Civil Revision No.1550 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1550 of 2009 (O&M) Date of Decision 20.03.2009 Happy son of Late Sh.Ram Kumar and another ......petitioners VERSUS Ishwar Chand and others ......Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Sushil Bhardwaj, Advocate, for the petitioners. ***** A.N.JINDAL, J (ORAL): It is a petition under Article 227 of the Constitution of India for quashing the order dated 02.02.2009 passed by Additional Civil Judge (Senior Division), Karnal, whereby the petitioners have been directed to pay the ad-valorem Court fee. The prime question involved in the present case is whether the plaintiffs, (herein referred as 'the petitioners') who are the grand son and daughter in law of Sh.Lachman and son of Ram Kumar, having challenged the mortgage deeds and sale deeds, are liable to pay the ad-valorem Court fee as provided under Article 17 Schedule I Rule I of the Court Fees Act. The law on this point has been elaborately discussed in case A.I.R. 1967 Punjab Page 263 Jai Krishna Das and others Versus Babu Ram and others wherein it was observed as under:- “The question whether S. 7(iv) (c) or Article 17 of Schedule II Civil Revision No.1550 of 2009 (O&M) 2 of the Court Fees Act applies to a particular case must be determined according to the relief actually claimed in the plaint in a particular case and not on what relief the plaintiff should ask for in order to succeed. The question whether the suit would fail on account of the omission to ask for consequential relief is a question relating to the merits of the controversy and not relating to the payment of Court-fees on the plaint as filed in the Court. It is not open to the Court to import into the plaint or to read into it any relief which has not been asked for by the plaintiff only in order to levy higher Court-fees.” Thereafter, while taking into consideration the catina of judgments including the observations delivered in case Jai Krishna Versus Babu Ram (supra), the Full Bench of this Court in case Niranjan Kaur versus Nirbigan Kaur 1982 PLR 127 made following observations:- “It is the common case of the parties that in case the main relief in the suit is held to be that of cancellation of the sale deed then the case is not covered by Section 7(iv) (c) and the only provision applicable is Article 1, Schedule 1 of the Act. In order to bring the case under Section 7 (iv) (c) of the Act, the main and substantive relief should be that of a declaration and the consequential relief should be ancillary thereto. Moreover, if no consequential relief is claimed or could be claimed in the suit, then Section 7(iv) (c) will not be attracted. Section 7(iv) (c) clearly contemplates suits to obtain the declaratory decree or order where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at Civil Revision No.1550 of 2009 (O&M) 3 which he values the relief sought. A further proviso has been added thereto by the Punjab Act No.31 of 1953 which reads as under:- “Provided further that in suits coming under sub clause (c) in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this Section.” In a suit to obtain decree, where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act will be applicable but the suit filed by the plaintiffs-petitioners virtually, for all intents and purposes was for the cancellation of the sale deed, executed by her in favour of the defendant-respondents. They cannot claim possession unless the sale deed is cancelled by the said Court. Now, coming to the facts of the present case, this is a suit for declaration challenging the mortgage deeds and the sale deeds but it is apparently clear from the title clause as well as the prayer clause that the petitioners have not claimed any declaration of their rights in the property. The petitioners, in para No.10 of the plaint, have further submitted that they are not in possession of the suit property. However, they have also not claimed possession over the property, then the suit for declaration simpliciter for cancellation of gift deeds and sale deeds is not maintainable. The plaintiffs have also not claimed as to if they have right, title or interest in the property. Para No.15 regarding the value of the Court fee reads as under:- “The value of the suit for the purposes of Court fee & Civil Revision No.1550 of 2009 (O&M) 4 jurisdiction is assessed as Rs.200/- and so fixed court fee of Rs.25/- is affixed on the plaint. The plaintiffs want declaration for setting aside the mortgage deeds/sale deeds and not claim the possession, so no Court fee is payable.” From the aforesaid frame of the suit, it is clearly inferred that the petitioners have not claimed any rights but they have sought cancellation of the sale deeds or mortgaged deeds. The plaintiffs have not claimed if they have any antecedent right in the property. No doubt, in a suit filed by a member of a Coparcenary under Hindu law, the plaintiffs have to claim some right in the property and the documents transferring the property have no effect on their rights. In those circumstances, Court fee was not payable. The present is not such a suit. It is not the case where the main relief sought in the suit is for declaration of their rights after avoiding of the documents, where the ad-valorem Court fee is not required to be paid under Schedule-I Article 1. The law with regard to payment of ad-valorem Court fee is well settled. The party must have antecedent right, title or interest in the property and while getting such rights established, could challenge the said sale or gift transactions. In that situation, no ad-valorem Court fee was liable to be paid in cases, where a declaration of rights in the Coparcenary Hindu joint family property is sought, then certainly, Court fee was not required, however, when the plaintiff was to acquire right, title or interest in the property, after the transaction is cancelled, then certainly, he has to pay the ad-valorem Court fee on the market value of the property. Here in this case, neither such declaration has been sought nor any antecedent title has been claimed over the property, as such the judgments, as referred to by the learned counsel for the petitioners, are not applicable to the facts of the Civil Revision No.1550 of 2009 (O&M) 5 present case. The case of the petitioners is also not covered by the judgment of Smt.Beena and others versus Rajinder Kumar 2006 (2) PLR 6. Hence finding not merit in the present petition, the same is hereby dismissed. March 20, 2009 (A.N.JINDAL) mamta-II JUDGE