Delhi High Court
Sandeep Kapur vs Janak Kapur & Anr. on 29 March, 2022
$~S~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th March, 2022
+ CS(OS) 192/2021
SANDEEP KAPUR ..... Plaintiff
Through: Mr. Rajeev K. Virmani, Senior
Advocate with Mr. Shivek Trehan,
Mr. Rajat Soni, Ms. Niharika, Mr.
Subhoday Banerjee, Mr. Jai Sahai
Endlaw and Ms. Shagun Chopra,
Advocates.
versus
JANAK KAPUR & ANR. ..... Defendants
Through: Mr. S.C. Singhal and Ms. Poonam
Taneja, Advocates.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
(Judgment released on 31.03.2022)
ANUP JAIRAM BHAMBHANI J. (ORAL)
I.A. No.10578/2021
By way of the present application under Order VII Rule 11 read
with Section 151 of the Code of Civil Procedure, 1908 (CPC) the
defendants seek rejection of the plaint on the ground that insufficient
court fee has been affixed on the plaint. The defendants also seek
rejection of the plaint in view of the provisions of section 34 of the
Specific Reliefs Act, 1963 alleging that the plaintiff is thereby seeking
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the relief of mere declaration with no consequential relief, which is
impermissible in law.
Applicant/Defendants' submissions:
2. Mr. S.C. Singhal, learned counsel appearing for the defendants,
submits that the plaintiff has not paid proper court fee on the plaint
inasmuch as in para 57 of the plaint, the suit has been valued for the
relief of declaration in relation to two relinquishment deeds at
Rs.400/- and for purposes of jurisdiction at Rs.4,50,00,000/- but court
fee of only Rs.1,100/- has been affixed on the plaint. It is Mr.
Singhal's contention that since the plaintiff values the suit for
purposes of jurisdiction at Rs.4,50,00,000/-, it was incumbent upon
the plaintiff to pay ad-valorem court fee on the said sum, which
would be Rs.4,39,200/- instead of paying only Rs.1,100/-. Counsel
contends that for this reason alone, the plaint is liable to be rejected.
Furthermore, it is contended by Mr. Singhal that the suit is also barred
by section 34 of the Specific Relief Act, since the plaintiff has sought
a decree merely of declaration without seeking any consequential
relief.
Plaintiff's submissions :
3. Mr. Rajeev K. Virmani, learned senior counsel instructed by Mr.
Shivek Trehan, learned counsel for the plaintiff, appearing on advance
copy, opposes the issuance of notice on the present application,
submitting that the application is wholly meritless and is a misuse of
the process of law, having been filed only to delay proceedings in the
suit.
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4. Mr. Virmani has drawn the attention of this court to the decision of
the Hon'ble Supreme Court in Suhrid Singh vs. Randhir Singh & Ors.
reported as (2010) 12 SCC 112, which draws a clear distinction
between a case where a party seeks 'cancellation' of a deed to which
such party is signatory or executant and a case where a party seeks a
'declaration' that a deed is invalid, non-est or illegal where such party
is not signatory or executant of the deed.
5. Learned senior counsel submits that the position of law as enunciated
in Suhrid Singh (supra) still holds the field; and that the principle has
been followed by a Co-ordinate Bench of this court in Smt. Tabassum
Ara vs. Mohd. Kamil & Ors. reported as 2017 SCC OnLine Del 672.
6. Learned senior counsel submits that the plaintiff has not sought
possession of either of the two properties that are subject matter of the
relinquishment deeds, since it is the plaintiff's case that property
bearing No. R-603 New Rajinder Nagar is already in the exclusive
possession of the plaintiff and property bearing No. R-592 New
Rajinder Nagar is in joint possession of the parties.
7. It is pointed-out that requisite averments as to the status of possession
of the properties are contained inter-alia in para 24 of the plaint, the
relevant portion of which reads thus :
"E. STATUS OF IMMOVABLE PROPERTIES AS ON DATE
S. No IMMOVEABLE POSSESSION
PROPERTIES
1. House No. R-592, New Ground Floor-with Defendant
Rajinder Nagar, New No.2.
Delhi-110060 First Floor - with Defendant
No.1.
Second Floor/Barsati - with
Plaintiff.
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2. House No. R- In Full Possession of
603, New Plaintiff
Rajinder Nagar,
New Delhi-
110060
... ... ...
