Karan Singh vs Bijender Singh And Another on 5 August, 2009

C.R.No.5120 of 2008


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH


                                   C.R.No.5120 of 2008
                                   Decided on August 05, 2009.


Karan Singh

                                                            .. Petitioner

                 VERSUS


Bijender Singh and another.

                                                        .. Respondents

                       ***

CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI


PRESENT          Mr.Ashwani Bakshi, Advocate,
                 for the petitioner.

                 Mr.Mohnish Sharma, Advocate, for
                 Mr.Narender Hooda, Advocate,
                 for the respondentss.


M.M.S. BEDI, J. (ORAL)

The plaintiff-petitioner has filed a suit for declaration

and consequential relief of permanent injunction claiming that sale

deed dated 13.06.2000, is illegal, null and void, on the ground that a

fraud has been played by the defendants-respondents upon the

plaintiff. The defendants-respondents had moved an application

under Order 7 Rule 11 CPC, for a direction to the petitioner to pay

Court fee on the sale consideration of Rs.8,25,000/- and the said

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C.R.No.5120 of 2008

application was allowed vide order dated 28.03.2006, directing the

plaintiff-petitioner to pay ad valorem Court fee on Rs.8,25,000/-. The

said order led the petitioner to file an application under Order 33

Rule 1 CPC. In his application, he pleaded that he is a poor person

and not possessed of sufficient means. After obtaining report of the

Collector, the trial Court observed that out of 40 kanals of land

owned by him, he has sold 13 kanals 1 marla. No appeal against the

order on application under Order 7 Rule 11 CPC, was filed but the

application under Order 33 Rule 1 CPC, was filed which has been

dismissed by a common order dated 31.05.2008, allowing the

application under Order 7 Rule 11 CPC, filed by the defendant-

respondent. It is pertinent to observe here that the order rejecting

the application for permission to sue as an indigent person is

appealable order under Order 43 Rule 1 (a) CPC. The petitioner has

not opted to file any appeal against the order but since the

application of the respondent under Order 7 Rule 11 CPC, for

dismissal of the suit for want of Court fee has been allowed, the

plaintiff cannot file an appeal against the said order under Order 43

Rule 1 (a) CPC.

The sole point which is required to be determined in

this case is, whether the petitioner is required to affix ad valorem

Court fee, as he is challenging the validity of a registered document.

In this context, counsel for the respondent has placed reliance on

Niranjan Kaur Vs. Nirbigan Kaur, 1982, PLR, Page 127, the Full

bench Judgment of this Court, in which it was held that in case the

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main relief in the suit is held to be the cancellation of sale deed the

case is not covered by Section 7(1)(iv)(c) of the Court Fees Act,

1870. It is settled principle of law that that the Court in deciding the

question of Court fee should look into the allegations made in the

plaint to find out what is the substantive relief that is asked for. A

perusal of the plaint in the present case indicates that the plaintiff

has claimed that he is owner in possession of the property in dispute

and that he has not sold the same vide sale deed dated 13.06.2000.

The plaintiff has not claimed possession of the property in dispute,

as such, the matter will be covered by the decision of this Court in

Krishna Devi and another Vs.Jaswant Singh, 2006(4) RCR

(Civil), page 563, in which taking into consideration Niranjan Kaur’s

case, it was held that when the plaintiff challenges the sale deed and

claims a decree for permanent injunction only and the relief of

possession is not the consequential relief, ad valorem Court fee will

not be payable. In Niranjan Kaur’s case (supra), the plaintiff had

sought the consequential relief of possession in a suit for declaration

as the plaintiff was not in possession. It was held in Niranjan Kaur’s

case that under said circumstances only when possession is

claimed as a consequential relief, the ad valorem Court-fee is

required to be paid as contemplated under Article 1 Schedule 1 of

the Court Fees Act. The facts and circumstances of the present case

are covered by the ratio of Krishna Devi and another’s case (supra).

Since the plaintiff has not claimed possession as a consequential

relief and he has challenged the sale deed regarding agricultural

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C.R.No.5120 of 2008

land in Haryana, ad valorem Court fee will not be payable. The

impugned order dated 31.05.2008, is hereby set aside.

The parties are directed to appear before the trial

Court, for further proceedings, in the case on 12.09.2009.

The revision petition is allowed.

(M.M.S.BEDI)
JUDGE
August 05, 2009.

rka

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