CR No.2194 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2194 of 2011 Date of decision: 05.12.2011 Mool Chand . .. Petitioner Versus Rajender and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Ram Pal Verma, Advocate for the petitioner. Mr. Harkesh Manunja, Advocate for the respondents. Ajay Kumar Mittal,J. 1. The plaintiff-petitioner feeling aggrieved by the order of the trial court whereby the trial court has allowed the application filed by the defendant-respondent Nos.1 and 2 under Order 7 Rule 11 of the Code of Civil Procedure (in short, “the Code”) directing the plaintiff-petitioner to pay ad-valorem court fee in the suit filed by him for declaration and consequential relief of possession, has filed the present revision petition under Article 227 of the Constitution. 2. Briefly, the facts may be noticed. Jeet Ram, father of the petitioner agreed to sell his agricultural land measuring 3 kanals 18 1 CR No.2194 of 2011 marlas to defendant-respondent Nos. 1 and 2 and sale deed was got executed and registered on 11.9.2002. Jeet Ram being illiterate person, the defendant-respondent Nos. 1 and 2 fraudulently obtained thumb marks of Jeet Ram on blank affidavit to the effect that he had also exchanged his agricultural land with that of the defendant- respondent Nos. 1 and 2. When Jeet Ram came to know about this, he filed suit for declaration and possession. During the pendency of the suit, the defendant-respondent Nos. 1 and 2 filed an application under Order 7 Rule 11 of the Code of Civil Procedure (in short, “the Code”) praying for rejection of the plaint on the ground of not affixing proper court fees/ad-valorem fees as per market value of the suit land. The application was contested by the petitioner by filing reply. The trial court allowed the said application vide order dated 21.2.2011 impugned herein and directed the petitioner to pay the proper court fee as per the market value of the suit land. Hence this revision petition. 3. Learned counsel for the petitioner submitted that the primary relief of the petitioner was declaration regarding ownership of the property on the basis that the exchange deed dated 11.9.2002 in favour of the defendant-respondents was bad. It is only consequential relief that the possession has been claimed. 4. Opposing the prayer and supporting the order passed by the trial court directing the petitioner to pay ad-valorem court fee, counsel for the defendant-respondents, on the strength of judgment of the Apex court in Suhrid Singh @ Sardool Singh v. Randhir Singh and others, AIR 2010 SC 2807, submitted that where declaration was sought and the plaintiff was not in possession and consequential 2 CR No.2194 of 2011 relief of possession had also been claimed, the plaintiff-petitioner was required to pay ad-valorem court fee in accordance with Section 7(iv) (c ) read with Section 7(v) of the Court Fees Act, 1870 (in short, “the Act”). 5. After hearing learned counsel for the parties, I do not find any merit in the revision petition. The Apex court in Suhrid Singh’s case (supra) in para 6 had noticed 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 is invalid, or non est, 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' 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 3 CR No.2194 of 2011 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.” 6. A perusal of the aforesaid clearly shows that where the plaintiff sues for declaration that the deed is null or void and is not in possession, he is required to pay ad-valorem court fee as provided under Section 7(iv) (c) of the Act. 7. No illegality or perversity could be pointed out in the order of the trial court warranting interference by this Court under Article 227 of the Constitution. 8. Finding no merit in the revision petition, the same is dismissed. December 05, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4