8. To answer the defendants' contention that the plaintiff has not sought
any consequential relief, attention of this court is drawn to the
provisions of section 31 of the Specific Reliefs Act. It is the plaintiff's
case that in fact, the plaintiff is not seeking any consequential relief
but only a direction which follows upon the relinquishment deeds
being declared void; and this is permissible under section 31 of the
Specific Reliefs Act.
9. Accordingly, the plaintiff says that section 7(iv)(c) of the Court Fees
Act does not apply; and therefore, neither does the proviso thereto. It
is submitted that since section 7(iv)(c) does not apply, section 8 of the
Suits Valuation Act, 1887 also has no application. Furthermore, it is
contended that since no consequential relief is prayed for, the
plaintiff's case is covered for purposes of court fee by Article 17(iii)
of the Court Fees Act, on which a fixed court fee of Rs.19.50 is
payable on a self-valuation of Rs.200/- for each relief of declaration.
10. In support of his contention that the relief of delivering-up and
cancellation of the relinquishment deeds does not amount to
consequential relief, the plaintiff relies upon a decision of a Co-
ordinate Bench of this court titled Anita Chandra vs. Sudhir Chandra
& Ors. reported as 2021 SCC OnLine Del 2670, in which, the
plaintiff submits, the Co-ordinate Bench has held that the direction to
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the possessor of the document to deliver-up the same for it to be
cancelled, after the document is declared void, is a direction following
upon such declaration but is not consequential relief since such
direction is part of a composite relief contemplated in section 31 of
the Specific Relief Act. Accordingly, it is contended that section 34 of
the Specific Relief Act has no application.
11. It is submitted by learned senior counsel appearing for the plaintiff,
that therefore the objections taken in the present application, which
must be decided on the basis of the averments contained in the plaint
alone, are baseless inasmuch as the plaintiff is entitled to value the
suit at different sums for purposes of court fee and jurisdiction; and
since the plaintiff is not a signatory to the relinquishment deeds in
respect of which declaration is sought, the plaintiff is liable only to
pay fixed court fee on a valuation of Rs.200/- for each relinquishment
deed; while at the same time valuing the suit for purposes of
jurisdiction on the circle rate of the suit property, i.e. at
Rs.4,50,00,000/-.
12. The plaintiff explains that the suit has been valued on the reliefs for
declaration at Rs.200/- for each of the two relinquishment deeds; upon
which a fixed court fee of Rs.19.50, rounded-off to Rs.20/- on each
relief, has been paid; and the remaining court fee has been paid as the
one-time processing fee in terms of Office Order dated 23.08.2019
issued by the Delhi High Court.
13. Mr. Singhal counters the plaintiff's proposition that since no
consequential relief is prayed for, section 7(iv)(c) of the Court Fees
Act would not apply, by pointing-out that section 8 of the Suits
Valuation Act nevertheless requires the value for purposes of court
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fee and jurisdiction to be the same. Mr. Singhal however offers no
answer to the express mandate contained in section 8 of the Suits
Valuation Act that the two valuations are required to be the same in
"... suits other than those referred to in the Court-fees Act, 1870 (7 of
1870), section 7, paragraphs V, VI and IX, and paragraph X, clause
(d)..." of the Court Fee Act. Mr. Singhal also argues that if the
plaintiff's case is that the proper court fee payable is Rs. 20/- for each
relief of declaration, then the suit should have been filed before the
concerned subordinate court of lower pecuniary jurisdiction.
Discussion &conclusions :
14. To assess the rival contentions raised on behalf of the parties, it would
be useful to first extract the relevant portion of Order VII Rule 11 of
the CPC and of other relevant statutory provisions, which read as
under:
Order 7 Rule 11:
"11. Rejection of plaint.--The plaint shall be rejected in the
following cases:--
(a) *****
(b) where the relief claimed is undervalued, and the plaintiff, on
being required by the Court to correct the valuation within a time to
be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is
written upon paper insufficiently stamped, and the plaintiff, on being
required by the Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be
barred by any law;
*****
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-papers shall not be
extended unless the Court, for reasons to be recorded, is satisfied
that the plaintiff was prevented by any cause of an exceptional
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nature from correcting the valuation or supplying the requisite
stamp-papers, as the case may be, within the time fixed by the Court
and that refusal to extend such time would cause grave injustice to
the plaintiff."
Section 8 of The Suits Valuation Act, 1887 :
8. Court-fee value and jurisdictional value to be the same in
certain suits.-Where in suits other than those referred to in the
Court-fees Act, 1870 (7 of 1870), section 7, paragraphs V, VI and
IX, and paragraph X, clause (d), Court-fees are payable ad
valorem under the Court-fees Act, 1870 (7 of 1870), the value as
determinable for the computation of Court-fees and the value for
purposes of jurisdiction shall be the same.
