Rajinder Kaur vs Prem Kumar Gupta And Ors
2022 Latest Caselaw 12207 P&H

                                   119

                                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                                CHANDIGARH

                                                                                    CR-4080-2022 (O&M)
                                                                                    Date of decision : 27.09.2022


                                   Rajinder Kaur                                                        ... Petitioner(s)

                                                                          Versus

                                   Prem Kumar Gupta and Others                                     ... Respondent(s)



                                   CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                                   Present :         Mr. Arvinder Singh, Advocate for the petitioner.



                                   ALKA SARIN, J. (ORAL)

The present revision petition has been preferred under Article

227 of the Constitution of India challenging the order dated 26.07.2022

(Annexure P-8) to the extent whereby the defendant-petitioner has been held

liable to pay ad valorem court fee on the counter-claim filed by her.

Learned counsel for the defendant-petitioner has contended that

the defendant-petitioner was not liable to pay ad valorem court fee since she,

being the defendant in the present suit, had only filed a counter-claim and no

ad valorem court fee needs to be paid on the counter-claim. Learned counsel

in support of his argument has relied upon upon the judgment of this Court

in the case of Harbans Singh & Ors. Vs. Swaran Singh [2018 (1) Law

Herald 891].

Heard.

YOGESH SHARMA 2022.09.28 09:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh CR-4080-2022 (O&M) -2-

Order 8 Rule 6A of the Code of Civil Procedure, 1908 (CPC)

reads as under :

"6A. Counter-claim by defendant - (1) A defendant in a

suit may, in addition to his right of pleading a set-off

under rule 6, set up, by way of counter-claim against the

claim of the plaintiff, any right or claim in respect of a

cause of action accruing to the defendant against the

plaintiff either before or after the filing of the suit but

before the defendant has delivered his defence or before

the time limited for delivering his defence has expired,

whether such counter-claim is in the nature of a claim

for damages or not:

Provided that such counter-claim shall not exceed the

pecuniary limits of the jurisdiction of the court.

(2) Such counter-claim shall have the same effect as a

cross-suit so as to enable the Court to pronounce a final

judgment in the same suit, both on the original claim

and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written

statement in answer to the counter-claim of the

defendant within such period as may be fixed by the

court.

(4) The counter-claim shall be treated as a plaint and

governed by the rules applicable to plaints."

YOGESH SHARMA 2022.09.28 09:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh CR-4080-2022 (O&M) -3-

Order 8 Rule 6A(2) states that a counter-claim shall have the

same effect as a cross-suit so as to enable the Court to pronounce a final

judgment. Order 8 Rule 6A(4) states that the counter-claim shall be treated

as a plaint and governed by the rules applicable to the plaints, which would

necessarily entail the payment of court fee.

Hon'ble Supreme Court in case of Suhrid Singh @ Sardool

Singh Vs. Randhir Singh & Ors. [2010 (12) SCC 112] has held as under :

"6. 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 YOGESH SHARMA 2022.09.28 09:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh CR-4080-2022 (O&M) -4-

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

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."

In the present case, the defendant-petitioner is an executant of

the agreements to sell through her GPA holder. Though the counter-claim

has been filed for declaration that the alleged agreements to sell dated YOGESH SHARMA 2022.09.28 09:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh CR-4080-2022 (O&M) -5-

19.09.2017 and 15.10.2018 are illegal, null and void, however, in effect

what the defendant-petitioner is seeking is for cancellation of the said

agreements to sell. Merely by terming the counter-claim suit as for

declaration, the defendant-petitioner cannot avoid the payment of ad

valorem court fee. As per the law laid down by Hon'ble Supreme Court in

the case of Suhrid Singh @ Sardool Singh (supra), an executant of a

document, if he seeks to challenge the same, would necessarily have to seek

cancellation. Further, simply because the agreements were executed through

GPA holder, which fact is not denied in the present case, the defendant-

petitioner cannot avoid the payment of ad valorem court fee. The acts done

by the attorney would be considered as binding on the defendant-petitioner.

The judgment in the case of Harbans Singh (supra) relied

upon by learned counsel for the defendant-petitioner is totally

distinguishable on facts inasmuch as in the said case the relief sought in the

counter-claim was only for declaration. However, in the present case the

counter-claim is in effect for setting aside the agreements to sell dated

19.09.2017 and 15.10.2018 executed by the GPA holder of the defendant-

petitioner.

In view of the above, I do not find any illegality or infirmity in

the order passed by the Court below. The present revision petition, which is

devoid of any merit, is accordingly dismissed. Pending applications, if any,

also stand disposed off.

                                                                                       ( ALKA SARIN )
                                   27.09.2022                                              JUDGE
                                   Yogesh Sharma

NOTE : Whether speaking/non-speaking: Speaking Whether reportable: YES/NO YOGESH SHARMA 2022.09.28 09:38 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh