Research › Search › Judgment

Punjab High Court · body

2023 DIGILAW 1565 (PNJ)

Anita Vij v. Deepak Kumar Vij

2023-05-02

NIDHI GUPTA

body2023
NIDHI GUPTA, J. Present Revision Petition has been filed by the petitioners/defendants seeking setting aside of order dated 17.05.2019 (pronounced on 28.05.2019 (Annexure P4)) passed by learned Civil Judge (Senior Division), Karnal, whereby petitioners’ application under Order 7 Rule 11 of Code of Civil Procedure, 1908 (for short “CPC”) has been dismissed. 2. Brief facts of the case are that respondents/ petitioners had filed a Suit for Declaration to the effect that sale deed No. 74/1 dated 02.04.2004, executed by Sh. Dharam Pal (who is father of petitioner No.2/defendant No.2 and the plaintiffs), in favour of petitioner No.1 (who is wife of petitioner No.2), is illegal, null and void being without consideration and being a result of fraud, undue influence, coercion etc. and therefore, was not binding upon the rights of the plaintiffs/respondents. Vide the said sale deed dated 02.04.2004, Sh. Dharam Pal had alienated house No.244-B/L, Model Town, Karnal (hereinafter referred to as ‘the suit property’), in favour of petitioner No.1. 3. It was inter alia, averred by the plaintiffs in the said Civil Suit (Annexure P-1), that Sh. Dharam Pal was absolute owner of the suit property and the petitioners were residing therein in the capacity of licensee. It was also mentioned that the plaintiff No.1/respondent No.1 herein was a citizen of England and living there for the last more than 35 years; and plaintiff No.2/respondent No.2 herein was also living in Delhi for the last more than 35 years in connection with his business. 4. Accordingly, respondents/plaintiffs sought a decree of declaration that the said sale deed dated 02.04.2004, be declared illegal, null and void and they be granted consequential relief of joint possession in respect of the suit property. 5. In the abovesaid Civil Suit, the petitioners filed an application under Order 7 Rule 11 read with Section 151 CPC for rejection of the plaint on the ground that the plaintiffs had affixed insufficient Court fees of Rs.25/- only whereas, as the plaintiffs were seeking relief of joint possession, they were liable to affix ad valorem Court fee at market value of the suit property of approximately Rs.1,33,00,000/-. Plaintiffs filed reply to the petitioners’ application stating that such application was just a ploy to delay the proceedings. Plaintiffs filed reply to the petitioners’ application stating that such application was just a ploy to delay the proceedings. However, vide impugned order dated 17.05.2019, learned Civil Judge (Senior Division), Karnal dismissed the petitioners’ application on the ground that plaintiffs were not a party to the impugned sale deed and therefore, they could not be compelled to pay the ad valorem Court fees. Hence, present Revision Petition. 6. It is submitted by learned counsel for the petitioners/defendants that Hon’ble Supreme Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Others Law Finder Doc ID # 209047 has unequivocally held that wherein a non-executant of sale deed is not in possession and he seeks not only declaration that the sale deed is invalid but also consequential relief of possession, he has to pay ad valorem Court fee as provided under Section 7(iv)(c) of the Court Fees Act, 1870. It is further submitted that present case is squarely covered by the law laid down by the Hon’ble Supreme Court in the above cited judgment. 7. No other argument is raised on behalf of the petitioners. 8. I have heard learned counsel for the petitioners. 9. Perusal of order sheets shows that notice was issued in the matter as far back as on 04.09.2019. Office report shows that subsequently counsel had filed Power of Attorney on behalf of the respondents. However, on 21.01.2020 there was no representation on behalf of the respondents/plaintiffs. As there was again no representation on behalf of the respondents/plaintiffs on 10.3.2023, this Court had directed the Registry to inform learned counsel for the respondents/plaintiffs. Office report shows that learned counsel for plaintiffs has been duly informed through e-mail about the date fixed. Despite that there is no representation even today on behalf of respondents/plaintiffs. Accordingly, respondents/plaintiffs are being proceeded against ex parte, and present matter is being heard and decided in their absence. 10. There can be no denying the established legal position in respect of the issue of Court fee in the present case. No doubt, respondents/plaintiffs are not the executants of the sale deed under challenge, however, perusal of their Civil Suit (Annexure P-1) clearly shows that they have filed a Civil “Suit for Declaration with consequential relief of Joint Possession”. Again in the prayer clause as contained in Para 19 of the plaint, the plaintiffs have prayed as follows: “19. No doubt, respondents/plaintiffs are not the executants of the sale deed under challenge, however, perusal of their Civil Suit (Annexure P-1) clearly shows that they have filed a Civil “Suit for Declaration with consequential relief of Joint Possession”. Again in the prayer clause as contained in Para 19 of the plaint, the plaintiffs have prayed as follows: “19. That the value of the suit for the purposes of Court fees and Jurisdiction is assessed Rs.200/- for declaration, so, Court fee of Rs.25/- has been affixed on the plaint. It is, therefore, prayed that a decree for declaration may kindly be passed to the effect that the sale deed No.74/1 dated 02.04.2004 is illegal, null and void, ineffective and inoperative, without consideration and the same is the result of fraud, misrepresentation of fact, undue influence and coercion and does not bind upon the of the plaintiff with a consequential relief of joint possession be passed in House No.244-B/L, Model Town, Karnal. Any other relief/relief's to which plaintiff is entitled and this Hon'ble Court deems fit and proper may also be awarded in favour of the plaintiff and against the defendant.” (emphasis supplied) 11. It is thus, clear that the respondents are seeking joint possession of suit property. 12. Accordingly, in view of above-cited judgment of Hon’ble Supreme Court in case of Suhrid Singh @ Sardool Singh (supra), it is clear that the plaintiffs are liable to pay ad valorem Court fee on the suit property. Relevant part of the said judgment is reproduced hereinbelow:- “6....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 nonexecutant 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...” 13. Thus, in view of the unambiguous legal position in this respect, the impugned order is liable to be set aside, and the present Revision Petition allowed. 14. Thus, in view of the unambiguous legal position in this respect, the impugned order is liable to be set aside, and the present Revision Petition allowed. 14. However, in the interest of justice, the respondents/plaintiffs are granted a time of 6 weeks from date of receipt of certified copy of this order, to make good the deficiency/deposit requisite Court fee in respect of the suit property; failing which their Civil Suit (Annexure P-1) will be deemed to be rejected as per provision of Order 7 Rule 11 CPC. 15. Pending application(s) if any also stand(s) disposed of. Petition allowed.