Allahabad High Court
Ashok Kundalia & Another vs Dr. Nanak Chand Khanduja & Another on 26 September, 2012
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 23
Case :- CIVIL REVISION No. - 341 of 1998
Petitioner :- Ashok Kundalia & Another
Respondent :- Dr. Nanak Chand Khanduja & Another
Petitioner Counsel :- Navin Sinha,Vipin Sinha
Respondent Counsel :- T.S.Dabas
Hon'ble Mrs. Sunita Agarwal,J.
List revised. None appears for the respondents.
Heard Ms. Manisha Ambwani, Advocate holding brief of Shri Vipin Sinha, learned counsel for the revisionist.
The revision has been filed challenging the order dated 22nd April, 1998 passed by the Ist Additional Civil Judge, Bareilly in Suit No. 470 of 1996. By means of said order the Issue No. 2 regarding valuation of the suit has been decided against the defendant-revisionist and it was held that the Court fee paid of amount of Rs. 200/- is sufficient.
The submission of the learned counsel for the revisionist is that the suit was filed for declaration that the sale agreement dated 20.9.1993 entered into between the parties and the conditions of the said agreement had not complied with by the defendant and as such the plaintiff is not liable to execute the sale deed in favour of the defendant as per the agreement. Further relief was sought is that declaration be made to the effect that as the defendants are guilty of violation of terms and conditions of sale agreement, the plaintiff is under no obligation to refund the entire sale consideration for an amount of Rs. 31, 40,000/- paid to him pursuant to the agreement dated 20.9.1993.
The written statement was filed by the defendant stating therein that defendant had always been ready and willing to get the sale deed executed and the fact that they have paid the entire amount of sale consideration of Rs. 31, 40,000/- prior to execution of the sale deed shows bonafide on the part of the defendant vendees. In fact the suit has been filed by the plaintiff to forfeit the amount of Rs. 31,40,000/- paid as sale consideration and the plaint is liable to be rejected under Order 7 Rule 11 of the C.P.C.
On the pleadings of the parties, the Issue No. 2 was framed that the suit is under valued and the defendants are liable to pay the Court fee of an amount approximately Rs. 2,35,707.50 on the reliefs sought for forfeiture of the sale consideration of Rs. 31, 40,000/- paid by the defendant.
The Court below while deciding the issue against the defendant has held that the main relief sought in the suit is for declaration and in case it is held that the plaintiff is not liable to execute the sale deed in favour of the defendant on default committed by them, the plaintiff would be entitled for damages. As he is not seeking any relief of damages and only sought relief that he should be held not liable for refund of the sale consideration. The relief sought for non-refund of sale consideration is a consequential relief and as such no Court fees is required to be paid upon the same.
Learned counsel for the revisionist has relied upon the judgment of this Court in 1996 AWC Page No. 434 (Dinesh Kumar Vs. Addl. District Judge Roorkee, Haridwar and others to submit that Court has to see the substantial and real relief sought in the suit and the Court fees is to be paid after it come to conclusion about the substantial and real relief sought in the suit. The relief sought should be seen in the facts and pleadings of parties in the case and payment of Court fee fixed for one relief alone will not be sufficient.
Considering the submission of the learned counsel for the revisionist, the plaint, written statement and agreement on record it is clear that the total amount of sale consideration agreed between the parties is Rs. 31, 40,000/-. There is no dispute about said fact and further the fact that plaintiff had already delivered possession of the disputed flat to the defendant.
The submission of the counsel for the revisionist-plaintiff is that the relief sought in the suit is for forfeiture of the entire sale consideration paid by him is substantiated from the record. There is no clause in the agreement that the plaintiff would be entitled to forfeit the sale consideration.
Whether the plaintiff/revisionist is entitled to forfeit the sale consideration on the basis of allegation made in the plaint is the real controversy which is to be resolved by the Court below for the purpose of grant of relief sought by him for forfeiture of the amount of Rs. 31,40,000/-, the entire sale consideration.
Thus, it is borne out from the record that the relief to get declaration for forfeiture of entire sale consideration is an independent relief sought by the plaintiff and is substantial one. The plaintiff is liable for payment of Court fee on the aforementioned relief and the same cannot be termed a consequential relief.
The Court below has erred in not looking into this aspect of the matter.
The order dated 22nd April, 1998 in Suit No. 470 of 1996 passed by Ist Additional Civil Judge, Bareilly is set aside. Plaintiff is directed to pay the Court fees on the relief sought by him within a period of one month from the date of production of copy of this order. The Court below is further directed to proceed with the suit and make an endeavour to decide the same at the earliest.
The revision is allowed with the observations made above.
Order Date :- 26.9.2012
A. Pt. Singh
