Sher Singh vs Dilpreet Singh and Others

K. Kannan, J.—The revision petition is against the order rejecting an objection taken by the defendant that the Court fee paid by the plaintiff was not proper. The suit had been filed for a declaration that sale deed executed by the father of the plaintiff was illegal, null and void and for relief of recovery of possession of the property in the hands of the purchaser. The Court observed that where the plaintiffs themselves were not parties, ad valorem court fee cannot be insisted and also observed that payment of court fee is essentially between the Court and party and respondent will not be entitled to join issues on the same. In the revision petition, the point urged by the counsel for the petitioner-defendant is that the property was admittedly in the hands of the purchaser and there is a relief of recovery of possession that is sought. Section 7 of the Court Fees Act, 1870 deals with Court fee. Clause (iv) sub clause (c) of Section 7 reads as under:

(iv) (c) for a declaratory decree and consequently relief. To obtain a declaratory relief or order, where consequential relief is prayed, the court fee will not on the amount at which the relief is sought is valued in the plaint or memorandum of appeal.

Proviso to clause (iv) reads as under:-

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.

Clause (v) provides that "where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof and where the relief is in regard to the houses, court fee shall be on the market value of the houses under clause (e) thereof.

Learned counsel for the petitioner refers to me a judgment of the Supreme Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, where the Supreme Court has dealt with the situation when there was no prayer for cancellation of the sale deeds but the relief sought was only for a declaration that the deeds did not bind the coparcenary and for joint possession. The Supreme Court held that the plaintiff in the suit was not the executant of the sale deeds and therefore, the Court fee was computable u/s 7(iv)(c) of the Act.

I am unable to assess whether there is any land revenue payable to the Government for an agricultural land and if there is revenue payable, it shall be 10 times of such revenue for determination of its valuation and where the land pays no such revenue, Clause V (c) will operate which reads as under:-

V (c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint-fifteen times such net profits but where no such net profits have arisen therefrom; the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood.

This shall appropriately be the manner of ascertainment of the Court fee. The plaintiff could not have adopted an arbitrary valuation. The valuation for the consequential relief of recovery of possession must have been in the manner referred to in clause V, the relevant portions of which I have extracted above.

If the suit has resulted in a decree, the exercise of what we have undertaken could have an academic value. However, if the suit has not proceeded, the Court shall call upon the plaintiff to pay the court fee in the manner referred to above after ascertaining whether the property is paying revenue to the Government or not. Even if the suit is concluded, the decree shall not be drawn up till the plaintiff is directed to pay court fee in the manner ascertained. The order passed by the Court below is set aside and the revision petition is allowed to the above extent.