Punjab-Haryana High Court
Gauri Shankar vs Smt Sushma And Ors on 8 August, 2024
Author: Vikas Suri
Bench: Vikas Suri
Neutral Citation No:=2024:PHHC:102570
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
130 CR No.670 of 2024
Date of decision: 08.08.2024
GAURI SHANKAR ...Petitioner
V/S
SMT SUSHMA AND ORS ...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS SURI
Present: Mr. Mohd. Jameel, Advocate
for the petitioner.
*****
VIKAS SURI, J.(ORAL)
1. The petitioner-Gauri Shankar through this petition under Article 227
of Constitution of India assails order dated 18.01.2024 (Annexure P-7), passed by
learned Civil Judge (Jr. Division), Rohtak, on an application under Order VII,
Rule 11 C.P.C., whereby plaintiff/petitioner has been directed to evaluate his suit
for court-fee and affix the requisite Court-fee.
2. Briefly stated, plaintiff-petitioner filed a suit seeking the following
relief:-
"It is, therefore, prayed that a decree for declaration to the
effect that the sale deed No.3103 dated 21.09.2021 registered in
the office of Sub Registrar Rohtak and subsequent mutation,
revenue record may kindly be declared as illegal, null and void,
same are not binding upon the rights of the plaintiff and the
plaintiff be declared owner and in possession of the property in
question as mentioned in the plaint.
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A decree for permanent injunction by way of restraining the
defendants from alienating transferring, mortgage or creating any
third party interest over the suit property in any manner may
kindly be passed in favour of plaintiff and against the defendant
with costs.
Any other relief to which plaintiff may be found entitled be
also granted".
3. Upon notice of the suit, respondent-defendant No.3, namely Smt.
Savita Alwa, moved an application under Order VII, Rule 11 CPC, seeking
rejection of the plaint for want of affixing proper Court-fee. It was pleaded that
plaintiff has filed a suit for declaration to the effect that sale deed dated
21.09.2021 and subsequent mutation on that basis be declared illegal, null and
void and not binding upon the rights of the plaintiff. It was further pleaded that
sale consideration recorded in the said sale deed executed by the plaintiff-
petitioner was Rs.15 lakh and he has not affixed ad valorem Court-fee as per the
aforesaid amount but has only affixed Court-fee of Rs.50/-. Petitioner filed reply
to the said application denying the averments made therein.
4. The trial Court after considering the pleadings and rival contentions,
in the light of the decision in Smt. Laxmi Devi vs. Ashok Kumar and others,
2019:PHHC:022738, which had applied and followed the dicta of Suhrid Singh
alias Sardool Singh vs. Randhir Singh and others, (2010) 12 SCC 112, directed
plaintiff-petitioner to evaluate the suit for the purposes of Court-fee and affix
necessary Court-fee thereupon.
5. Aggrieved by the aforesaid order petitioner has by way of the instant
petition invoked superintending jurisdiction of this Court.
6. Learned counsel for the petitioner contends that challenge to the sale
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deed is on the ground that a cheque for an amount of Rs.3,75,000/-, issued
towards part payment of sale consideration, was dishonoured and thus, said
payment of Rs.3,75,000/- remains unpaid as such. It is further submitted that
respondent-vendee had fraudulent intention from the very beginning and
impugned sale deed is an out-come of said fraud. The plaintiff-petitioner is not
required to affix ad valorem court-fee, as plea of fraud has been alleged. It is
further submitted that proceedings before the trial Court stand posted to
21.08.2024, for compliance with the impugned order.
7. Heard learned counsel for the petitioner and appraised the impugned
order as well as the material appended with the revision petition, with his able
assistance.
8. The question arising for determination in the instant revision is
whether ad valorem Court-fee is payable upon the suit challenging an instrument
of sale executed by the plaintiff, when the challenge is on allegation of fraud.
9. Perusal of the record shows that it is not disputed that plaintiff-
petitioner has sought the relief of declaration to the effect that sale deed dated
21.09.2021 be declared illegal, null and void, which sale deed is for consideration
of Rs.15,00,000/-. Further, perusal of the plaint also shows that the plaintiff-
petitioner has specifically averred that the value of the suit for purpose of
jurisdiction is Rs.400/- and accordingly, Court-fee of Rs. 50/- has been affixed on
the suit.
10. The question noticed herein-above is no longer res integra. The first
part of the question stands settled by the Apex Court in Suhrid Singh alias
Sardool Singh's case (supra), wherein it has been held that if the executant of the
deed seeks its cancellation, he has to pay ad valorem court-fee on the
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consideration stated in the impugned sale deed. The relevant portion of the said
judgment reads as thus:-
"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 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.
8. 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".
10. In Smt. Laxmi Devi's case (supra), challenge was to the order
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directing plaintiff to affix ad valorem Court-fee being the executant of the
impugned deed, which was sought to be challenged on the ground of fraud. In the
said case, it was held by a coordinate Bench, even if plaintiff/petitioner sues on
the basis of fraud, even then, in view of the law laid down by the Apex Court in
M/s Omax Construction Ltd. vs. Dharam Singh and others, CA No.8880 of
2015, decided on 26.10.2015, Court-fee has to be paid by the plaintiff according to
first principle of Suhrid Singh alias Sardool Singh's case (supra). The second
part of the question also stands answered by the ratio of the above decision.
11. In view of the above discussion, I am of the considered view that the
trial Court has not committed any illegality or acted with material irregularity
while passing the impugned order dated 18.01.2024, directing the plaintiff-
petitioner to evaluate his suit for the purposes of court-fee and affix court-fee in
terms of the law laid down in Suhrid Singh alias Sardool Singh's case (supra).
The impugned order is a well reasoned order and neither does it suffer from any
jurisdictional error nor any has been pointed out, which calls for interference by
this Court under Article 227 of the Constitution of India.
12. Accordingly, the petitioner having failed to make out any ground to
warrant interference, the revision petition being bereft of merit, is dismissed in
limine.
(VIKAS SURI)
August 08, 2024 JUDGE
Poonam Sharma
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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