Aarti Sharma vs Billu
2014 Latest Caselaw 3808 Del

$~15
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+           CM(M) 473/2014 & C.M.Nos.8329-8330/2014
                                                           20th AUGUST, 2014


AARTI SHARMA                                              ..... Petitioner
                           Through       Mr.Munish Tyagi, Advocate.

                           versus
BILLU                                                      ..... Respondent

Through CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition impugns the order of the court below dated 02.4.2014

which has rejected the application under Order 7 Rule 11 CPC filed by the

petitioner/defendant. The application under Order 7 Rule 11 CPC was filed

because as per the petitioner/defendant, the suit was not properly valued and

the appropriate court fee was not paid. The subject suit is a suit for

declaration and injunction.

2. Trial court has held that since the respondent/plaintiff is not a party to

the subject document which is sought to be voided, hence the

plaintiff/respondent did not have to seek cancellation of the same and a suit

for declaration that the document/sale deed was void was sufficient. The

trial court has in this regard relied upon the observations of the Supreme

Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh &

Ors., AIR 2010 SC 2807.

3. The relevant observations in the impugned order are revealed to the

judgment in the case of Suhrid Singh (supra) and are contained in para 6

and consequential observations are contained in para7, and which paras read

as under:-

"6. The answer to this issue lies in the decision of the Apex Court reported as Suhrid Singh @ Sardool Singh vs. Randhir Singh and Ors., AIR 2010 SC 2807. The relevant observations in para 6 of the judgment are as under:

"Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relation to 'A' and 'B' - two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for declaration that the deed executed by 'A' is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. but the form is different and court-fee is also different. If 'A' the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court-fee on the consideration stated in the sale deed. If 'B', who is a non- executant, is in possession and sues for a declaration that the

deed is null or void and does not bind him or his share, he has to merely pay a fixed court-fee of Rs.19.50 under Article 17 (iii) of Second Schedule of the Act. But if 'B', a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court-fee as provided under Section 7

(iv) (c) of the Act. Section 7 (iv) (c) provides that in suits for a declaration decree with consequential relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief, the court-fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief 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 Section 7"

7. In this view of the matter, the plaintiff, who is not the executant of the sale deed is not required to seek its cancellation and accordingly he is not required to value his relief of declaration of the sale deed as null and void on the total consideration amount of Rs.29,31,000/-. It is pertinent to mention here that in the order dated 31.10.2012, as regards the aspect of possession, it was observed, "plaintiff is admittedly in possession of the suit property at present and he also has a prima facie case in his favour."

(underlining added)

4. In view of the above, since the respondent/plaintiff is not required to

seek cancellation of the deed to which he was not a party, but since the

plaintiff/respondent is only seeking a declaration, the trial court was justified

in relying upon the ratio of the judgment of the Supreme Court in the case of

Suhrid Singh (supra) for dismissing the application of the

petitioner/defendant under Order 7 Rule 11 CPC. The

respondent/plaintiff/landlord was given possession of the suit property at the

time he purchased the suit property.

5. In view of the above, there is no merit in the petition, and the same is

therefore dismissed, leaving parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 20, 2014 KA