Section 7 of the Court Fees Act, 1870 :
Section 7. Computation of fees payable in certain suits.--The
amount of fee payable under this Act in the suits next hereinafter
mentioned shall be computed as follows:-
for money.- (i) *****
(iv) In suits--
*****
for a declaratory decree and consequential relief.-- (c) to obtain a
declaratory decree or order, where consequential relief is prayed,
*****
according to the amount at which the relief sought is valued in the
plaint or memorandum of appeal;
In all such suits the plaintiff shall state the amount at which he
values the relief sought.
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.1
******
Proviso inserted vidé Notification G.S.R. 842 dated 21st July 1959 issued by Ministry of Home Affairs,
extending Amendments to the Court Fees Act by State Amendments in Punjab in 1953, 1957 and 1958 to
the Union Territory of Delhi (as it then was).
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Article 17 of Schedule-II to the Court-Fees Act, as
applicable to Delhi :
Number ---- Proper fee
17. Plaint or memorandum of appeal
in each of the following suits:--
(i) *****
(ii) *****
(iii) to obtain a declaratory
decree where no
consequential relief is
prayed; Nineteen
(iv) ***** rupees fifty
(v) ***** naye paise.
(vi) every other suit where it is
not possible to estimate at
a money-value the subject-
matter in dispute, and
which is not otherwise
provided for by this Act.
Section 34 of the Specific Relief Act, 1963 :
"34. Discretion of court as to declaration of status or right.--Any
person entitled to any legal character, or to any right as to any
property, may institute a suit against any person denying or
interested to deny, his title to such character or right, and the court
may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any further
relief:
Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of
title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny"
a title adverse to the title of someone who is not in existence, and for
whom, if in existence, he would be a trustee."
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Section 31 of the Specific Relief Act, 1963 :
"(1) Any person against whom a written instrument is void or
voidable, and who has reasonable apprehension that such
instrument, if left outstanding may cause him serious injury, may
sue to have it adjudged void or voidable; and the court may, in its
discretion, so adjudge it and order it to be delivered up and
cancelled.
(2) If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also send a copy
of its decree to the officer in whose office the instrument has been so
registered; and such officer shall note on the copy of the instrument
contained in his books the fact of its cancellation."
(emphasis supplied)
15. Now, by way of the suit, the plaintiff seeks the following reliefs:
"a) Pass a decree in favour of the Plaintiff and against the
Defendants adjudging the Relinquishment Deed dated 24.01.2017
executed by the Defendant No.1 in favour of the Defendant No.2 and
registered at S. No. 436 in Book I Vol. 16774 on pages 16 to 19 on
27.01.2017 with the Office of Sub-Registrar-III, Delhi/New Delhi as
illegal, void and non est and directing the Defendants, jointly and
severally, to deliver up the said relinquishment deed and the same
be cancelled and intimation thereof be given to the said Sub-
registrar-III, New Delhi/appropriate Sub- Registrar;
(b) Pass a decree in favour of the Plaintiff and against the
Defendants adjudging the Relinquishment Deed dated 24.01.2017
executed by the Defendant No.1 in favour of the Defendant No.2 and
registered at S. No.437 in Book I Vol. 16774 on pages 20 to 23 on
27.01.2017 with the Office of Sub-Registrar-III, Delhi/New Delhi as
illegal, void and non est and directing the Defendants, jointly and
severally, to deliver up the said relinquishment deed and the same
be cancelled and intimation thereof be given to the said Sub-
registrar-III, New Delhi/appropriate Sub-Registrar;"
(emphasis supplied)
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16. For purposes of court fee and jurisdiction, as per averments contained
in para 57 of the plaint, the suit has been valued in the following way:
"57. The present suit has been filed seeking a declaration that the
Relinquishment Deeds executed by Defendant No. 1 are illegal, void
and non-est. The relief for declaration as claimed by the Plaintiff is
valued at Rs. 400/-, i.e. Rs. 200/- for declaration with respect to
each Relinquishment Deed and hence a court fee of Rs. 40/- has
been affixed thereon. The value of the present suit for the purposes
of jurisdiction amounts to Rs.4,50,00,000/-, which is the value of the
properties as per circle rate which are the subject matter of the
Relinquishment Deeds."
