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2012 DIGILAW 1424 (PNJ)

Nirmal Singh v. Jagdev Singh

2012-10-08

M.JEYAPAUL

body2012
JUDGMENT Mr. M. Jeyapaul, J.: (Oral) - The defendant filed an application invoking the provision under Order 7 Rule 11 of the CPC praying to reject the plaint on the ground that ad valorem court fee had not been paid by the plaintiff. The said application was dismissed by the trial Court on the ground that in the facts and circumstances of the case, the provision under Section 7(vi)(c) of the Court Fees Act, 1870 (for short ‘the Act’) would not apply to the case on hand. 2. The plaintiff filed a suit for declaration that the sale deed alleged to have been executed in favour of the defendants on 25.6.2008, is null and void and is not binding on the plaintiff. 3. It is to be noted that the plaintiff has not sought for any consequential relief based on such declaratory relief he has sought. 4. The trial Court having found that no consequential relief was sought to attract ad valorem court fee under Section 7(vi)(c) of the Act, dismissed the said application. 5. Learned counsel appearing for the revision petitioner would submit that though the suit has been filed for declaration that the sale deed executed in favour of the defendants is null and void and is not binding on the plaintiff, the entire pleadings in the plaint will have to be seen to assess the liability of the plaintiff to pay the proper court fee under the Court Fees Act. Referring to the decision of the Hon’ble Supreme Court in Suhrid Singh @ Sardool Singh vs. Randhir Singh and others, [2010(2) Law Herald (SC) 1371 : 2010(2) Law Herald (P&H) 1356 (SC)] : 2010 AIR (SC) 2807, he would submit that in a case where an executant comes forward with a prayer for declaration that the subject sale deed is null and void, he shall be liable to pay ad valorem court fee under Section 7(vi)(c) of the Act. 6. In the aforesaid decision, the Hon’ble Supreme Court has observed as follows in para 6 of the judgement:- “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. 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 nonest/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 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 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. Section 7(vi)(c) of the Court Fees Act would read that the suit filed for obtaining a declaratory decree where the consequential relief is prayed, ad valorem court fee shall be fixed and collected. But in the aforesaid case dealt by the Hon’ble Supreme Court it is found that the plaintiff had sought for declaration that the subject sale deeds executed by the father of the plaintiff in favour of the first defendant were null and void. He has also sought for consequential relief of injunction restraining the defendants from alienating the suit properties. 8. Learned counsel appearing for the appellant also refers to a decision of this Court in Shakuntla vs. Rohtas and others, (2008) 4 RCR (Civil) 80, wherein it has been held that in a suit filed for declaration that the sale deed was obtained from the plaintiff by playing fraud upon him, the petitioner shall be required to affix ad valorem court fee. 9. In my considered view, the aforesaid decision would not apply to the facts and circumstances of this case where no consequential relief was sought for either directly or indirectly. Further it appears that there was no occasion to deal with such a situation in the aforesaid case. 10. In my view, the trial Court has rightly held that in a suit which has been filed for declaratory relief without seeking any consequential relief directly or indirectly, the plaintiff is not bound to pay ad valorem court fee as per the mandates of Section 7(iv)(c) of the Court Fees Act, 1870. 11. I do not find any merit in the revision petition. Therefore, the revision fails and stands dismissed.