dhulia, J

The petitioner before this Court had filed a suit for cancellation of a sale deed before the Civil Judge (J.D.), Haridwar, where an objection was raised by the defendants as to the valuation of the suit, inasmuch as, according to the defendants the court fee was to be paid on the market value of the property and not on the land revenue being paid on the property. The trial court came to the conclusion that the subject matter of the suit being the cancellation of a sale deed, under the Court Fees Act, 1870, the petitioner was liable to pay the court fee on the market value of the property. Consequently, the objection of the defendants to this extent was allowed by the trial court vide order dated 19.03.2005 and the plaintiff/petitioner was asked to pay the court fee as per the market value of the property.

The appeal filed by the petitioner against the order dated 19.03.2005 has also been dismissed by the appellate court vide order dated 16.11.2007. Aggrieved, the petitioner has filed the present writ petition before this Court.

By the interim order dated 23.04.2008 passed by this Court, the proceedings before the trial court have been stayed.

Although both the courts below have given a categorical finding on consideration of the subject matter of the suit that the court fee is liable to be given on the valuation of the suit property. However, none of the two courts have assigned cogent reasons as to why they have arrived at such a finding.

Learned Senior Counsel for the petitioner would argue that what has not been considered by the courts below is the provisions of Section 7(iv-A) of the Court Fees Act, 1870 (as amended by the State of U.P. and as applicable in the State of Uttarakhand) and would argue that if the land is revenue paying, the court fee is to be paid at the 1/5 of thirty times of the land revenue.

Sub-section (iv-A) of Section 7 of the Court Fees Act, 1870 (as amended in the State of U.P. and as applicable in State of Uttarakhand) reads as under:-

"For cancellation or adjudging void instruments and decrees. - (iv-A) In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value :

(1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter, and

(2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be-if the whole decree of instrument in involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates.

Explanation.- 'The value of the property' for the purposes of this sub-section, shall be the market-value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) or (v-B), as the case may be."

Sub-section (v) of Section 7 of the Court Fees Act, 1870 reads as under:-

"For possession of lands, building or gardens. - (v) In suits for the possession of land, buildings or gardens-according to the value of the subject-matter; and such value shall be deemed to be-

(I) where the subject-matter is land, and-

(a) where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such an estate, and is recorded in the Collector's register as separately assessed with such revenue and such revenue is permanently settled-thirty times the revenue so payable;"

The learned Senior Counsel for the petitioner submits that in view of sub-section (v) of Section 7 of the Court Fees Act, 1870, the petitioner was liable to pay the court fee on the basis of land revenue.

This argument of the petitioner is totally misconceived. The provision is crystal-clear which is covered by sub-section (1) of Section 7 (iv-A) which says that in a suit involving, inter alia, cancellation of a sale deed, where the plaintiff or his predecessor-in-title was a party to the instrument, the court fee is liable to be paid as per the value of the subject matter.

In order to support his contention, however, the learned Senior Counsel for the petitioner has relied upon the case of Smt. Mamta Singh and another vs. Addl. District & Session Judge Room No. 8 Lucknow & others, passed in Misc. Single No. 4166 of 2014 (decided on 28.07.2014). However, this case is not applicable on the facts of the present case.

In view of the above, this Court finds no merit in the writ petition. The writ petition fails and is hereby dismissed. Interim order dated 23.04.2008 is hereby vacated.

The Registrar General is directed to apprise the court concerned of this order.