(emphasis supplied)
17. In law there is a distinction between a suit filed seeking a declaration
that a deed is void by someone who is not party to the deed versus a
suit seeking cancellation of a deed by someone who is party to the
deed. The law in this regard has been enunciated very lucidly by the
Hon'ble Supreme Court in Suhrid Singh (supra), para 7 whereof reads
as under:
"7. 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 relating 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 a 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
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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 the 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."
(emphasis supplied)
18. It is the plaintiff's case as stated in the plaint, that the plaintiff was
neither signatory nor executant nor party nor privy to the two
relinquishment deeds; and when examined in light of the law laid
down in Suhrid Singh (supra), the claim made is clearly for
declaration of the relinquishment deeds being void and not for
cancellation of the relinquishment deeds.
19. Furthermore, the defendant's contention that since, as per the
defendant's reading of the plaint, the plaintiff has sought a mere
declaration, in view of section 34 of the Specific Relief Act the suit is
not maintainable, is answered by section 31 of the Specific Relief Act,
which can be recapitulated:
Section 31 :
"(1) Any person against whom a written instrument is void or
voidable, and who has reasonable apprehension that such
instrument, if left outstanding may cause him serious injury, may
sue to have it adjudged void or voidable; and the court may, in its
discretion, so adjudge it and order it to be delivered up and
cancelled.
(2) If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also send a copy
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of its decree to the officer in whose office the instrument has been so
registered; and such officer shall note on the copy of the instrument
contained in his books the fact of its cancellation."
(emphasis supplied)
20. If there were any doubt as to the correct interpretation of section 31 of
the Specific Relief Act, that stands answered by the decision of a Co-
ordinate Bench of this court, cited by the plaintiff, in Anita Chandra
(supra), para 11 whereof reads as follows:
"11. A reading of the above provision would clearly show that the
Courts have tofirst adjudicate on the documents in challenge as
being void or voidable and thereafter order it to be delivered and
cancelled. The decree for (sic) the Court would therefore be one of
declaration and for a direction to the possessor of the documents to
deliver the same for it to be cancelled. The Courts would not, at the
time of passing of decree itself make such endorsement on the
documents merely because the documents are on the record of the
Court, thereby making the right of the unsuccessful party to appeal
against the said decree redundant. To hold otherwise would mean
that in case of success in the appeal, endorsement made by the Trial
Court on the documents in question would have to be cancelled
leading to the unwarranted mutilation of the document. Such a
course needs to be avoided."
(emphasis supplied)
meaning thereby, that when a declaration is sought that a
document be declared void, it should first be so declared; and
thereafter an order in the nature of a subsequent direction for
delivering-up and cancellation of the document be granted. The
decree would therefore be only one for declaration that the document
is void; but to effectuate that decree, a subsequent direction is issued
for delivering-up and cancellation of the void document, which is not
consequential relief but is part of the relief contemplated in section
31 of the Specific Relief Act. This is the correct reading of section
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31(1) and (2) of the Specific Relief Act, which provides for
'composite relief' once a document is declared void, viz. that after
declaring it so, the court may then direct it to be delivered-up and
cancelled.
21. To be sure, the 'cancellation' contemplated in section 31 is not a
decree for cancellation of any transaction that was valid, but is only
the act of physically noting on the document and on its registration
record, that having been declared void, the existence of the document
stands cancelled. The nuance here is, that a transaction held by court
to be void, does not require to be cancelled, since such transaction is
held to be a nullity, that is still-born.
22. Having put the plaint filed and the relief claimed through a careful
scrutiny, and in light of the position of law as expatiated by the
Hon'ble Supreme Court in Suhrid Singh (supra), this court is of the
view that the correct and meaningful reading of the prayers in the
plaint is that : the plaintiff has sought only a decree of declaration that
the two relinquishment deeds dated 24.01.2017 executed by defendant
No. 1 in favour of defendant No. 2 in respect of the two separate
properties, are void, non-est and illegal; and thereafter sought only a
subsequent direction that the defendants be directed to deliver-up the
relinquishment deeds; that the documents declared void be cancelled;
and intimation thereof be sent to the concerned Sub-Registrar of
Assurances.
23. In the above view of the matter, this court is of the opinion that the
objections taken by the defendants in the present application under
Order VII Rule 11 of the CPC are meritless; and no ground is made-
out for issuance of notice on the application.
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24. The application is, accordingly, dismissed in-limine.
CS(OS) 192/2021
25. List for further proceedings before the learned Joint Registrar on
20.04.2022.
ANUP JAIRAM BHAMBHANI, J
MARCH 29, 2022
ds
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