CR No. 4536 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 4536 of 2006 Date of Decision: 25.08.2009 Mohinder Singh & Anr. ...Petitioners Vs. Swaran Singh Grewal & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Bhatia, Advocate, for the petitioners. Mr.Rajesh Punj, Advocate, for respondent No.1. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This revision petition is directed against the order dated 27.2.2006 passed by the learned Civil Judge (Junior Division), Ludhiana dismissing the application moved under Order 7 Rule 11 of the Code of CR No. 4536 of 2006 2 Civil Procedure (for short the Code) for dismissing the plaint for want of advalorem court fee. The plaintiff/respondents filed a suit for declaration claiming that plaintiff and defendants No.1 to 3 were owners in joint possession of land measuring 84 kanals 4 marlas out of land measuring 385 kanals 15 marlas, whereas other defendants were owners in joint possession of the remaining land. The plaintiff claimed to be the owner of one third share. Learned trial court dismissed the application by recording as under:- “4. The present application has been filed by the defendants No.5, 8 to 11 and 13 under Order 7 Rule 11 CPC for the rejection of plaint on the ground that in this case, the plaintiff has sought the relief of setting aside gift deed dated 1.7.01 and also the sale deed executed by defendants but he has paid court fee only Rs.32.50ps, whereas he was required to pay advalorem court fee on the plaint and so the plaint be rejected. On the other hand, the contention raised by the plaintiff is that he is a co-sharer in the joint possession of the suit land and since the gift deed and sale deed are without consideration documents and he is seeking relief of declaration and injunction and thus, advalorem court fee on the value of gift deed and sale deed are not required to be affixed on the plaint. Perusal of file shows that the present suit has been filed by the plaintiff for declaration that he along with defendants No.1 to 3 is the CR No. 4536 of 2006 3 owner in joint possession and is entitled to be recorded as such in the revenue record and the gift deed dated 7.12.2001 is liable to be set aside. Since in the present case, the plaintiff is claiming the relief of declaration and injunction on the basis of existing title , so in my view, at this stage of the case, plaintiff is not required to pay any advalorem court fee of the value of gift deed or the sale deed. In this, I am supported by law, laid down by our own Hon'ble High Court in Ram Singh and others Vs. Labh Singh and others, 2006 (1) RCR (Civil), page 208. So in my view, at this stage of the case, it cannot be said that the suit filed by the plaintiff has not been properly valued and thus the plant is liable to be rejected. Decision on his application, in my view, is dependent or mixed question of law and facts and so I am of the view that the point can be decided only after framing of issues and when the parties will lead evidence in support of their respective claim. So the application under Order 7 Rule 11 CCPC is not having force and the same is hereby dismissed.” Mr.G.S.Bhatia, learned counsel appearing on behalf of the petitioner by placing reliance on the judgment of this court in the case of Ajmer Singh Vs. Punjab Singh (Minor) and another, 2007 (1) RCR (Civil) 436 contends that the impugned order cannot be sustained. It was contended that once the petitioner had challenged the judgment and decree passed in the civil suit titled as Mohinder Singh Vs. Jit Kaur as well as CR No. 4536 of 2006 4 gift deed dated 7.12.2001, plaintiffs were required to pay advalorem court fee. This contention of the learned counsel for the petitioner cannot be accepted as the gift deed and the alienation were challenged by the plaintiff where he was not a party the main relief in the case was to seek declaration of ownership and of joint possession in view of the law laid down by this court in the case of Raj Kumar & Ors. Vs. Shri Dadu Dayal Trust and others (2007-1) PLR 584, wherein this court has been pleased to lay down as under:- “15. It may be noticed here that the petitioners were not party to the sale deeds. Neither the sale deeds were executed by the Mandir on whose behalf the suit has been filed in the representative capacity. The sale deeds were executed by defendants No.1 to 3 in favour of other defendants on the basis of mutation sanctioned in their favour which according to the plaintiff was subsequently set aside. In these circumstances, it is held that defendants No.1 to 3 had no right to deal with the property of the Mandir and the mutation was rightly set aside by the revenue authorities. The cancellation of the sale deeds would be by way of consequential relief and not a substantive relief. 16. xx xx xx. 17. In view of what has been discussed above the impugned order passed by the learned Trial Court cannot be sustained CR No. 4536 of 2006 5 and it is accordingly set aside and the revision petition is allowed. The court fee payable, therefore, would be in terms of Section 7 (iv) (c) of the Court Fee Act and ad valorem court fee would not be payable as directed.” Similar view was taken by this court in the case of Ishwar Vs. Smt. Om Pati & Ors (2006-2) PLR 859, Dr.Ashok Kumar Goyal Vs. Arya Mittar and Ors. (2007-1) PLR 798 and Lala Ram Vs. Smt.Vidya Wati @ Vidya Devi (2006-2) PLR 352. The Hon'ble Full Bench of this court in the case of M/s Arjan Motors Vs. Girdhara Singh and others, 1978 Revenue Law Reporter 199 has been pleased to lay down, that the revision by the defendant on the question that proper court fee has not been paid by the plaintiff, is not competent. The order passed by the Hon'ble Full Bench reads as under:- “ The learned counsel for the petitioner states that in view of the latest judgment of their Lordships of the Supreme Court in Shamsher Singh Vs. Rajinder Prashad, the question of court fee cannot be agitated by his clients in this petition under section 115 of the Code of Civll Procedure. The petition is accordingly dismissed, without any order as to costs.” For the reasons stated above, the revision petition is ordered to be dismissed as not competent. (Vinod K.Sharma) 25.08.2009 Judge rp