C.R. No. 37 of 2010 1 ******* IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 37 of 2010 Date of Decision : 21.07.2010 Yashpal Sharma .......... Petitioner Versus Sh. Ashwini Kumar Sharma & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Naveen Batra, Advocate for the petitioner. Mr. Pardeep Bedi, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to challenge an order dated 14.11.2009, passed by the learned Civil Judge (Sr.Div.), Chandigarh, on an application moved by the respondent / defendants under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint, for want of ad valorem Court fee. The petitioner claiming to be a co-parcener of joint Hindu family property, sought a declaration of ownership and joint possession by pleading therein, that the petitioner being interested in the property since his birth was not bound by the gift deed executed by Sh. Rattan Lal, father of the petitioner, qua his share. The defendants, on notice, appeared in the Court and filed an application under Order 7 Rule 11 of the Code of Civil C.R. No. 37 of 2010 2 ******* Procedure for rejection of the plaint, for want of ad valorem court fee. The plea raised by the defendant / respondents was, that as the petitioner is seeking declaration along with joint possession, therefore, he was liable to pay ad valorem court fee. The stand of the defendant / respondent further was that by clever drafting, the party can not by-pass the provisions of the Stamp Act to avoid payment of court fee. The learned counsel for the petitioner contended, that the petitioner is claiming his pre-existing right in the suit property being co-parcenary joint Hindu family property, therefore, had merely sought declaration, that his right would not be affected by a gift deed executed by their father, and has only prayed for joint possession, and therefore ad valorem court fee was not payable. In support of his contention, that the petitioner is not liable to pay the ad valorem court fee, the learned counsel for the petitioner placed reliance on the judgment of the Division Bench of this Court in Civil Revision No. 22 of 2009 titled “Dara Singh Vs. Gurbachan Singh and Others” decided on 3.5.2010, as also the judgment of the Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. 2010(2) R.C.R. (Civil) 564. The learned counsel appearing on behalf of the respondent also by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. (supra) contended that the petitioner was liable to pay the ad-valorem court fee, as he has filed a suit to get C.R. No. 37 of 2010 3 ******* gift deed declared as null and void and joint possession, though he is not in possession. The contention of the learned counsel for the respondent, was, that the impugned order deserved to be upheld, in view of the settled law, that the plaintiff by clever drafting can not over come the provisions of the Stamp Act. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. The Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. (supra), on which reliance was placed by both the learned counsel for the parties, the operative part 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 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- C.R. No. 37 of 2010 4 ******* 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. The contention of the learned counsel for the petitioner, that he falls in the category, that being a non-executant of document under challenge, his suit for declaration that the gift deed is null and void and not binding qua his share with joint possession, does not attract ad valorem court fee, whereas the learned counsel for the C.R. No. 37 of 2010 5 ******* respondent, on the other hand, contended that the petitioner is not in possession of the property, therefore, he is seeking declaration with consequential relief of possession, therefore, he is liable to pay ad- valorem court fee. The petitioner has sought declaration of gift deed to be null and void and not binding on the rights of the petitioner, and that he only claimed joint possession and not possession, therefore, it can not be said, that the ad-valorem court fee was required to be paid, on correct interpretation of the judgment of the Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. (supra). There is force in this contention of the learned counsel for the petitioner which deserves to be accepted. Consequently, this revision petition is allowed, impugned order is set aside. 21.07.2010 (VINOD K. SHARMA) 'sp' JUDGE