Punjab-Haryana High Court
Rajan And Another vs Sunita Rani on 25 September, 2024
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
135 CR-213-2024 (O&M)
Reserved on : 10.09.2024
Date of Decision : 25.09.2024
Rajan and Another ....Petitioners
VERSUS
Sunita Rani ....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Saurabh Kaushik, Advocate for the petitioners.
ALKA SARIN, J.
1. The challenge in the present revision petition under Article 227
of the Constitution of India is to the order dated 24.11.2023 passed by the
Trial Court whereby the application under Order VII Rule 11 of the Code of
Civil Procedure, 1908 (for short 'CPC') read with Section 151 CPC has been
dismissed.
2. The brief facts relevant to the present lis are that the plaintiff-
respondent filed a suit for declaration to the effect that the sale deed dated
03.08.2017 in favour of defendant-petitioner No.1 and the transfer deed
dated 31.07.2020 executed by the defendant-petitioner No.1 in favour of his
wife defendant-petitioner No.2 are illegal, null and void and are a result of
fraud and misrepresentation. A decree of permanent injunction was also
sought for restraining the defendant-petitioners from changing the nature of
the suit property and from obstructing the plaintiff-respondent from using
the suit property and dispossessing her and for restraining the defendant-
petitioners from further alienating the suit property. It was averred that
though the entire sale consideration was paid by the plaintiff-respondent
integrity of this order/judgment
while purchasing the suit property on 03.08.2017, the sale deed had been
registered in the name of the defendant-petitioner No.1 who had
subsequently transferred it in favour of his wife defendant-petitioner No.2.
3. An application was filed by the defendant-petitioners under
Order VII Rule 11 CPC for rejection of the plaint inter-alia on the ground
that the plaintiff-respondent had failed to affix the ad valorem court fee on
the value of the suit property as mentioned in the sale deed. A reply was
filed by the plaintiff-respondent. Vide the impugned order the Trial Court
dismissed the said application.
4. Learned counsel for the defendant-petitioners has contended
that since the plaintiff-respondent had sought a declaration regarding the sale
deed dated 03.08.2017 and the transfer deed dated 31.07.2020, she is liable
to affix ad valorem court fee on the market value of the suit property or
atleast the value as mentioned in the sale deed. It is submitted by cleverly
wording the plaint that the plaintiff-respondent cannot avoid payment of ad
valorem court fee.
5. I have heard learned counsel for the defendant-petitioners.
6. A reading of the plaint reveals that the sale deed dated
03.08.2017 is not in favour of the plaintiff-respondent though she had
allegedly paid the sale consideration. The plaintiff-respondent has alleged
fraud on the part of the defendant-petitioner No.1. The plaint also reveals
that the plaintiff-respondent is not seeking possession of the suit property
and has rather sought an injunction for restraining the defendant-petitioners
from dispossessing her. Hon'ble Supreme Court in the case of Suhrid Singh
@ Sardool Singh vs. Randhir Singh & Ors. [2010(12) SCC 112] has held
as under :
integrity of this order/judgment
"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
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
integrity of this order/judgment
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."
7. The plaintiff-respondent is not the executant of the sale deed
dated 03.08.2017 or the transfer deed dated 31.07.2020. She has made the
averments in the plaint regarding her possession of the suit property and is
not seeking its possession in the plaint. That being so, there is no escaping
from the law laid down by the Hon'ble Supreme Court in the case of Suhrid
Singh @ Sardool Singh (supra). It has clearly been held in the case of
Suhrid Singh @ Sardool Singh (supra) that it is only a person who is a
non-executant and is in possession and sues for a declaration that the deed is
null or void, who would not have to affix ad valorem court fee and in case a
person being a non-executant is not in possession, who seeks possession, in
that case he would have to affix ad valorem court fee.
8. In view of the above and keeping in view the law laid down by
Hon'ble Supreme Court in case of Suhrid Singh @ Sardool Singh (supra),
there is no illegality or error of jurisdiction in the impugned order dated
24.11.2023 passed by the Trial Court. I do not find any merit in the present
integrity of this order/judgment
revision petition and the same is dismissed. Pending applications, if any,
also stand disposed off accordingly.
jk
NOTE : Whether speaking/non-speaking : Speaking
Whether reportable : YES/NO
integrity of this order/judgment
