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2013 DIGILAW 373 (UTT)

Amrendra Singh v. Ram Singh

2013-06-24

PRAFULLA C.PANT

body2013
Judgment Prafulla C. Pant, J. Heard. 2. This appeal, preferred under section 104 of Code of Civil Procedure, 1908, read with Section 6A of the Court Fees Act, 1870, is directed against the order dated 23.06.2012 passed by learned Civil Judge (Sr. Div.) Nainital, in Civil Suit No. 103 of 2010, whereby said court has decided issue no. 5 relating to valuation of court fee of the suit, and held that the court fee paid by the plaintiff (present appellant) is insufficient and he was directed to amend the plaint and pay the court fee in accordance with the law. 3. Learned counsel for the plaintiff/appellant submitted that he had filed the suit for declaration of cancellation of sale deed dated 09.11.2010, as he was not party of said deed, as such the plaintiff had rightly paid court fee of Rs. 200/- on the declaratory decree sought by him. However, Section 7(iv-A) of Court Fees Act, 1870 reads as under:- For cancellation or adjudging void instruments and decrees- In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value:- (1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter, and (2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be - If the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates. Explanation:- ………………………………………………… 4. From the above provision it is clear that for cancellation of an instrument in which the plaintiff or his predecessor is in title was not the party, the plaintiff is required to pay court fee on the one-fifth of the market value of the subject matter (in the present case immovable property). Admittedly, the plaintiff has not paid court fee in accordance to provision of Section 7(iv-A) of The Court Fees Act, 1870. Admittedly, the plaintiff has not paid court fee in accordance to provision of Section 7(iv-A) of The Court Fees Act, 1870. The trial court has rightly held that the valuation and the court fee paid in the plaint is insufficient. 5. Learned counsel for the appellant drew attention of this Court to Clause (iii) of Article 17 of Schedule II of the Court Fees Act, 1870, and it is pleaded that in the case of declaratory decree only court fee of Rs. 200/- is required to be paid as mentioned in Clause (d) of Clause (iii) of Article 17 of Schedule II of the Court Fees Act, 1870. However, said provision is not applicable to the present case as a relief sought by the plaintiff is specifically covered under Section 7(iv-A) of the Court Fees Act, 1870. The view taken by the trial court also gets support from the principle of law laid down by the Apex Court in Shailendra Bhardwaj & others vs. Chandra Pal & another 2013(1) U.D. 272. 6. For the reasons as discussed above, this appeal is dismissed. If the court fee has not been paid by the plaintiff, the plaintiff is allowed to make good deficiency of the court fee within a period of sixty days from today. It is also clarified that in view of sub-section (2) of section 6A of Court Fees Act, 1870, the interim injunction if any granted by the trial court shall automatically stand discharged if the court fee is not paid as directed by this Court. (Stay application no. 7871 of 2012, miscellaneous application no. 10154 of 2012 and miscellaneous application no. 5328 of 2013 also stand disposed of).