Civil Revision No.8280 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.8280 of 2010(O&M) Date of Decision: March 16, 2011 Jaswinder Singh .....Petitioner v. Om Parkash .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Sugreev Kapoor, Advocate for the petitioner. Mr.A.S.Khinda, Advocate for the respondent. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 13.10.2010, passed by learned Additional Civil Judge, Senior Division, Kapurthala, Annexure P1, vide which application filed by petitioner- defendant under Order VII Rule 11 of the Code of Civil Procedure (hereinafter to be referred as the Code') for rejection of the plaint has been dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for declaration was filed by respondent-plaintiff against petitioner-defendant to the effect that he is owner in possession of the land measuring 19K-4M, duly described in heading of the plaint and that sale- deed dated 15.3.2010 with respect to the aforesaid land allegedly executed on his behalf in favour of defendant is not binding on him as the same is a result of fraud and undue influence, exercised upon him by the defendant with a consequential relief of permanent injunction restraining the petitioner-defendant from interfering in his possession over the land in dispute. Civil Revision No.8280 of 2010(O&M) -2- Notice of the suit was given to present petitioner-defendant. He appeared and filed an application under Order VII Rule 11 of the Code by taking the plea that as plaintiff has challenged the sale-deed dated 15.3.2010 executed by him in favour of defendant, he is required to affix ad valorem court fee on the plaint as per consideration of the sale deed. The application was contested by respondent-plaintiff and the same was dismissed by learned trial Court vide impugned order mainly on the ground that as relief of possession has not been claimed by respondent-plaintiff as a consequential relief, he is not required to pay ad valorem court fee on the sale consideration. It has been contended by learned counsel for the petitioner that as respondent-plaintiff is a party to the sale deed, which is sought to be cancelled, he is required to pay ad valorem court fee on the amount of consideration of the sale deed, irrespective of the fact as to whether he has sought relief of possession or not. On the other hand it has been contended by learned counsel for the respondent-plaintiff that he is required to pay ad valorem court fee only if he seeks relief of possession. Law on the point has been settled by Hon'ble Supreme Court of India in a recent judgment in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others, 2010(2) RCR (Civil) 564: 2010(2) RAJ 436 in which it has been specifically held that in case where plaintiff is seeking a declaration that the sale-deed is null and void and if he is a party to the sale-deed, he is required to pay ad-valorem court fee as per consideration of the sale deed, irrespective of the fact as to whether he has sought relief of possession or not. The relevant paragraph of the aforementioned judgment reads as under:- “6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non- executant seeks annulment of a deed, he has to seek a declaration that the deed in invalid, or nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' – two brothers. `A' Civil Revision No.8280 of 2010(O&M) -3- executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. 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 non-executant, 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. Section 7(iv)(c ) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief 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 Section 7.” Hence, in view of the abovesaid legal proposition settled by Hon'ble Apex Court, learned trial Court has committed illegality and material irregularity by not directing the respondent-defendant to pay ad valorem court fee on the sale consideration of the sale-deed, which is sought to be cancelled and grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, the present revision petition is accepted and impugned order is set aside. Respondent-plaintiff is granted two months' time from Civil Revision No.8280 of 2010(O&M) -4- today to affix the requisite ad valorem court fee, as per the consideration of the sale deed sought to be cancelled. Disposed of accordingly. 16.3.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.