CR No.6046 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.6046 of 2009 (O&M)
Date of Decision: 21.10.2009
Shanti ...Petitioner
Vs.
Satpal ..Respondent
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Rishav Jain, Advocate,
for the petitioner.
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Vinod K.Sharma,J. (Oral)
The petitioner has invoked the jurisdiction of this court under
Article 227 of the Constitution of India to challenge the order dated
21.8.2009 passed by the learned Additional Civil Judge (Senior Division)
Safidon vide which application made by the defendant-respondent for
rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure
(for short the Code) for want of appropriate court fee was allowed.
The plaintiff/petitioner filed a suit for declaration to the effect
that she was owner in possession of agricultural land measuring 28 kanals
12 marlas at village Singhana Tehsil Safidon District Jind. She has also
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challenged the sale deed No.1609 dated 18.9.2006 executed by the plaintiff
in favour of the defendant and the mutation sanctioned. The sale deed was
said to be illegal, null and void and result of fraud and misrepresentation
and not binding on the rights of the plaintiff. Consequential relief of
permanent injunction was also sought.
The defendant/respondent filed an application under Order 7
Rule 11 of the Code for rejection of the plaint for want of ad valorem court
fee. Learned trial court held that as the main relief claimed by the petitioner
was to set aside the sale deed, therefore, ad valorem court fee was
payable.The application was allowed and the petitioner was given time up
to 25.9.2009 for making good the court fee.
Learned counsel for the petitioner contends that the impugned
order cannot be sustained as the petitioner had not claimed possession as a
consequential or substantial relief, therefore, the simpliciter suit for
declaration was not to attract ad valorem court fee. In support of this
contention, reliance was placed on the judgment of this court in the case of
Teja Singh Vs. Smt.Amar Kaur & Ors. (2008-1) PLR 209.
On consideration of matter I find no force in this contention of
the learned counsel for the petitioner. Judgment of this court in the case of
Teja Singh Vs. Smt.Amar Kaur & Ors. (supra) has no application to the
facts of the present case, as the plaintiff in the suit has challenged the sale
deed, executed by her, on the plea of fraud and misrepresentation. The main
relief claimed is for setting aside the sale deed. It is well settled law that by
clever drafting the plaintiff cannot avoid the payment of court fee. In the
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present case in the absence of setting aside of the sale deed which was
admittedly executed by the plaintiff/petitioner no relief of declaration would
be available to her.
The Hon’ble Full Bench of this Court in the case of Niranjan
Kaur Vs. Birbigan Kaur 1981 PLJ 423, has laid down that a suit for
cancellation of document or declaring the document as void by a party to a
document, is covered under Article I Schedule I and therefore, ad valorem
court fee would be payable.
Again this court in the case of Himanshu Vs. Kamlesh Rani
2005 (1) CCC 337 was pleased to lay down that when the plaintiff seeks
cancellation of sale deed then ad valorem court fee would be payable.
No fault can, therefore, be found with the judgment passed by
the learned court below.
Faced with this situation learned counsel for the petitioner
placed reliance on the decision of this court in CR No.6697 of 2007 titled
Sunil Kumar Vs. Bhim Singh & Anr., decided on 27.4.2009 wherein this
court was pleased to direct that it would be appropriate for the learned court
below to frame an issue regarding valuation of claim in a suit and record a
finding thereon and thereafter issue of court fee could be decided.
This judgment is also of no help to the petitioner as it cannot
be treated to be a precedent, as the order has been passed on the facts of that
particular case. Once the reading of the plaint itself shows that the
petitioner was seeking cancellation of sale deed, the ad valorem court fee
would be payable as per the settled law.
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No ground is made out to interfere with the impugned order.
No merit.
Dismissed.
(Vinod K.Sharma)
21.10.2009 Judge
rp