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2009 DIGILAW 426 (PNJ)

Dharmender v. Om Parkash

2009-03-03

K.KANNAN

body2009
Judgment K.Kannan, J. 1. C.M. No. 3972-CII of 2009 Application allowed. Exemption from filing certified copy of Annexure P-4 is granted and same is taken on record. Civil Revision No. 1440 of 2008 1. In a suit filed for declaration and permanent injunction, the defendant moved an application for rejection of the plaint under Order 7 Rule 11 CPC stating the suit had not been properly valued and hence it was liable to be rejected. The trial Court partially accepted the contention and while not still rejecting the plaint, it found that the suit had not been properly valued and directed the court fee to be paid on the cancellation of two documents of sale referred to in the plaint and further finding that the suit valuation, if so adopted, would be beyond the jurisdiction of the trial Court directed the suit to be represented before the Honble District Judge, Rewari for appropriate orders. The plaintiffs are aggrieved against the order and have failed the civil revision petitioners before this Court. 2. Learned counsel appearing for the revision petitioners would contend that the reference to the sales by the first defendant in favour of the second defendant and others were without any right by him and being themselves not parties to the documents, the documents did not require to be set aside. There is consequently no need for paying ad valorem court fee. The second submission adverted to by the learned counsel was the relief of injunction which is sought for in the plaint is not consequential to the main relief of declaration and hence, the plaintiff is entitled to adopt notional valuation and pay the court fee as already done on the plaint. 3. As regards the first contention that the documents of sale were not required to be set aside since the plaintiffs were not either parties to the documents or persons claiming under the persons who were parties to the documents, I agree that there was no need for adopting the valuation of the properties for cancellation of the documents and pay court fee thereon. The learned counsel refers to several decisions with reference to them for which there is no dispute and I have no difficulty in following them. The learned counsel refers to several decisions with reference to them for which there is no dispute and I have no difficulty in following them. In Krishna Devi and another v. Jaswant Singh 2006 (4) RCR (Civil) 563, this Court held that a suit challenging the sale deed and claiming to have a decree for permanent injunction from getting the sale registered was not a suit seeking for cancellation of the document and hence ad valorem court fee was not payable. In Ravinder Kumar v. Narinder Kumar and others 2007(2) R.C.R. (Civil) 1, this Court held that the plaintiff who was not a party to the sale deed and decree was not bound by the acts of third party and hence the provisions of Section 7 (iv) (b) & (c) of the Court Fee Act were not attracted. The same was the proposition found in Bhupesh Kumar Sharma and others v. Manohar Kumari and others 2007(2) RCR (Civil) 784. A suit for declaration that sale deed executed by a defendant was null and void was again found by this Court in Smt. Beena and others v. Rajinder Kumar and others 2006 (2) RCR (Civil) 449 as not requiring payment of court fee for cancellation. 4. These decisions have no bearing at all to this case since the issue is not merely whether the plaintiffs are required to seek for cancellation of the documents. As I have already observed, the plaintiffs are not claimants under the first respondent, the plaintiffs themselves are not parties to the transaction to which the first defendant was a party. There is, therefore, no ground for requiring the plaintiffs to value the relief of cancellation of documents, as directed by the trial Court. However, it is still not possible for the plaintiff to adopt a notional valuation and allow the plaintiffs to evade payment of appropriate court fee under Section 7 (iv) (d) of the Court Fee Act, 1870. The reading of the plaint shows that the plaintiffs felt threatened by the action of the fraudulent and invalid sales made by the first defendant without any right over the properties. The relief of injunction was sought on the basis that the plaintiffs were owners and they were entitled to be protected in their possession by the relief of injunction. The reading of the plaint shows that the plaintiffs felt threatened by the action of the fraudulent and invalid sales made by the first defendant without any right over the properties. The relief of injunction was sought on the basis that the plaintiffs were owners and they were entitled to be protected in their possession by the relief of injunction. Here the injunction, which is sought by separately valuing the same was actually consequential to the relief of declaration. The declaratory suit which is sanctioned under Section 34 of the Specific Relief Act sets out as follows :- "34. Discretion of Court as to declaration of status or rights- 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." 5. The proviso in the above section clearly points out that no Court could grant merely a declaratory relief if the defendant being able to seek further reliefs omits to do so. This proviso makes the plaintiff to perforce seek a further relief than a mere declaration, whenever such further relief is necessary or consequential to the main relief. The plaintiff is aware that he cannot omit the relief of the injunction. There are definite averments in the plaint, which states that the plaintiffs title to the property was under cloud by the defendants invalid sale. The plaintiffs have expressed apprehension that if the defendants succeed in their actions which were against "law, unjustified and forcible", the plaintiffs would suffer irreparable loss, which could not be compensated in any manner and that the suit shall become infructuous. The learned counsel appearing for the plaintiffs labours under a mis-conception that a consequential relief shall be available only for relief of recovery of possession. He refers to decisions of this Court where it has been held that if the property is conceded to be in the possession of the plaintiff himself, there is no need for recovery of possession. The learned counsel appearing for the plaintiffs labours under a mis-conception that a consequential relief shall be available only for relief of recovery of possession. He refers to decisions of this Court where it has been held that if the property is conceded to be in the possession of the plaintiff himself, there is no need for recovery of possession. The reference to some of the decisions of this Court namely of Baljit Singh and others v. Arjan Singh and others, 2007(3) RCR(Civil) 198 : 2007(3) Civil Court Cases 319 that a suit on the basis of adverse possession seeking for a declaration, ad valorem fee is not payable or a suit by a plaintiff that he was the owner of the land and in possession; and a decree passed by Civil Court between third parties was illegal and not binding on the rights of the plaintiff was not required to be valued on the basis of the market price (Sita Wanti v. Yash Pal Singh @ Jaspal Singh, 2006(4) RCR(Civil) 564) have absolutely no bearing. First of all the decisions did not advert to Section 34 of the Specific Relief Act and further they were not dealing with the cases where the plaintiff was seeking for a declaration by virtue of the act of the defendant in creating documents that had the effect of empowering third parties to cause disturbance which the plaintiff was trying to stave off by filing the relief of declaration and hence consequently the relief of injunction was sought for. As I have already observed that the relief of injunction in this case could not have been disjoined from the relief of declaration. One followed the other as night was to day. The plaintiffs were, therefore, bound to treat the relief of injunction as consequential to the relief of declaration and pay court fee under Section 7 (iv) (d) of the Court Fees Act. The plaintiff could have had the benefit of a different valuation, if the property had been situate in rural area for which exemption was specifically available under the Haryana Court Fee Act. On the other hand, the Court below had considered the fact that the reading of impugned sale deeds and the plaint showed that the suit land was situated in gair mumkin abadi area. 6. On the other hand, the Court below had considered the fact that the reading of impugned sale deeds and the plaint showed that the suit land was situated in gair mumkin abadi area. 6. The civil revision petition is dismissed for different reasons than how it is stated by the Courts below. The plaintiffs are required to carry out proper valuation of the plaint treating the relief of injunction as consequential to the relief of declaration and pay appropriate court fee in a Court of competent jurisdiction under Section 7 (iv) (d) of the Court Fee Act. The plaintiff is given one months time to carry out the directions.