IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.5171 of 2008 (O&M) Date of Decision : 2.12.2010 Ramneek Kaur and others ....Petitioners Versus Shanti Devi and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Sarjit Singh, Sr. Advocate with Mr.Vikas Singh, Advocate for the petitioners. Mr.K.S.Chahal, Advocate for respondents No.1, 4, 5, 7 to 9, 13, 17 and 19. Mr.Arvind Rajotia, Advocate for respondent No.10. ..... MAHESH GROVER, J. This petition is directed against the order dated 17.7.2008 by which the petitioners have been directed to pay advalorem court fee. The facts of the case may be noticed in brief. The petitioners are daughters of one Gurbax Singh whose brother Gurdev Singh was owner of 40 bighas 15 biswas of land. He executed a Will dated 5.3.1980 in favour of the present petitioners and after his death they became the owners of the estate of Gurdev Singh. One Ravinder Singh set up a Will in his favour pertaining to the estate of Gurdev Singh and a dispute arose inter se between the parties. Eventually a C.R.No.5171 of 2008 (O&M) -2- compromise was effected wherein it was agreed that the petitioners shall retain 55% while 30% will go to Ravinder Singh and 15% will go to Manlochan Kaur. Ravinder Singh thereafter sold some property from his share of 30% to the respondents. The petitioners have challenged the sale deeds in their favour. During the pendency of the suit objection was raised that advalorem court fee has not been affixed which prayer was accepted by the court vide order dated 17.7.2008 and the petitioners were granted time to deposit the advalorem court fee. The petitioners make a grievance by this petition and state that they were not a party to the sale deeds and they were not required to pay advalorem court fee. Reliance was placed on Mohinder Singh and another v. Swaran Singh Grewal and others (2009-4) P.L.R. 33. The contention is opposed by the learned counsel appearing for the respondents who states that a perusal of the plaint reveals that the petitioners have also sought possession of the disputed property and that further the description of the property as given in the plaint reveals that there are houses existing on the suit property and in such an eventuality the petitioners cannot escape the liability to affix the advalorem Court fee. Reliance has been placed on Niranjan Kaur v. Nirbigan Kaur 1982 Punjab Law Reporter 127 (Full Bench) wherein it was held as under :- “ Held, that it is well settled that the Court in deciding the question of Court fee should look into the allegation made in the plaint to find out what is the substantive relief that is asked for. Mere astuteness in C.R.No.5171 of 2008 (O&M) -3- drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. Thus, in each case, the Court has to find out the real relief claimed by the plaintiff in the suit. Where the main relief is that of the cancellation of the deed, and the declaration , if any, is only a surplusage, the case would not be covered under section 7(iv)(c) of the Act. Because in a suit under that clause, the main relief is that of a declaration and the consequential relief is just ancillary. Held, further, 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 I 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. To say in the plaint, that it be declared that the sale deed, got executed from her as a result of the fraud was void and not binding on her, does not convert the suit into one for a declaration with the consequential relief of possession so as to fall within the provisions of section 7 (iv)(c) of the Act. To such a suit, the only Article applicable is article 1, Schedule I.” If the plaint is to be seen then in para 5 of the plaint it has C.R.No.5171 of 2008 (O&M) -4- been categorically stated that the plaintiffs are entitled to the possession of the property, but in the prayer clause they have very cleverly avoided the relief of possession by saying that their suit be decreed and any other relief of which they are entitled may be granted in their favour. This, in the opinion of the Court, is a clever ploy to overcome the requirements of law. Besides, the property has been mentioned as constructed houses and the description of the same is given. In this eventuality, the impugned order cannot be said to be suffering from any infirmity. The petitioners, who sought the relief of possession of the property sold to the respondents, cannot thus evade the requirement of affixation of advalorem Court fee. The petition is, therefore, without any merit and is dismissed. 2.12.2010 (MAHESH GROVER) JUDGE dss