CR No. 6697 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6697 of 2007 (O&M) Date of decision: 27.4.2009 Sunil Kumar .. Petitioner v. Bhim Singh and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. S. S. Dinarpur, Advocate for the petitioner. Mr. Arihant Jain, Advocate for respondent No. 1. .. Rajesh Bindal J. The plaintiff has approached this Court challenging the order dated 26.11.2007, passed by the learned court below, whereby in an application filed under Order 7 Rule 11 of the Code of Civil Procedure by the respondent, he has been directed to affix ad valorem court fee. Learned counsel for the petitioner submitted that the petitioner had merely filed a suit for declaration challenging the sale deed dated 31.7.2002 executed by Chanda son of Shri Chand in favour of Bhim Singh son of Shri Chandgi Ram (respondents No. 2 and 1 respectively). As the property in dispute was ancestral, no ad valorem court fee was payable. It was further submitted that at this stage without there being any evidence on record, it was not incumbent on the court to have recorded a finding that the property is not ancestral and thereby directing the petitioner to affix ad valorem court fee. The object of respondents- defendants by filing the application was merely to delay the proceedings in the suit. On the other hand, learned counsel for the respondents submitted that the suit filed by the petitioner-plaintiff was grossly under valued. Under the garb of declaration, sale deed was challenged and for that purpose ad valorem court fee was payable. In the absence thereof, the learned court below had rightly held that CR No. 6697 of 2007 [2] the petitioner-plaintiff was liable to affix ad valorem court fee. Heard learned counsel for the parties and perused the paper book. A perusal of the plaint filed by the petitioner-plaintiff shows that it was pleaded therein that the petitioner is a member of joint Hindu family and the property in the hands of respondent No. 2 was a joint family property, which was inherited by him from his forefathers. The sale of joint Hindu family property by respondent No. 2 in favour of respondent No. 1 was without any legal necessity. The petitioner being a minor, the suit was filed through his mother to protect his interest. Under Order 7 Rule 11(b) CPC, the court is competent to reject the plaint in case it is found that the relief claimed is under valued and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so. A perusal of the impugned order shows that the learned court below without there being any evidence on record, has recorded a finding that the petitioner-plaintiff had failed to establish that the suit property is ancestral property. Meaning thereby without affording any opportunity to the petitioner- plaintiff to prove his claim set up in the suit by leading evidence, a finding was recorded that he had failed to establish the factum of property being ancestral property and a direction has been given to the petitioner-plaintiff to affix ad valorem court fee. In fact, in a summary manner, even opinion has been expressed on the main claim set up by the petitioner-plaintiff in the suit, where it is sought to be claimed that the suit property is joint Hindu family property, which was sold by respondent No. 2 without there being any legal necessity. Such a finding, in my opinion, should not have been recorded by the Court while deciding the application under Order 7 Rule 11 CPC in a summary manner. Learned counsel for the parties further submitted that the suit is at the initial stage and even the evidence of the petitioner-plaintiff is not yet complete. Considering the aforesaid facts, in my opinion, it would not be just and fair to direct the petitioner-plaintiff to affix ad valorem court fee at this stage by recording a tentative finding. It would be appropriate if the learned court below frames an issue regarding under valuation of the claim in the suit and records a finding thereon after the parties lead their evidence and then finally determines the same in accordance with law. For the reasons mentioned above, the impugned order is set aside and the learned court below is directed to deal with the issue in terms of the observations made above. CR No. 6697 of 2007 [3] The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge 27.4.2009 mk