Punjab-Haryana High Court
Sukhdev Singh vs Karamjeet Singh & Ors on 6 December, 2022
RSA-4257 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-4257 of 2013 (O&M)
Date of decision: 06.12.2022
Sukhdev Singh ..Appellant
Versus
Karamjet Singh and others ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Ashish Aggarwal, Sr. Advocate, with
Mr. Vipul Aggarwal, Advocate and
Mr. Govind Chauhan, Advocate
for the appellant.
Mr. P.S.Jammu, Advocate
for respondent no.4 to 7.
ANIL KSHETARPAL, J(Oral)
1. The Regular Second Appeal in the States of Punjab, Haryana
and Union Territory, Chandigarh, is governed by Section 41 of the Punjab
Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure,
1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi
(Dead) through LRs vs. Chandrika and others, (2016) 6 SCC 157.
2. The appellant herein is one of the plaitniffs in the suit who has
challenged the orders dated 06.11.2009 and 23.02.2010, passed by civil
Judge ( Junior Division), Chandigarh. A suit filed in 2006 has been
dismissed by the trial court under Order VII Rule 11 of the Code of Civil
Procedure, 1908 on account of failure to pay the ad valorem court fee, when
the trial of the case was at the advance stage. In the impugned order, the
trial court has found that the correctness of various transfer deeds has been
challenged.
3. This Bench has heard the learned counsels representing the
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parties at length and with their able assistance perused the paper book.
The prayer clause of the plaintiffs' suit reads as under:-
"(i) A decree be issued to effect that: Plaintiff No.1
and 2 alongwith defendants no.1, 2, 3, 6 and 7 are the
only legal heirs of late Shri Uttam Singh as of the
properties described under:
i) Booth No.24 and 24/1,24/2,24/3, 24/4, 24/5,
Sector 27
ii) S.C.F. 14, Sector 20-D, Chandigarh.
iii) Booth No.32, Sector 20-D, Chandigarh.
iv) S.C.F. No.24, Sector 27-C, Chandigarh.
v) Kothi No.2054, Sector 21, Chandigarh, (RP
No.117373)
vi) Agriculture land situated in village Fattowal,
District Kapurthala, Punjab as per Jamabandi
enclosed herewith, such as No.20 and 21 of
Muraba NO.25, No.16, 17, 19, 20, 21, 22, 23, 24
and 25 consisting of nine (9) kilas of Muraba
No.26, 24 and 25 consisting of two (2) killas of
Muraba No.27, 5/2 share in Muraba No.33, No.1,
2, 3 and 9 of Muraba No.34.
(ii) And are entitled to succeed/inherit the properties
according to their share i.e the plaintiffs along with
defendant no.6 and 7 to the extent of ¼ share;
(iii) And further declaration to the effect that defendant
no.5 and 5-A who alleged to be the beneficiary of the
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Estate of Uttam Singh be kindly declared as nonest,
illegal, and further for declaration that they are not
entitled for the suit property further Mohinder Singh was
not the son of Uttam Singh. And that the documents if
any in respect of the benefit of defendant no.5 and 5-A,
out of the properties of Ganga Singh, Uttam Singh and
Mohinder Singh be treated as fake, invalid and illegal.
And further
Further suit for declaration that late Mohinder Singh was
not the son of Uttam Singh and the Will dated
08.09.1999, 20.07.1998, 29.07.1998 and any other
document purporting to be a Will be declared as forged
and fabricated in respect of the properties mentioned in
the body of the suit or the properties mentioned in the
alleged forged and fabricated Will.
And further
Any document which entitles the defendants no.5 and 5-
A to the estate of Ganga Singh and Uttam Singh be
declared as nullity.
And further
Suit for permanent injunction restraining the
defendant no.5 and 5-A from proclaiming herself to be
the owner of the properties as described in the body of the
plaint on the basis of the forged and fabricated Will and
further alienating or disposing off the properties in any
manner."
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4. It is evident from the reading of the prayer clause that the
plaintiffs in the suit have not sought annulment of any transfer deed which
was executed by them. The law on the subject is clear like a crystal. If the
executant wants annulment of the document which was executed by him
then, the suit is required to be filed under Section 31 of the Specific Relief
Act, 1963 for cancellation of document. Hence, in such suits, the ad
valorem court fee is payable. Reference in this regard can be made to a full
bench judgment of this court in Niranjan Kaur vs Nirbigan Kaur, AIR,
1981 P&H 368 and a judgment passed by the Supreme Court in Suhrid
Singh alias Sardool Singh vs. Randhir Singh and others, (2010) 12 SCC
112.
5. The learned counsel representing the respondents despite being
repeated opportunities failed, to draw the attention of the Court to any
provision in the Court Fees Act, 1870 which require the plaintiffs to pay the
ad valorem court fee.
6. The learned counsel representing the respondents submits that
the appellant, while prosecuting the appeal, has admitted the liability of the
plaintiffs in the suit, to affix the proper court fee on 10.10.2014. The order
dated 10.10.2014 reads as under:-
"Learned senior counsel for the appellant
contends that the plaint was rejected by the trial Court
under Order 7 Rule 11 of the Code of Civil Procedure, on
account of deficiency in Court fee, when the trial was
almost complete. Accordingly, even the appeal filed by
the plaintiffs was dismissed. Learned Senior Counsel,
without any prejudice to his case contends that the
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plaintiffs are ready and willing to affix the appropriate
court fee in terms of the order passed by the trial Court.
Notice of motion for 17.02.2015.
Process dasti as well."
7. It is evident that the learned senior counsel had offered to pay
the amount without prejudice to his case. Such a statement will neither
operate as estoppel against the appellant nor such statement can be treated as
admission on the plaintiff's part to pay the court fee.
8. Hence, the orders dated 06.11.2009 and 23.02.2010 are set
aside. The trial court is requested to proceed with the case. The trial court
shall have liberty to frame an issue on the question of payment of court fee
and decide the same, in accordance with law.
9. The appeal is allowed.
10. All the pending miscellaneous applications, if any, are also
disposed of.
December 06, 2022 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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