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2014 DIGILAW 1772 (PNJ)

Santra Devi v. Hari Singh

2014-12-19

BHARAT BHUSHAN PARSOON

body2014
JUDGMENT Dr. Bharat Bhushan Parsoon, J.: - This revision petition by the plaintiffs, petitioners herein, is directed against order dated 20.1.2005 of the lower court whereby they have been called upon to affix advalorem court fee upon the amount of sale deed in question by a particular date. 2. The petitioners-plaintiffs had filed a suit for seeking a declaration to the effect that the plaintiffs are co-owners, in equal share, to the extent of 7/24 share and are in joint exclusive possession with the defendant No.6, in respect of land detailed and described in para No.2 of the plaint and they are entitled to be recorded as such, by way of mutation in the revenue record, and in the alternative, decree for joint possession to the extent of 7/24 share in respect of the said land, had also been sought in favour of the plaintiffs and against the defendants with costs. Relief clause reads as under: “It is, therefore, humbly prayed that a decree for declaration to the effect that that the plaintiffs are co-owners, in equal share, to the extent of 7/24 share and are in joint exclusive possession with the defendant No.6, in respect of land detailed and described in para No.2 of the plaint and they are entitled to be recorded as such, by way of mutation in the revenue record, and in the alternative, decree for joint possession to the extent of 7/24 share in respect of the said land, may also kindly be passed in favour of the plaintiffs and against the defendants with costs. Any other relief which this Hon’ble Court deems fit and proper be also granted in favour of the plaintiffs.” 3. Hearing has been provided to the counsel for the petitioners while going through the paper book. 4. It is a matter of no dispute that for purposes of the court fee and jurisdiction, averments made in the plaint alone are to be looked into without making reference to the pleadings in the written statement. Perusal of the plaint, relief clause of which has already been appended above, leaves no manner of doubt that the suit is for declaration and not for cancellation of the sale deed. Perusal of the plaint, relief clause of which has already been appended above, leaves no manner of doubt that the suit is for declaration and not for cancellation of the sale deed. Perusal of the impugned order, however, reveals that the lower court of its own without any foundation in the pleadings of the plaintiffs took it to be a case of cancellation of the sale deed and called upon the plaintiffs to pay the advalorem court fee on the amount of the sale deed. 5. When the impugned order is read in relation to the pleadings of the plaintiffs in the plaint, it clearly transpires that the plaintiffs only seek declaration of their share with claim of joint possession of the land to the extent of 7/24 share as legal heirs-cum-successors of deceased Khazan Singh, who with his brother Prabhu son of Ami Lal was co-owner in joint possession in equal share of the suit land. 6. When the plaintiffs have neither sought cancellation of the sale deed nor have claimed exclusive possession and rather have invoked the jurisdiction of the court, only claiming the property to be joint Hindu family property and their share therein with relief of joint possession, no case for payment of advalorem court fee is made out. Reference in this regard may be made to the judgment of this Bench in S. Ajit Singh Kohar Versus Shashi Kant bearing CR No.5638 of 2014 decided on 25.8.2014. Relevant position of this verdict as under: 5. Reference in this regard may be made to the judgment of this Bench in S. Ajit Singh Kohar Versus Shashi Kant bearing CR No.5638 of 2014 decided on 25.8.2014. Relevant position of this verdict as under: 5. In a recent judgment of this Court dated 28.11.2013 in Civil Revision No. 7253 of 2013, interpreting Rule 11[c] of Rule VII CPC in identical circumstances relying upon the decision of Hon’ble Supreme Court in Sri Ratnavaramaraja vs. Smt. Vimla, AIR 1961 SC 1299 and Full Bench decision of this Court in Arjan Motors vs. Girdhara Singh and others, 1978 PLJ 36 , while observing that decisions in Saleem Bhai and others vs. State of Maharashtra and others, 2003(1) R.C.R.(Civil) 464 and P.K. Palanisamy vs. N. Arumugham and another, [2010(1) Law Herald (SC) 346] : 2010(1) R.C.R.(Civil) 129 were not applicable to the facts of the case, it has been held that when the trial Court has not come to a conclusion about quantification of damages to be recovered from defendant for defaming the plaintiff, damages could not be assessed by the plaintiff as this determination was to be made by the Court. Further, in Subhash Chander Goel Vs. Harvind Sagar, 2003 AIR 248 [Punjab], in similar circumstances, in a suit for damages for maligning reputation, it was held that since exact value of the relief to be granted could not be ascertained, affixation of court fee of Rs.50/- was acceptable. 6. Sequelly, the impugned order is set-aside leaving the petitioner to pay the court fee on the sum to be adjudicated as damages by the lower Court in due course of time, but not at this initial stage, notwithstanding that the petitioner though, leaving the entire matter to the court for adjudication of the quantum of damages, he himself has given the quantum of damages to be Rs.2.00 Crores.” 7. The observations of the lower court are far from the pleadings of the plaintiffs and did not engage the attention these deserved from it on the factual and legal point adverted to by the plaintiffs resulting in total miscarriage of justice on the question of payment of court fee. 8. Keeping in view the facts and circumstances as discussed earlier, neither being correct on facts nor in law, the impugned order dated 20.1.2005 (Annexure P-4) is set-aside. 9. 8. Keeping in view the facts and circumstances as discussed earlier, neither being correct on facts nor in law, the impugned order dated 20.1.2005 (Annexure P-4) is set-aside. 9. Sequelly, dismissing the application under Order VII Rule 11 CPC (Annexure P-2), this revision petition is allowed. 10. However, it is made clear that since the main suit pending before the lower court pertains to year 2001, the lower court is directed to decide the same within six months from the date of receipt of certified copy of this order. ---------0.B.S.0------------ —————————